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[2007] FMCA 25
General information, not legal advice.
Federal Magistrates Court of Australia
2007-01-18
Mr J
Original judgment source is linked above.
The applicant argues that in taking into account the reasons for the decision in the parents' case without providing the applicant with the appropriate notice under s.424A(1) Migration Act 1958 (the "Act") the Tribunal fell into jurisdictional error: SAAP v Minister for Immigration (2005) HCA 24. I appreciate that the respondent argues that the decision of the Tribunal in the parents' case was a matter placed before the child's Tribunal by the applicant himself. But to decide this fact would be to decide the whole case and there were raised in the hearing before me a number of arguments as to why the views expressed by the respondent might be correct and an equal number of arguments as to why it may not be. This tends me to the view that, subject to the question of my discretion on the matter of delay, the applicant has satisfied me there is a sufficiently arguable case for this matter to be reopened.
The delay in this case was considerable. Accepting as I do that the applicant was misled by his migration agent, there is still the question of why no steps were taken to find out what the decision of the court might have been. The applicant's father's evidence is that when he failed to get through to Mr Mollah there was little more that he could do because he did not understand English very well and he had no money to employ another agent or a solicitor. He did not do that, but he made the application to the Tribunal which was dismissed as incompetent and included the son's name amongst the applicants. If the applicant in this case had not been an infant, I would have been persuaded I should exercise my discretion against re-opening the case even though it is clearly arguable that a jurisdictional error has occurred and there would be a distinct advantage to an applicant to have the case reconsidered by the Tribunal at a time when the political situation in Bangladesh is so precarious. But the applicant is an infant and entirely dependent on his father for his application. It would be wrong to visit the sins of the father upon the child when his allegation is that his life might be in danger if he returns to Bangladesh.
I would therefore allow the notice of motion and set aside the orders which I made on 2 April 2004. The applicant's case shall be set down for hearing on a date to be fixed.
In the light of the very long delay occasioned by the actions of the applicant's litigation guardian who would be responsible for paying any costs awarded against the applicant I am disinclined to make the usual order for costs in this interlocutory motion. Whilst it is not appropriate that the respondent should pay the applicant's costs I think the respondents' costs should be reserved so that the court might consider whether they should be paid in the event that the applicant is unsuccessful in the substantive hearing.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM.
SZAKT
Minister for Immigration & Anor [2007] FMCA 25
It is not necessary in an interlocutory application of this type to show that the applicant would succeed, only that there is a reasonably arguable case. The test was set out by Kenny J in MZWQH v Minister for Immigration [2005] FCA 1491 in circumstances where an application in this court was dismissed for non-attendance, and where the application for review of that decision was considerably delayed:
"[27]...even if there is a valid and legitimate reason for the delay, the application for an extension of time must still be refused if the appeal would have no or very slight prospects of success: see Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319.
...
[29] When considering the application for reinstatement, the Federal Magistrate required the applicant to demonstrate a satisfactory reason for failing to appear and that he had an arguable underlying case. This was the correct test: see e.g. MZKAJ v Minister for Immigration [2005] FCA 1066 at [18] per North J."
See also Applicant M67/2003 v Minister for Immigration [2006] FCA 76 at [13].
(1992) 109 ALR 319