FEDERAL COURT OF AUSTRALIA
Somba v Minister for Home Affairs [2019] FCAFC 150
Appeal from: Somba v Minister for Home Affairs (No 2) [2018] FCA 1537 File number: NSD 2002 of 2018 Judges: LOGAN, STEWARD AND JACKSON JJ Date of judgment: 30 August 2019 Catchwords: MIGRATION - appeal from decision of the Federal Court of Australia - review by Administrative Appeals Tribunal of decision not to revoke mandatory cancellation of visa - Tribunal dismissed application for review for nonappearance - whether reinstatement of application for review futile because of 84 day period for Tribunal decision on review - meaning of 'decision' in s 500(6L)(c) of the Migration Act 1958 (Cth) - appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 3(3), 18A, 28, 29, 29AC, 33, 33(1AB), 37, 42A, 42C, 43, Part 4 Division 5
Migration Act 1958 (Cth) ss 476A, 500, 501, 501CA, 501G, Parts 5, 7, 9
Cases cited: Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Foots v Southern Cross Mine Management Pty Ltd[2007] HCA 56; (2007) 234 CLR 52
Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383
Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
Date of hearing: 24 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: Mr JL Cameron Solicitor for the Appellant: AUM Legal Counsel for the First Appellant: Mr PR MacLiver Solicitor for the First Appellant: Australian Government Solicitor Counsel for the Second Appellant: The second respondent filed a submitting notice save as to costs ORDERS
NSD 2002 of 2018 BETWEEN: HANZ CHRISTIAN SOMBA
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
LOGAN, STEWARD AND JACKSON JJ
DATE OF ORDER:
30 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Paragraphs 1 and 2 of the orders of the primary judge are set aside and, in their place, it is ordered that:
(a)The application is allowed.
(b)A writ of certiorari issue directed to the second respondent, quashing its decision made on 5 June 2018.
(c)A writ of mandamus issue directed to the second respondent, requiring it to determine the appellant's application for reinstatement of his application for review according to law.
(d)The first respondent pay the appellant's costs of the application before the primary judge.
3.The first respondent…
Keep reading for free
Create a free CaseChat account to read Somba v Minister for Home Affairs and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCAFC 150
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant's application for review could be reinstated after the expiration of the 84-day period prescribed by s 500(6L)(c) of the Migration Act. The court also needed to interpret the meaning of 'decision' in the context of the Act and whether the Tribunal's decision to dismiss the application due to the applicant's non-appearance could be considered a 'decision' for the purpose of the 84-day period. Furthermore, the court had to consider the provisions of the AAT Act, particularly s 8, in relation to the reinstatement of an application for review.
The court found that the 84-day period in s 500(6L)(c) of the Migration Act began to run from the date the Tribunal dismissed the application for review due to the applicant's non-appearance, not from the date of the original decision not to revoke the visa cancellation. The court concluded that the Tribunal's decision to dismiss the application was indeed a 'decision' for the purpose of the Act. However, the court held that the dismissal of the application for review did not preclude the possibility of the applicant's application being reinstated, provided that the application was made within the prescribed timeframe under s 8 of the AAT Act. The court allowed the appeal, set aside the orders of the primary judge, and ordered that the application be allowed, the decision of the Minister be quashed, and the Tribunal be directed to determine the applicant's application for reinstatement according to law. Additionally, the court ordered that the respondent pay the applicant's costs of the application before the primary judge and this appeal.
Orders
Orders of the court
1. The appeal is allowed.
2. Paragraphs 1 and 2 of the orders of the primary judge are set aside and, in their place, it is ordered that:
(a) The application is allowed.
(b) A writ of certiorari issue directed to the second respondent, quashing its decision made on 5 June 2018.
(c) A writ of mandamus issue directed to the second respondent, requiring it to determine the appellant's application for reinstatement of his application for review according to law.
(d) The first respondent pay the appellant's costs of the application before the primary judge.
3. The first respondent must pay the appellant's costs of this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It is also convenient at this point to set out the text of relevant provisions of s 42A of the AAT Act:Dismissal if parties consent(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.…Deemed dismissal - applicant discontinues or withdraws application(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn....(1B)If notification is given in accordance with subsection (1A) …, the Tribunal is taken to have dismissed the application without proceeding to review the decision.Dismissal if party fails to appear(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:(a)if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or(b)in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.Dismissal if decision is not reviewable(4)The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction(5)If an applicant for a review of a decision fails within a reasonable time:(a)to proceed with the application; or(b)to comply with a direction by the Tribunal in relation to the application;the Tribunal may dismiss the application without proceeding to review the decision.…Reinstatement of application(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.(8B)For the purposes of subsections (8) and (8A), the period is:(a)28 days after the party receives notification that the application has been dismissed; or(b)if the party requests an extension - such longer period as the Tribunal, in special circumstances, allows.(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.Consideration