Montero v Minister for Immigration and Border Protection [2014] FCA 1096

Montero v Minister for Immigration and Border Protection [2014] FCA 1096

Because the appellant's construction argument was genuinely arguable, success before a single judge would require confronting a line of migration authority commencing with Peng and the possible binding effect of the Full Court's judgment in Jayasekara, and there was an unconsidered corporations law line of authority supporting a different construction, the appeal was an appropriate case for exercise of appellate jurisdiction by a Full Court under s 25(1AA)(b).

Jurisdiction
Australia
Judgment Date
22 August 2014
Procedural Posture
Appeal From the Federal Circuit Court of Australia in a Migration Matter / Application During a Single Judge Appeal for an Order Under S 25(1 Aa)(b) of the Federal Court of Australia Act 1976 (cth) That the Appeal Be Heard by a Full Court
Outcome
Matter to be heard by the Full Court of the Federal Court of Australia; costs reserved.
Legal Topics
['construction of Clause 3004(e)(ii) of the Migration Regulations 1994 (cth)' 'substantial Compliance With Visa Conditions' 'exercise of Appellate Jurisdiction by a Full Court Under S 25(1 Aa)(b)' 'notice of Contention Filed Out of Time']
['migration Law' 'administrative Law' 'federal Court Practice and Procedure'] ['construction of Clause 3004(e)(ii) of the Migration Regulations 1994 (cth)' 'substantial Compliance With Visa Conditions' 'exercise of Appellate Jurisdiction by a Full Court Under S 25(1 Aa)(b)' 'notice of Contention Filed Out of Time']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court of Australia in a Migration Matter / Application During a Single Judge Appeal for an Order Under S 25(1 Aa)(b) of the Federal Court of Australia Act 1976 (cth) That the Appeal Be Heard by a Full Court

Legal Issues

  1. 1 ['Whether the appeal raised a genuinely arguable construction issue concerning the words "the applicant has complied substantially with ... the conditions" in clause 3004(e)(ii) of the Migration Regulations 1994 (Cth).' 'Whether, given existing migration authority commencing with Peng and including Jayasekara, the appellate jurisdiction in the appeal should be exercised by a Full Court rather than a single judge.' "Whether the Minister's out-of-time notice of contention should be dealt with by the Full Court rather than separately by the single judge."]

Ratio Decidendi

Because the appellant's construction argument was genuinely arguable, success before a single judge would require confronting a line of migration authority commencing with Peng and the possible binding effect of the Full Court's judgment in Jayasekara, and there was an unconsidered corporations law line of authority supporting a different construction, the appeal was an appropriate case for exercise of appellate jurisdiction by a Full Court under s 25(1AA)(b).

Court Disposition

Matter to be heard by the Full Court of the Federal Court of Australia; costs reserved.

Orders

  • ['The appeal be adjourned for hearing by a Full Court on a date to be fixed by the Court and notified to the parties by a registrar.' 'The application for leave to file and reply upon a notice of contention be heard before the Full Court.' 'Costs reserved.' 'Liberty to apply.']