ACK16 v Minister for Immigration and Border Protection [2018] FCA 1554

ACK16 v Minister for Immigration and Border Protection [2018] FCA 1554

In exceptional circumstances where an applicant was denied a hearing through no fault of their own, the court should exercise its unfettered discretion to set aside the order made in the applicant's absence and remit the case for actual hearing, rather than strictly applying typical factors for reinstatement.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Application for Extension of Time and Leave to Appeal; Application Under S 39 B of the Judiciary Act 1903 (cth) / Appeal From the Federal Circuit Court Decision and Related Applications
Outcome
Appeal allowed (VID 98 of 2018); application under s 39B (VID 639 of 2018) dismissed as unnecessary.
Legal Topics
['extension of Time' 'leave to Appeal' 'setting Aside Dismissal for Non Appearance' 'natural Justice' 'judicial Review']
['migration Law' 'administrative Law'] ['extension of Time' 'leave to Appeal' 'setting Aside Dismissal for Non Appearance' 'natural Justice' 'judicial Review']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal; Application Under S 39 B of the Judiciary Act 1903 (cth) / Appeal From the Federal Circuit Court Decision and Related Applications

Legal Issues

  1. 1 ['Whether the applicant was denied an opportunity to be heard due to error in courtroom listing' "Whether the Federal Circuit Court's discretion in refusing reinstatement miscarried" 'Whether requirements in MZYEZ v Minister for Immigration and Citizenship should be strictly applied in the circumstances' 'Proper exercise of discretion to set aside orders made in absence of a party due to no fault of their own']

Ratio Decidendi

In exceptional circumstances where an applicant was denied a hearing through no fault of their own, the court should exercise its unfettered discretion to set aside the order made in the applicant's absence and remit the case for actual hearing, rather than strictly applying typical factors for reinstatement.

Court Disposition

Appeal allowed (VID 98 of 2018); application under s 39B (VID 639 of 2018) dismissed as unnecessary.

Orders

  • ['Extension of time to seek leave to appeal is allowed.' 'Applicant has leave to appeal.' 'Appeal is allowed.' 'Application for extension of time for judicial review remitted to the Federal Circuit Court of Australia for hearing.' 'Provision for short written submissions on costs.' 'Application in VID 639 of 2018...