ADY17 v Minister for Home Affairs

Link copied
Case Copied 16 min read

FEDERAL COURT OF AUSTRALIA

ADY17 v Minister for Home Affairs [2019] FCA 717

Appeal from: Application for an extension of time: ADY17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2977
File number: WAD 552 of 2018
Judge: STEWARD J
Date of judgment: 20 May 2019
Legislation: Federal Court Rules 2011 (Cth) r 36.05
Cases cited:

Manna v Minister for Immigration and Citizenship [2013] FCA 400

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912

Singh v Minister for Immigration and Border Protection [2017] FCA 150

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Date of hearing: 20 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 16
Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Ms M Jackson
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

WAD 552 of 2018
BETWEEN:

ADY17

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

20 MAY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed with costs as assessed or agreed.

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


REASONS FOR JUDGMENT

STEWARD J:

  1. The applicant is a citizen of the Republic of India from the state of Punjab.  He has been seeking a visa to stay in Australia for the past seven years.  He arrived in this country on 29 September 2009 on a student visa.  He sought an additional student visa in 2012.  This was refused by a delegate of the first respondent (the “Minister”) who decided that the applicant had provided false and misleading information on his visa application.  That decision was subsequently affirmed by the Migration Review Tribunal.  The applicant then unsuccessfully applied both for a visa under the Regional Sponsored Migration Scheme and then for Ministerial intervention in relation to the refusal of the student visa.  On 24 April 2015, he applied for a protection visa.  This was refused on 14 December 2015.  The applicant sought a review of that decision in the Administrative Appeals Tribunal (the “Tribunal”); the delegate’s decision was affirmed on 16 December 2016.  The applicant then sought judicial review in the Federal Circuit Court of Australia.  His application was dismissed on 26 October 2018.  The applicant sought to appeal that decision to this Court, but he was late by about two weeks.  He now seeks an extension of time.  The Minister opposes that application. 

    Background

  2. In his written application for the protection visa, the applicant made the following claims (as summarised by the primary judge): 

    i)he had a fight with…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read ADY17 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCA 717
Decision Date

CaseChat Overview and Summary

The case of ADY17 v Minister for Home Affairs involved an Indian citizen who had been in Australia since 2009 on a student visa. Over the years, he had applied for various visas, all of which were refused by the Minister for Home Affairs. His latest application for a protection visa was also denied and subsequently dismissed in the Federal Circuit Court of Australia. The applicant sought an extension of time to appeal that decision, which the Minister opposed. The central legal issue was whether the court should grant the applicant an extension of time to appeal the dismissal of his application for a protection visa. The court considered whether there were any exceptional circumstances justifying the delay in lodging the application for an extension of time.

The court found that the applicant had not provided a satisfactory explanation for the delay in seeking an extension of time. The applicant's arguments focused on his claims of persecution in India and the difficulties he faced in obtaining legal assistance there, but these did not justify the delay in lodging the application. The court noted that the applicant had ample time to seek legal advice and prepare his application but chose not to do so. The court held that the applicant had not demonstrated any exceptional circumstances warranting an extension of time. Consequently, the application for an extension of time was dismissed with costs as assessed or agreed.

In light of the above, the court dismissed the applicant's application for an extension of time. The court ordered that the application be dismissed with costs as assessed or agreed, in accordance with Rule 39.32 of the Federal Court Rules 2001.

