AZAFX v Federal Circuit Court of Australia [2016] FCA 1139

FEDERAL COURT OF AUSTRALIA

AZAFX v Federal Circuit Court of Australia [2016] FCA 1139 Appeal from: AZAFW and AZAFX v Minister for Immigration and Border Protection [2016] FCCA 500

File number(s): SAD 102 of 2016

Judge(s): CHARLESWORTH J

Date of judgment: 19 September 2016

Catchwords: ADMINISTRATIVE LAW – judicial review of judgment and orders of Federal Circuit Court – error of law by Federal Circuit Court affecting power conferred by s 477(2) of the Migration Act 1958 (Cth) – jurisdictional error warranting the grant of relief under s 39B of the Judiciary Act 1903 (Cth) – applicable principles in identifying jurisdictional error by an inferior court MIGRATION – application to Federal Circuit Court pursuant to s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to commence an application for judicial review – where adequate explanation for delay – where respondent not prejudiced by the extension sought – where proposed grounds of review had reasonable prospects of success – applicable principles

Legislation: Evidence Act 1995 (NSW), s 17(2) Federal Court of Australia Act 1976 (Cth), ss 24, 33 Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 65, 476, 476A(3)(a), 477, 477A, 486A, Pt 8 Occupational Health and Safety Act 1983 (NSW), ss 15, 16

Cases cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Craig v South Australia (1995) 184 CLR 163 Dietrich v The Queen (1992) 177 CLR 292 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667, [2011] HCA 23 Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 R v Gray; Ex parte Marsh (1985) 157 CLR 351 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 Wei v Minister for Immigration and Border Protection (2015) 148 ALD 226