Somba v Minister for Home Affairs (No 2) [2018] FCA 1537

Somba v Minister for Home Affairs (No 2) [2018] FCA 1537

The Tribunal did not commit jurisdictional error. Although it had power to reinstate the dismissed merits review application, reinstatement would have made the earlier s 42A dismissal no longer extant. Because the 84 day period in s 500(6L) had already expired without a relevant decision remaining in force, the delegate's refusal to revoke the visa cancellation would be deemed affirmed under s 43 of the AAT Act. The Tribunal was therefore correct to refuse reinstatement as futile.

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Application for Judicial Review of an Administrative Appeals Tribunal Decision in a Migration Matter / Federal Court Application Dismissed After Hearing
Outcome
Application dismissed.
Legal Topics
['visa Cancellation on Character Grounds' 'mandatory Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'refusal to Revoke Visa Cancellation' 'administrative Appeals Tribunal Dismissal for Failure to Appear' 'reinstatement of AAT Application' 'construction of S 500(6 L) of the Migration Act 1958 (cth)' '84 Day Decision Period']
['migration Law' 'administrative Law' 'judicial Review'] ['visa Cancellation on Character Grounds' 'mandatory Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'refusal to Revoke Visa Cancellation' 'administrative Appeals Tribunal Dismissal for Failure to Appear' 'reinstatement of AAT Application' 'construction of S 500(6 L) of the Migration Act 1958 (cth)' '84 Day Decision Period']

Case Brief

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Procedural Posture

Application for Judicial Review of an Administrative Appeals Tribunal Decision in a Migration Matter / Federal Court Application Dismissed After Hearing

Legal Issues

  1. 1 ["Whether the Tribunal misconstrued and misapplied s 500(6L) of the Migration Act 1958 (Cth) when it refused to reinstate the applicant's merits review application as futile." 'Whether a prior dismissal under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) meant that s 500(6L)(c) was not engaged.' 'Whether the Tribunal failed to have regard to the beneficial and remedial purpose of s 42A(8A) of the Administrative Appeals Tribunal Act 1975 (Cth).']

Ratio Decidendi

The Tribunal did not commit jurisdictional error. Although it had power to reinstate the dismissed merits review application, reinstatement would have made the earlier s 42A dismissal no longer extant. Because the 84 day period in s 500(6L) had already expired without a relevant decision remaining in force, the delegate's refusal to revoke the visa cancellation would be deemed affirmed under s 43 of the AAT Act. The Tribunal was therefore correct to refuse reinstatement as futile.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the first respondent, to be assessed if not agreed.' 'The injunction granted by Thawley J on 4 July 2018 until further order be discharged.']