Orders

Orders of the court

1. The application for an extension of time be dismissed with costs as assessed or agreed.

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

Background

Background to the litigation

The applicant is a citizen of the Republic of India from the state of Punjab. He has been seeking a visa to stay in Australia for the past seven years. He arrived in this country on 29 September 2009 on a student visa. He sought an additional student visa in 2012. This was refused by a delegate of the first respondent (the “Minister”) who decided that the applicant had provided false and misleading information on his visa application. That decision was subsequently affirmed by the Migration Review Tribunal. The applicant then unsuccessfully applied both for a visa under the Regional Sponsored Migration Scheme and then for Ministerial intervention in relation to the refusal of the student visa. On 24 April 2015, he applied for a protection visa. This was refused on 14 December 2015. The applicant sought a review of that decision in the Administrative Appeals Tribunal (the “Tribunal”); the delegate’s decision was affirmed on 16 December 2016. The applicant then sought judicial review in the Federal Circuit Court of Australia. His application was dismissed on 26 October 2018. The applicant sought to appeal that decision to this Court, but he was late by about two weeks. He now seeks an extension of time. The Minister opposes that application. Background In his written application for the protection visa, the applicant made the following claims (as summarised by the primary judge): i)he had a fight with a group of shopkeepers as they had not paid their rent on time and for a few years they had not paid any rent to the applicant, and he will get attacked if he goes back to his area in India and he feels unsafe, unsecure and very scared because of this;ii)the authorities are not much help in disputes, they do not care for it, they are corrupt and it costs money if you want action taken, and he does not have much money to spend on that;iii)he has never lived elsewhere in India but he is scared “those people” will find him, and he was so scared that he chose to leave India; andiv)as his student visa has ended he has nowhere to go but back to India, he does not know anyone in another part of India, and he feels safe and secure in Australia so needs some protection. (Court book references omitted.) Before the Tribunal, generally speaking, these claims were rejected as mere assertions. The learned primary judge carefully summarised the Tribunal’s findings in the following terms at [4]:In the Tribunal Decision the Tribunal:a)identified s.36(2)(a) and (aa) of the Migration Act and the necessary corresponding definitional provisions of the Migration Act, and explained the criteria that the applicant was required to satisfy in order to be granted a Protection Visa, and referred to the policy guidelines to be taken into account under Ministerial Direction No.56 by reason of s.499 of the Migration Act: CB 208 at [3]-[7];b)outlined the applicant’s history of visa applications, including the findings of the respective delegate and Migration Review Tribunal (as it then was) regarding the status of those visa applications, and noted in the period since his first visa in 2009 that the applicant had returned to India once in 2011 for a period of six weeks and also travelled to Bali for one day in 2012: CB 209 at [9]-[16];c)referred to the applicant being granted a series of Bridging E visas since May 2014, which were granted on the basis that he was making plans to depart Australia, but that he instead applied for the Protection Visa on 14 December 2015: CB 208 at [1]-[2] and 209 at [15];d)noted the scant and vague detail of the applicant’s claims for a Protection Visa, transcribing them verbatim at CB 209-210 at [18] (footnote omitted) as follows:18. In this applicant [sic], he set out his claims as follows:Why did you leave [India]?I left for my better future career. I came to Australia on student visa.What do you fear may happen to you if you return to [India]?I had dispute with the shop tenants which are on rent. They were dispute for non paying rent on time and from few years they haven’t paid any money to us. When I ask them to pay the rent then they started dispute over non payment for the rent.Did you experience harm in [India]?Yes. I had fight with a group of shopkeepers. They were dispute for non paying rent on time and form [sic] few years they haven’t paid any money to us.Did you seek help with [India] after the harm?No. I was so scared and threatened by that group and then I decided to leave the country. Now if I go back they can harm me again because we have home still in that area.Did you move, or try to move, to another part of [India] to seek safety?I moved to Australia since then. But now my visa is finishing and have to leave country. I have nowhere to go except India. I also don’t know anyone in my [sic] other part of country where I can live and stay. I feel secure in Australia and seeking help from Australia.Do you think you will be harmed or mistreated if you return to [India]?I can get attacked again if I go back to India in my area. I am scared and not feeling safe and secure to go back to India.Do you think the authorities of that country can and will protect you if you go back?Authorities are not much helpful in this type of disputes. They don’t care for this. The authorities are corrupt over there and took money to take any action and we don’t have that much money to spend on this.Do you think you would be able to relocate within [India]?I never lived and stayed any other part of in India. I am scared too if those people found me in India.Application for an Extension of Time

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.