Minister for Immigration, Citizenship and Multicultural Affairs v FJT17 [2023] FCA 348

Minister for Immigration, Citizenship and Multicultural Affairs v FJT17 [2023] FCA 348

The appeal was allowed because the primary judge quickly terminated the hearing after asking whether the Minister's solicitor relied on written submissions, thereby denying the Minister a reasonable opportunity to make intended oral submissions on questions of mixed fact and law concerning the Tribunal's reasons. That denial of procedural fairness deprived the Minister of the possibility of a successful outcome and caused a miscarriage of justice. Given the first respondent had since obtained a permanent visa and withdrawn the remitted review application, the appropriate course was to dismiss the judicial review application rather than remit it. The appeal succeeded on a question of law,...

Jurisdiction
Australia
Judgment Date
18 April 2023
Procedural Posture
Migration Appeal From Orders of the Federal Circuit and Family Court of Australia (division 2) Quashing a Decision of the Administrative Appeals Tribunal and Requiring Redetermination According to Law / Federal Court Appeal Determined by Reference to Written Submissions and Proposed Consent Orders
Outcome
Appeal allowed; relevant orders of the Federal Circuit and Family Court of Australia (Division 2) set aside; amended application for review dismissed; no order as to costs of the appeal; costs certificate granted to the first respondent.
Legal Topics
['protection Visa Refusal' 'judicial Review Under S 476 of the Migration Act 1958 (cth)' 'denial of Procedural Fairness by Primary Judge' 'costs Certificate Under S 6 of the Federal Proceedings (costs) Act 1981 (cth)']
['migration Law' 'administrative Law' 'procedural Fairness' 'costs'] ['protection Visa Refusal' 'judicial Review Under S 476 of the Migration Act 1958 (cth)' 'denial of Procedural Fairness by Primary Judge' 'costs Certificate Under S 6 of the Federal Proceedings (costs) Act 1981 (cth)']

Case Brief

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit and Family Court of Australia (division 2) Quashing a Decision of the Administrative Appeals Tribunal and Requiring Redetermination According to Law / Federal Court Appeal Determined by Reference to Written Submissions and Proposed Consent Orders

Legal Issues

  1. 1 ['Whether the primary judge denied the Minister procedural fairness by not giving the Minister a reasonable opportunity to present oral submissions.' "Whether, despite the parties' agreement, arguable error was demonstrated to warrant the exercise of appellate jurisdiction to set aside the primary judge's decision." 'Whether the matter should be remitted for rehearing or brought to an end because the first respondent had been granted a permanent visa and had withdrawn the remitted review application.' 'Whether the first respondent should be granted a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

The appeal was allowed because the primary judge quickly terminated the hearing after asking whether the Minister's solicitor relied on written submissions, thereby denying the Minister a reasonable opportunity to make intended oral submissions on questions of mixed fact and law concerning the Tribunal's reasons. That denial of procedural fairness deprived the Minister of the possibility of a successful outcome and caused a miscarriage of justice. Given the first respondent had since obtained a permanent visa and withdrawn the remitted review application, the appropriate course was to dismiss the judicial review application rather than remit it. The appeal succeeded on a question of law,...

Court Disposition

Appeal allowed; relevant orders of the Federal Circuit and Family Court of Australia (Division 2) set aside; amended application for review dismissed; no order as to costs of the appeal; costs certificate granted to the first respondent.

Orders

  • ['The appeal be allowed.' 'Orders 2 to 5 of the Orders of the Federal Circuit and Family Court of Australia (Division 2) dated 17 February 2022 in proceeding MLG 2692 of 2017 are set aside and in lieu thereof it be ordered that the amended application for review filed on 20 January 2022 be dismissed.' 'There be no...