ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16

ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16

The Federal Circuit Court's discretionary dismissal miscarried because it decided the matter without knowing that the Applicant had, before the hearing, asked the Minister's solicitor how he could apply to appear by telephone. That relevant matter was excluded from consideration, amounting to House v The King error and denying the Applicant a hearing on the merits. The delay in filing was also compellingly explained by the late provision of written reasons and the Applicant's bridging visa circumstances.

Jurisdiction
Australia
Judgment Date
17 January 2019
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal From the Federal Circuit Court / Application for Extension of Time and Leave to Appeal; Appeal Allowed
Outcome
Time extended, leave to appeal granted, appeal allowed with costs, Federal Circuit Court orders set aside, and proceeding remitted for trial in the Federal Circuit Court.
Legal Topics
['extension of Time' 'leave to Appeal' 'dismissal for Non Appearance' 'adjournment' 'appearance by Telephone' 'discretionary Error']
['migration' 'administrative and Constitutional Law and Human Rights' 'federal Civil Procedure'] ['extension of Time' 'leave to Appeal' 'dismissal for Non Appearance' 'adjournment' 'appearance by Telephone' 'discretionary Error']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal From the Federal Circuit Court / Application for Extension of Time and Leave to Appeal; Appeal Allowed

Legal Issues

  1. 1 ['Whether time should be extended for the Applicant to apply for leave to appeal from the Federal Circuit Court orders.' 'Whether leave to appeal should be granted from the interlocutory dismissal for non-appearance.' 'Whether the Federal Circuit Court erred in dismissing the application under r 13.03C(1)(c) where the Applicant had sought an adjournment and attempted to appear by telephone.']

Ratio Decidendi

The Federal Circuit Court's discretionary dismissal miscarried because it decided the matter without knowing that the Applicant had, before the hearing, asked the Minister's solicitor how he could apply to appear by telephone. That relevant matter was excluded from consideration, amounting to House v The King error and denying the Applicant a hearing on the merits. The delay in filing was also compellingly explained by the late provision of written reasons and the Applicant's bridging visa circumstances.

Court Disposition

Time extended, leave to appeal granted, appeal allowed with costs, Federal Circuit Court orders set aside, and proceeding remitted for trial in the Federal Circuit Court.

Orders

  • ['Extend the time within which to apply for leave to appeal to 9 July 2018.' 'Grant leave to the Applicant to appeal from the order made by the Federal Circuit Court on 19 June 2018.' 'Appeal allowed with costs.' 'Set aside orders 1 and 2 made by the Federal Circuit Court on 19 June 2018.' 'Remit the proceeding for...