Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

The application to set aside the 17 June 2014 orders was dismissed because the applicants failed to provide a proper explanation for their absence at that hearing and failed to show a reasonably arguable case. The first applicant had not provided evidence of achieving competent English through the specified tests within the required period, so refusal of the visa was inevitable and the MRT did not commit jurisdictional error by applying the Migration Act and Migration Regulations. The applicants were in substance seeking merits review, which neither the Federal Court nor the Federal Circuit Court could undertake.

Jurisdiction
Australia
Judgment Date
18 August 2014
Procedural Posture
Interlocutory Application to Set Aside Orders Dismissing an Application for Leave to Appeal and for an Extension of Time in Migration Proceedings / Application Under R 39.05 of the Federal Court Rules 2011 (cth), Heard in the Applicants' Absence
Outcome
Application dismissed with costs fixed in favour of the first respondent.
Legal Topics
['setting Aside Orders Made in Absence of a Party' 'failure to Attend Hearing' 'leave to Appeal' 'extension of Time to Appeal' 'federal Circuit Court Jurisdiction Under S 476 of the Migration Act 1958 (cth)' 'skilled Graduate Visa Competent English Criterion' 'jurisdictional Error']
['practice and Procedure' 'migration Law' 'judicial Review'] ['setting Aside Orders Made in Absence of a Party' 'failure to Attend Hearing' 'leave to Appeal' 'extension of Time to Appeal' 'federal Circuit Court Jurisdiction Under S 476 of the Migration Act 1958 (cth)' 'skilled Graduate Visa Competent English Criterion' 'jurisdictional Error']

Case Brief

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Procedural Posture

Interlocutory Application to Set Aside Orders Dismissing an Application for Leave to Appeal and for an Extension of Time in Migration Proceedings / Application Under R 39.05 of the Federal Court Rules 2011 (cth), Heard in the Applicants' Absence

Legal Issues

  1. 1 ["Whether the Court should hear and determine the interlocutory application in the applicants' absence." "Whether the orders made on 17 June 2014 dismissing the applicants' application for leave to appeal and for an extension of time should be set aside under r 39.05 of the Federal Court Rules 2011 (Cth)." 'Whether the applicants provided a proper explanation for their failure to attend the hearing on 17 June 2014.' 'Whether the applicants had a reasonably arguable case that the Federal Circuit Court erred in concluding that its jurisdiction had not been enlivened.' 'Whether the Migration Review Tribunal committed jurisdictional error in relation to the competent English requirement for the Skilled Graduate visa.']

Ratio Decidendi

The application to set aside the 17 June 2014 orders was dismissed because the applicants failed to provide a proper explanation for their absence at that hearing and failed to show a reasonably arguable case. The first applicant had not provided evidence of achieving competent English through the specified tests within the required period, so refusal of the visa was inevitable and the MRT did not commit jurisdictional error by applying the Migration Act and Migration Regulations. The applicants were in substance seeking merits review, which neither the Federal Court nor the Federal Circuit Court could undertake.

Court Disposition

Application dismissed with costs fixed in favour of the first respondent.

Orders

  • ['The application dated 8 July 2014 is dismissed.' "The applicants are to pay the first respondent's costs fixed, on the first respondent's application, in the sum of $600."]