FBS18 v Minister for Home Affairs [2019] FCAFC 196

FBS18 v Minister for Home Affairs [2019] FCAFC 196

The primary judge was required to consider whether it was in the interests of justice to reinstate the application, and did so by reference to the factors he considered significant, particularly the applicant's untruthfulness and absence of a reasonable explanation for non-attendance. The absence of express reference to other potential factors such as delay or prejudice to the Minister did not constitute legal error, and the exercise of discretion was within the judge's authority.

Parties
Applicant: FBS18; First Respondent: Minister for Home Affairs; Second Respondent: Immigration Assessment Authority
Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From Federal Circuit Court Judgment
Outcome
The application for an extension of time is granted. The application for leave to appeal is refused. The applicant is to pay the costs of the first respondent, as agreed or assessed.
Legal Topics
Extension of Time, Leave to Appeal, Judicial Discretion, Dismissal for Non Appearance, Setting Aside Judgments
Administrative Law Practice and Procedure Extension of Time Leave to Appeal Judicial Discretion Dismissal for Non Appearance Setting Aside Judgments

Case Brief

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Parties

FBS18

Applicant

Minister for Home Affairs

First Respondent

Immigration Assessment Authority

Second Respondent

Procedural Posture

Application for Extension of Time and Leave to Appeal / Application for Extension of Time and Leave to Appeal From Federal Circuit Court Judgment

Legal Issues

  1. 1 Whether the primary judge failed to consider one or more relevant considerations in refusing to reinstate the applicant's application for judicial review.
  2. 2 Whether the primary judge failed to balance the relevant considerations in exercising discretion under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).

Ratio Decidendi

The primary judge was required to consider whether it was in the interests of justice to reinstate the application, and did so by reference to the factors he considered significant, particularly the applicant's untruthfulness and absence of a reasonable explanation for non-attendance. The absence of express reference to other potential factors such as delay or prejudice to the Minister did not constitute legal error, and the exercise of discretion was within the judge's authority.

Court Disposition

The application for an extension of time is granted. The application for leave to appeal is refused. The applicant is to pay the costs of the first respondent, as agreed or assessed.

Orders

  • The application for an extension of time is granted.
  • The application for leave to appeal is refused.