Haque v Minister for Immigration & Citizenship (No 2) [2010] FCA 529

Haque v Minister for Immigration & Citizenship (No 2) [2010] FCA 529

Because the Court had proceeded to dispose of the substantive appeal after argument directed to threshold leave issues, the first respondent had been deprived of the opportunity to make full oral argument on the merits, particularly on the evidentiary or persuasive burden relating to section 66(2)(d)(iv) of the Migration Act 1958 (Cth). That was a significant denial of procedural fairness, and as the relevant orders had not been entered, the appropriate course under order 35, rule 7(1) was to set aside the judgment and orders of 13 April 2010 and relist the appeal for hearing on the ground for which leave had been granted.

Jurisdiction
Australia
Judgment Date
24 May 2010
Procedural Posture
Migration Appeal; Motion to Set Aside Orders / Motion by the First Respondent Under Order 35, Rule 7(1) of the Federal Court Rules to Set Aside Unentered Orders Made on 13 April 2010
Outcome
Motion granted; orders made on 13 April 2010 set aside; appeal listed for hearing.
Legal Topics
['procedural Fairness' 'setting Aside Unentered Orders' 'leave to Introduce New Grounds of Appeal' 'migration Act Notice Requirements']
['migration Law' 'administrative Law' 'civil Procedure'] ['procedural Fairness' 'setting Aside Unentered Orders' 'leave to Introduce New Grounds of Appeal' 'migration Act Notice Requirements']

Case Brief

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Procedural Posture

Migration Appeal; Motion to Set Aside Orders / Motion by the First Respondent Under Order 35, Rule 7(1) of the Federal Court Rules to Set Aside Unentered Orders Made on 13 April 2010

Legal Issues

  1. 1 ['Whether the orders made on 13 April 2010 should be set aside under order 35, rule 7(1) of the Federal Court Rules before entry' 'Whether disposing of the substantive appeal after argument directed to leave to introduce new grounds of appeal deprived the first respondent of procedural fairness' 'Whether Stead v State Government Insurance Commission (1986) 161 CLR 141 required a different approach']

Ratio Decidendi

Because the Court had proceeded to dispose of the substantive appeal after argument directed to threshold leave issues, the first respondent had been deprived of the opportunity to make full oral argument on the merits, particularly on the evidentiary or persuasive burden relating to section 66(2)(d)(iv) of the Migration Act 1958 (Cth). That was a significant denial of procedural fairness, and as the relevant orders had not been entered, the appropriate course under order 35, rule 7(1) was to set aside the judgment and orders of 13 April 2010 and relist the appeal for hearing on the ground for which leave had been granted.

Court Disposition

Motion granted; orders made on 13 April 2010 set aside; appeal listed for hearing.

Orders

  • ['The orders made on 13 April 2010 be set aside.' 'The appeal be listed for hearing on 18 June 2010 at 9.00am (Perth time).']