FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38

FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38

The Court refused to set aside the dismissal order because the appellant's explanation for not attending the hearing was less than satisfactory and, more importantly, the proposed appeal grounds had no reasonably arguable prospect of success. The grounds either disclosed no jurisdictional error, failed factually, sought impermissible merits review, or would not be granted leave because they lacked merit.

Jurisdiction
Australia
Judgment Date
31 January 2020
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia; Interlocutory Application to Set Aside a Dismissal Order Under R 36.75(2) of the Federal Court Rules 2011 / Application Heard and Determined on 31 January 2020 After the Appeal Had Been Dismissed in the Appellant's Absence on 18 November 2019
Outcome
The appellant's interlocutory application to set aside the orders made on 18 November 2019 was refused.
Legal Topics
['protection Visa Refusal' "application to Set Aside Order Made in Party's Absence" 'jurisdictional Error' 'procedural Fairness' 'adverse Credibility Findings' 'leave to Raise New Grounds on Appeal']
['migration' 'administrative Law' 'civil Procedure'] ['protection Visa Refusal' "application to Set Aside Order Made in Party's Absence" 'jurisdictional Error' 'procedural Fairness' 'adverse Credibility Findings' 'leave to Raise New Grounds on Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia; Interlocutory Application to Set Aside a Dismissal Order Under R 36.75(2) of the Federal Court Rules 2011 / Application Heard and Determined on 31 January 2020 After the Appeal Had Been Dismissed in the Appellant's Absence on 18 November 2019

Legal Issues

  1. 1 ["Whether the order made on 18 November 2019 dismissing the appeal in the appellant's absence should be set aside under r 36.75(2) of the Federal Court Rules 2011." 'Whether the appellant adequately explained her failure to attend the appeal hearing.' 'Whether the appellant had a reasonably arguable prospect of success on the substantive appeal.' 'Whether the Tribunal denied procedural fairness, made arbitrary or legally unreasonable credibility findings, failed to consider Nepalese social norms, or failed to disclose a s 438 certificate.']

Ratio Decidendi

The Court refused to set aside the dismissal order because the appellant's explanation for not attending the hearing was less than satisfactory and, more importantly, the proposed appeal grounds had no reasonably arguable prospect of success. The grounds either disclosed no jurisdictional error, failed factually, sought impermissible merits review, or would not be granted leave because they lacked merit.

Court Disposition

The appellant's interlocutory application to set aside the orders made on 18 November 2019 was refused.

Orders

  • ["The appellant's interlocutory application dated 16 December 2019 to set aside the orders made on 18 November 2019 be refused." "The appellant pay the first respondent's costs of the application." 'The name of the first respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and...