Nguyen v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicants pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 This is an application commenced by originating application seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Federal Circuit Court of Australia. 2 The facts which give rise to this proceeding can be summarised as follows: (a) On 29 March 2011, the applicants lodged an application for Partner (Temporary) (Class UK) visas (partner visas). This was some time after the "relevant date" for the purposes of the relevant criteria. The "relevant date" was 11 June 2008. (b) On 9 September 2014, a delegate of the first respondent (the Minister) refused the application for the partner visas. (c) On 13 January 2015, the Migration Review Tribunal (the Tribunal) affirmed the decision of the delegate. The Tribunal held that there were not "compelling reasons" for not applying certain criteria for a partner visa. (d) On 7 April 2015, the applicants filed an application for judicial review in the Federal Circuit Court. This was filed approximately seven weeks out of time. (e) On 2 September 2015, the hearing in the Federal Circuit Court took place. The day before the hearing, the applicants applied by email for an adjournment of the hearing, attaching a medical certificate. The applicants did not appear at the hearing on 2 September 2015. The judge dismissed the application for an adjournment and also dismissed the proceeding on the basis of non-appearance. (f) On 21 September 2015, the applicants filed the originating application in this Court. 3 Since the date on which this proceeding was commenced, the Full Federal Court has handed down judgment in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. In that case, the Full Federal Court held that on the correct construction of the provisions relating to an application for a Partner (Temporary) (Class UK) visa, in determining whether or not the Minister was satisfied that there were "compelling reasons" for not applying certain criteria for a partner visa, the Minister was not confined to considering only "compelling reasons" which existed at the time of the application: see at [2] per Dowsett J; at [16]-[22] per Robertson J; at [26], [49] per Griffiths J. The Full Federal Court overruled Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 557; [2002] FCA 438: see Waensila at [22] per Robertson J; at [39] per Griffiths J. 4 The Minister correctly concedes that the effect of the Full Federal Court's decision in Waensila is that the Tribunal erred in the present case. It is clear from the reasons of the Tribunal that it proceeded on the basis that it was precluded from considering compelling reasons or circumstances that arose or occurred after the date of the application for the visas: see paragraph [15] of the Tribunal's reasons. Also, the Tribunal relied on the decision in Boakye-Danquah in paragraph [28] of its reasons. 5 In these circumstances, the Minister, while contending that the present proceeding ought to be dismissed, said he would consent to certain orders in the Federal Circuit Court designed to return the matter to the Tribunal for reconsideration. Assuming that the applicants file an application for reinstatement of the Federal Circuit Court proceeding within a reasonable period of time, the Minister stated that he would consent to the following orders being made by the Federal Circuit Court: (a) first, an order that the Federal Circuit Court proceeding be reinstated; (b) secondly, an order under s 477(2) of the Migration Act 1958 (Cth) extending time for the Federal Circuit Court proceeding to be commenced; and (c) thirdly, certiorari to quash the Tribunal's decision. 6 The basis of the last of those three orders would be the decision of the Full Federal Court in Waensila. 7 Of course, it would be a matter for the Federal Circuit Court to determine whether it made the three orders set out above. 8 Turning then to the current proceeding in this Court, in my view, no jurisdictional error is demonstrated in the decision of the Federal Circuit Court. 9 In relation to the dismissal of the adjournment application, it was open to the Federal Circuit Court, on the basis of the material before it, to dismiss the application. No error is shown in its reasons. 10 In relation to the dismissal of the proceeding for non-appearance, it was open to the Federal Circuit Court to dismiss the proceeding on this basis. No error is shown in relation to this aspect of its decision. 11 Accordingly, this proceeding will be dismissed. There is no reason why costs should not follow the event. Therefore there will be an order that the applicants pay the Minister's costs of this proceeding.