ADN18 v Minister for Home Affairs - [2018] FCA 1677

FEDERAL COURT OF AUSTRALIA
ADN18 v Minister for Home Affairs [2018] FCA 1677

Appeal from: ADN18 v Minister for Home Affairs [2018] FCCA 1421

File number: NSD 1118 of 2018

Judge: GRIFFITHS J

Date of judgment: 7 November 2018

Catchwords: MIGRATION – application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a judgment and orders of the Federal Circuit Court of Australia refusing the applicant’s application for an extension of time under s 477 of the Migration Act 1958 (Cth) – whether the primary judge committed jurisdictional error by not properly considering the proposed grounds of review, in upholding the finding of the Immigration Assessment Authority (IAA) that the applicant did not raise a claim for protection (the claim) before the delegate and the claim was therefore “new information” under ss 473DC and 473DD of the Migration Act 1958 (Cth) – whether the primary judge committed jurisdictional error because his assessment that the proposed grounds did not have arguable merit was unreasonable and inconsistent with established legal principles – whether it is a mandatory relevant consideration for the primary judge to assess the strength of the proposed grounds of review in the context of a s 477 application – Held: application dismissed, with costs

Legislation:
Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 5J, 473DC, 473DD, 477

Cases cited:
AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037

BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514

BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508

Craig v South Australia [1995] HCA 58; 184 CLR 163

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481

SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456

Date of hearing: 5 November 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicant: Mr O Jones

Solicitor for the Applicant: Rasan T. Selliah & Associates

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 1118 of 2018

BETWEEN:
ADN18

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

7 NOVEMBER 2018

THE COURT ORDERS THAT:
1.The originating application filed on 26 June 2018 be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT
GRIFFITHS J:

The applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 1677
Decision Date: 7 November 2018

CaseChat Overview and Summary

The applicant, ADN18, sought judicial review of a decision by the Federal Circuit Court of Australia, which had dismissed the applicant’s application for an extension of time under section 477 of the Migration Act 1958 (Cth). The dispute centred on the refusal of the Federal Circuit Court to grant the applicant an extension of time to raise a claim for protection (the claim), which the Immigration Assessment Authority had found was not raised before the delegate and was therefore considered "new information" under sections 473DC and 473DD of the Migration Act. The applicant argued that the primary judge erred in not properly considering the proposed grounds of review and in concluding that the proposed grounds did not have arguable merit.

The court was required to determine whether the primary judge committed a jurisdictional error by failing to adequately assess the proposed grounds of review, and if the primary judge’s assessment of the arguable merit of the proposed grounds was inconsistent with established legal principles. Additionally, the court needed to consider whether it is a mandatory relevant consideration for the primary judge to evaluate the strength of the proposed grounds of review in the context of a section 477 application.

The court held that the application for judicial review should be dismissed. The court found that the primary judge did not commit a jurisdictional error by not properly considering the proposed grounds of review. Furthermore, the court concluded that the primary judge’s assessment of the arguable merit of the proposed grounds was not unreasonable and aligned with established legal principles. Consequently, the court determined that the primary judge’s evaluation of the strength of the proposed grounds was not a mandatory relevant consideration in this context.

The court dismissed the originating application filed on 26 June 2018 and ordered that the applicant pay the first respondent’s costs, as agreed or assessed. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The originating application filed on 26 June 2018 be dismissed.

2. The applicant pay the first respondent’s costs, as agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, I accept the Minister’s alternative contentions as summarised in [29] and [30] above. Conclusion For these reasons, the originating application will be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	ADN18 v Minister for Home Affairs [2018] FCCA 1421
File number:	NSD 1118 of 2018
Judge:	GRIFFITHS J
Date of judgment:	7 November 2018
Catchwords:	MIGRATION – application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a judgment and orders of the Federal Circuit Court of Australia refusing the applicant’s application for an extension of time under s 477 of the Migration Act 1958 (Cth) – whether the primary judge committed jurisdictional error by not properly considering the proposed grounds of review, in upholding the finding of the Immigration Assessment Authority (IAA) that the applicant did not raise a claim for protection (the claim) before the delegate and the claim was therefore “new information” under ss 473DC and 473DD of the Migration Act 1958 (Cth) – whether the primary judge committed jurisdictional error because his assessment that the proposed grounds did not have arguable merit was unreasonable and inconsistent with established legal principles – whether it is a mandatory relevant consideration for the primary judge to assess the strength of the proposed grounds of review in the context of a s 477 application – Held: application dismissed, with costs
Legislation:	Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 5J, 473DC, 473DD, 477
Cases cited:	AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 Craig v South Australia [1995] HCA 58; 184 CLR 163 CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456
Date of hearing:	5 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Applicant:	Mr O Jones
Solicitor for the Applicant:	Rasan T. Selliah & Associates
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

JUDGE:	GRIFFITHS J
DATE OF ORDER:	7 NOVEMBER 2018