SHAIBU v Minister for Immigration - [2018] FCCA 442

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIBU v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 442

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – student visa refusal.

PRACTICE AND PROCEDURE – Application in a case for adjournment of one year of hearing date – factors for consideration – abuse of process – contrary to the interests of justice.

LEGAL PRACTITIONERS – Duty to the Court – where application for adjournment an abuse of process.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42
Federal Circuit Court Rules 2001 (Cth), r.1.03
Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth)

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

AQN15 v Minister for Immigration & Border Protection [2016] FCA 571
AQN15 v Minister for Immigration & Border Protection [2016] HCASL 183

AYE16 v Minister for Immigration & Anor [2017] FCCA 1424
AYE16v Minister for Immigration & Border Protection [2018] FCA 108
BHG16 v Minister for Immigration & Anor [2017] FCCA 2745
CVA17 v Minister for Immigration & Anor [2017] FCCA 3208

Applicant:

SEKINATU SHAIBU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 609 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

26 February 2018

Date of Last Submission:

26 February 2018

Delivered at:

Perth

Delivered on:

26 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr F Faris

Solicitors for the Applicant:

Rebus Legal

Counsel for the First Respondent:

Mr A Gerrard

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the applicant’s application in a case filed 25 January 2018 be dismissed.
The applicant pay the first respondent’s costs in the sum of $1000.00 by 26 March 2018.
The matter be listed for a further directions hearing at 9.15am on 8 March 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 609 of 2017

SEKINATU SHAIBU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 442
Decision Date: 26 February 2018

CaseChat Overview and Summary

Shaibu (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse his application for a student visa. The Minister for Immigration (the respondent) was the opposing party.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the applicant's application for an adjournment of the hearing date for one year constituted an abuse of process and was contrary to the interests of justice. This also involved considering the duty owed by legal practitioners to the Court in making such an application.

His Honour Judge Lucev found that the application for a lengthy adjournment was an abuse of process. The Court noted that the applicant had not provided sufficient evidence to justify such an extensive delay, and that the application was not made in good faith. The Court emphasised that legal practitioners have a duty to the Court to act honestly and not to mislead it, and that applications for adjournment must be supported by cogent reasons. The Court considered the potential prejudice to the respondent and the efficient administration of justice.

The Court dismissed the application for adjournment.

Orders