Bi v Minister for Home Affairs [2019] FCA 563

Bi v Minister for Home Affairs [2019] FCA 563

The application for leave to appeal was not incompetent for non-compliance with rule 35.12(2) or s 486I, as s 486I does not apply to ancillary proceedings such as this. No error in the primary judge’s exercise of discretion to refuse reopening the case was established, as the judge considered all relevant factors and the applicants failed to provide sufficient explanation or demonstrate substantive injustice.

Parties
First Applicant: Shujuan Bi; Second Applicant: Teng Mu; First Respondent: Minister for Home Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Application for Leave to Appeal / Judgment on Application for Leave to Appeal and Objection to Competency
Outcome
Application for leave to appeal dismissed; notice of objection to competency dismissed
Legal Topics
Leave to Appeal, Reopening Cases, Judicial Review, Procedural Non Compliance
Migration Law Administrative Law Leave to Appeal Reopening Cases Judicial Review Procedural Non Compliance

Case Brief

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Parties

Shujuan Bi

First Applicant

Teng Mu

Second Applicant

Minister for Home Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Application for Leave to Appeal / Judgment on Application for Leave to Appeal and Objection to Competency

Legal Issues

  1. 1 Whether the application for leave to appeal was incompetent due to non-compliance with rule 35.12(2) of the Federal Court Rules 2011 (Cth)
  2. 2 Whether it was incompetent due to failure to include the certification required by s 486I of the Migration Act 1958 (Cth)
  3. 3 Whether the primary judge erred in the exercise of discretion in refusing to reopen the applicants’ case

Ratio Decidendi

The application for leave to appeal was not incompetent for non-compliance with rule 35.12(2) or s 486I, as s 486I does not apply to ancillary proceedings such as this. No error in the primary judge’s exercise of discretion to refuse reopening the case was established, as the judge considered all relevant factors and the applicants failed to provide sufficient explanation or demonstrate substantive injustice.

Court Disposition

Application for leave to appeal dismissed; notice of objection to competency dismissed

Orders

  • The notice of objection to competency filed by the first respondent on 18 September 2018 is dismissed.
  • The amended application for leave to appeal filed by the applicants on 20 February 2019 is dismissed.