AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305

AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305

The interlocutory application for reinstatement was dismissed because the applicant did not provide a reasonable excuse for failing to attend the appeal hearing, and her substantive appeal had no reasonable prospects of success. The delegate's decision was sent to the applicant's last provided address, so the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 March 2016
Procedural Posture
Migration Appeal; Interlocutory Application for Reinstatement of Appeal / Hearing of Interlocutory Application After Appeal Was Dismissed in the Applicant's Absence
Outcome
Applicant's interlocutory application dismissed with costs payable to the first respondent.
Legal Topics
['reinstatement of Appeal Dismissed for Non Attendance' 'notification of Migration Decisions' 'time Limit for Tribunal Review' 'protection Visa Refusal' 'jurisdiction of Tribunal']
['migration' 'administrative Law'] ['reinstatement of Appeal Dismissed for Non Attendance' 'notification of Migration Decisions' 'time Limit for Tribunal Review' 'protection Visa Refusal' 'jurisdiction of Tribunal']

Source-derived case record

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Procedural Posture

Migration Appeal; Interlocutory Application for Reinstatement of Appeal / Hearing of Interlocutory Application After Appeal Was Dismissed in the Applicant's Absence

Legal Issues

  1. 1 ['Whether the applicant gave a reasonable excuse for failing to attend the appeal hearing on 3 March 2016.' 'Whether the first respondent would suffer prejudice if the appeal were reinstated.' "Whether the applicant's substantive appeal had reasonably arguable prospects of success." "Whether the Tribunal had jurisdiction where the application for review was lodged outside the prescribed 28 day period after deemed notification of the delegate's decision."]

Ratio Decidendi

The interlocutory application for reinstatement was dismissed because the applicant did not provide a reasonable excuse for failing to attend the appeal hearing, and her substantive appeal had no reasonable prospects of success. The delegate's decision was sent to the applicant's last provided address, so the statutory deemed notification provisions applied. Even correcting the Tribunal's factual error about the date of deemed notification, the applicant's Tribunal review application lodged on 22 July 2014 was outside the 28 day time limit, and the Tribunal therefore had no jurisdiction. The absence of prejudice to the Minister was insufficient to justify reinstatement.

Court Disposition

Applicant's interlocutory application dismissed with costs payable to the first respondent.

Orders

  • ["The applicant's interlocutory application filed 8 March 2016 is dismissed." "The applicant is to pay the first respondent's costs of the interlocutory application as agreed or assessed."]