ADN18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ADN18 v Minister for Home Affairs [2019] FCA 692

Appeal from: Application for extension of time:  ADN18 v Minister for Home Affairs [2018] FCA 1677
File number: NSD 2220 of 2018
Judge: RARES J
Date of judgment: 6 May 2019
Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 65, 473DC, 473DD, 473DE, 477 and Pt 7AA

Cases cited:

ADN18 v Minister for Home Affairs [2018] FCA 1677

ADN18 v Minister for Home Affairs [2018] FCCA 1421

Bienstein v Bienstein (2003) 195 ALR 225

City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Craig v South Australia (1995) 184 CLR 163

CVK16 v Minister for Immigration and Border Protection (2017) 257 FCR 297

Jackamarra v Krakouer (1998) 195 CLR 516

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600

R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087

Waterford v The Commonwealth (1987) 163 CLR 54
Date of hearing: 6 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 29
Counsel for the Applicant: The Applicant appeared in person assisted by an interpreter
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: HWL Ebsworth
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

NSD 2220 of 2018
BETWEEN:

ADN18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

6 MAY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

  1. This is an application for an extension of time to appeal of two days from a decision of Griffiths J (the primary judge) (ADN18 v Minister for Home Affairs [2018] FCA 1677) dismissing the applicant’s application for Constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of a judge of the Federal Circuit Court (ADN18 v Minister for Home Affairs [2018] FCCA 1421) (the trial judge) refusing the applicant an extension of time of a little over a month under s 477 of the Migration Act 1958 (Cth) in which to challenge a decision of the Immigration Assessment Authority that affirmed the Minister’s delegate’s decision to refuse to grant a safe haven enterprise, or protection, visa to the applicant.

  2. The applicant gave evidence that he approached this Court’s Registry on 27 November 2018, being one day before the 21 days in which he could file a notice of appeal of right, but was informed by staff in the Registry that he needed to provide more information to satisfy…

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Details
Case
[2019] FCA 692
Decision Date

CaseChat Overview and Summary

The applicant in this case is a citizen of Sri Lanka who applied for a visa but was refused by a delegate of the Minister. The applicant sought judicial review of the decision in the Federal Circuit Court, but the trial judge dismissed his application. The applicant now seeks an extension of time to appeal the trial judge’s decision. The main issue before the court was whether the proposed grounds of appeal had a realistic prospect of success. The court considered whether the applicant could show that the trial judge’s decision was attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave.

The court found that the proposed grounds of appeal did not have a realistic prospect of success. The first ground was without content, and the second and third grounds were related but could not arise because the trial judge had already considered and rejected the merits of the proposed application for judicial review. The fourth ground also lacked any sufficient prospect of success. The court was unable to see any arguable error in the reasons of the primary judge, which appeared to be plainly correct.

The application for an extension of time was dismissed with costs. The court found that it was not in the interests of justice to grant the extension of time, as the proposed grounds of appeal did not have a realistic prospect of success. The applicant was ordered to pay the first respondent’s costs. The decision of the primary judge was upheld, and the trial judge’s decision was affirmed.

Orders

Orders of the court

1. The application for an extension of time be dismissed.

2. The applicant pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant appeared before me today representing himself, assisted by an interpreter, but he had been represented by counsel before the primary judge and the applicant had been represented by a solicitor before the trial judge.Background The applicant is a citizen of Sri Lanka and a Hindu Tamil. On 9 June 2016, he lodged his application for the visa. On 20 January 2017, a delegate of the Minister refused to grant it. The Minister referred that decision to the Authority under Pt 7AA of the Act. On 11 February 2017, the applicant’s representative provided a written submission that the Authority described as consisting of argument and commentary on evidence that was before the delegate. At the heart of the proposed judicial review application that the applicant wished to make to the Federal Circuit Court was his contention that he feared harm when he returned to Sri Lanka because he was a money lender. The Authority noted that the applicant’s submission to it had raised the contention that, were he to return to Sri Lanka, he would be imputed to be wealthy and that there were risks involved in the activity of money lending that the delegate had not assessed. The Authority found that there was no indication in the material before it that the applicant had claimed earlier that he feared harm on the basis of his money lending and or a perception that he might be wealthy, and that in his visa interview, he had not raised any claim concerning his activities as a money lender. The Authority found that this claim to fear harm by reason of his being a money lender was new information. However, it also found that in the visa interview, the applicant had described, in general terms, transactions that he had had with people who had borrowed money from him, would not repay him, then would blackmail him by threatening to report him to the Criminal Investigation Department and thus would avoid paying him money they owed, causing him significant financial loss. The Authority noted that the applicant had not provided any detail around any such incidents. It found that the broader suggestion, that he feared harm because of his role as a money lender or a perception that he was wealthy, was not made as a claim that he was, in fact, wealthy or would be perceived to be so. It found that this information all predated the delegate’s decision and that the applicant had not given any explanation as to why he could not have provided the information before the delegate’s decision was made or as to why it might be regarded as credible personal information not previously known and that, had it been known, it might have affected consideration of his claims. The Authority, thus, concluded that the applicant had not satisfied it about the matters set out at s 473DD(b) of the Act. The proceeding before the trial judge The applicant argued three grounds of review before the trial judge, namely that the Authority:·had not considered a claim made out on the facts, namely, the risk to him from his money lending activities and the blackmail associated with it;·had not considered submissions put to it about the money lending argument; and·had erred in failing to identify the full extent of conduct that the applicant had engaged in in Australia on Facebook which might expose him to risk due to conduct by third parties were he to return to Sri Lanka.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion, the case that the applicant sought to bring in the notice of appeal from the primary judge’s decision has no realistic prospect of success. Therefore, there is no basis on which to grant the short extension of time that the applicant needs in which to bring the proposed appeal. I do not consider it to be in the interests of justice to grant the extension of time. Conclusion For these reasons, the application for an extension of time must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

The proposed grounds of appeal from the primary judge’s decision are that his Honour erred in holding that: ·the trial judge had acted within jurisdiction under s 477 by refusing the application for an extension of time;·the trial judge had not been obliged to take into account the merits of the proposed application for judicial review as a mandatory relevant consideration;·the trial judge had not constructively failed to take into account the merits of the proposed application for judicial review; and·the new claims or inferences based on information before the delegate were new information, within the meaning of Pt 7AA of the Act. Consideration An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. The first ground is without content and, in any event, is answered by the decision in Craig 184 CLR 163. The second and third grounds are related. As the primary judge found, the trial judge had taken into account the merits of the proposed application for judicial review in considering an extension of time under s 477(2) but found them to be lacking in substance. Therefore, the question whether or not those merits had to be considered as a mandatory relevant consideration could not arise on the facts here because the trial judge had considered and rejected them. Thus, neither the second nor the third ground has any realistic prospect of success because, first, the trial judge took the merits into account and, secondly, he found that they lacked sufficient substance. In my opinion, the fourth ground also lacks any sufficient prospect of success. I am unable to see any arguable error in the reasons of the primary judge. They appear to me to be plainly correct.