Somba v Minister for Home Affairs (No 2)

The case of Somba v Minister for Home Affairs (No 2) involved the applicant, Somba, who sought a judicial review of the Minister for Home Affairs' decision to cancel his transitional permanent (class BF) visa on character grounds. The cancellation was pursuant to section 501(3A) of the Migration Act 1958 (Cth). The delegate of the Minister refused to revoke the visa cancellation. The Administrative Appeals Tribunal dismissed Somba's application for review due to his failure to appear at the hearing. The Tribunal further refused to reinstate the application for review due to the expiration of the 84-day period outlined in section 500(6L)(c) of the Migration Act. Somba sought judicial review of this decision, raising questions about the operation of section 42A of the Administrative Appeals Tribunal Act 1975 (Cth).

The primary legal issue before the court was whether the Federal Court could grant an order reinstating Somba's application for review before the Administrative Appeals Tribunal. This involved interpreting the interplay between section 500(6L) of the Migration Act and section 42A of the Administrative Appeals Tribunal Act. The court considered whether a reinstatement order would be futile under section 500(6L), which limits the Tribunal's ability to exercise its review powers after the specified period has expired.

The court held that the application for judicial review should be dismissed. It determined that the operation of section 500(6L) of the Migration Act rendered any reinstatement order by the court futile. The Tribunal was unable to exercise its review powers after the 84-day period had lapsed. Consequently, the court found that granting the relief sought by Somba would be ineffective, as the Tribunal would still be constrained by the statutory provisions. The court also discharged the injunction previously granted by Thawley J on 4 July 2018.

In summary, the Federal Court dismissed Somba's application for judicial review, ordered him to pay the costs of the Minister for Home Affairs, and discharged the injunction previously granted.