FEDERAL CIRCUIT COURT OF AUSTRALIA
| APD17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2050 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicants Protection (Class XA) (Subclass 866) visas – Applicants needed an extension of time under s.477(2) of nearly three years to make their application to this Court – primary applicant for Protection visa now deceased – Applicants claim that the Tribunal failed to take into account relevant considerations, was unreasonable and denied their legitimate expectations – no reasonable explanation for delay of almost three years in commencing proceeding – no reasonable prospects of success for proposed substantive grounds – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424A, 477 Migration Regulations 1994 (Cth) |
| First Applicant: | APD17 |
| Second Applicant: | APE17 |
| Third Applicant: | APF17 |
| Fourth Applicant: | APG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 425 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 20 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr R. Chaudhry |
| Solicitors for the Applicants: | Chaudhry Legal |
| Counsel for the First Respondent: | Ms A. Davyskib |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Applicants’ application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 425 of 2017
| APD17 |
First Applicant
| APE17 |
Second Applicant
| APF17 |
Third Applicant
| APG17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a female citizen of Fiji aged 43 years;
b)the Second Applicant is a female citizen of Fiji aged 20 years and is the daughter of the First Applicant;
c)the Third Applicant is a female citizen of Fiji aged 16 years and is the daughter of the First Applicant; and
d)the Fourth Applicant is a male citizen of Fiji born in Australia, aged 9 years and is the son of the First Applicant.
(collectively the Applicants)
By Amended Application filed in this Court on 8 May 2017 they seek:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (
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- Case
- [2020] FCCA 2050
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the applicants an extension of time to file their application for judicial review. This involved assessing whether there was a reasonable explanation for the significant delay in commencing proceedings and whether the proposed substantive grounds of review had reasonable prospects of success. The substantive grounds of review alleged by the applicants included the Tribunal failing to take into account relevant considerations regarding familial ties and political associations in Fiji, misapplying facts and failing to apply a clear line of reasoning, making unreasonable findings, and denying legitimate expectations.
Dowdy J refused the application for an extension of time. His Honour found that there was no reasonable explanation for the delay of almost three years in commencing the proceeding. Furthermore, His Honour concluded that the proposed substantive grounds of review did not have reasonable prospects of success. Consequently, the court ordered that the application for an extension of time be refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At the hearing Mr Chaudhry appeared for the Applicants and Ms Davyskib appeared for the Minister. Mr Chaudhry abandoned what had been referred to as Grounds 4 and 5 and refinement and renumbering of the balance of the proposed substantive Grounds resulted in the following being pressed:Failing to take into account relevant considerationsGround 1. The 2nd respondent erred in paragraph 30 of its decision in failing to take into account the strong familial ties of the applicant to the Qaranivalu [i.e. Ratu Inoke] and how such relationship would affect her safety if she were to return to Fiji.Ground 2. The 2nd respondent erred at paragraph 31 of its decision, when it failed to properly take into account all relevant considerations when it held that the 1st named applicant was not politically associated with Ratu Inoke Takiveikata (Ratu Inoke) despite finding at paragraph 30 of its decision that the applicant’s wife and Ratu Inoke were cousins.ParticularsThe 2nd respondent in arriving at its finding failed to take into account the following relevant considerations:a) At the relevant time (5 December 2006 – March 2014), the SDL Party was the only indigenous Fijian party;b) Ratu Inoke was a senior and influential member of the SDL Party till his jailing in 2010; and c) Indigenous Fijian society structures are quite different to Australian Anglo Saxon structures in that there is much greater recognition of extended family relationships.Ground 3. The 2nd respondent erred, at paragraph 32, 33 and 57 of its decision when it failed to properly take into account all relevant considerations when it held that the 1st named applicant was not a member of the SDL Party in 2001.ParticularsThe 2nd respondent in arriving at its finding failed to take into account the following relevant considerations:a) Post 2000 coup the SDL Party was the only mainstream political party for Fijians;b) Fijian political parties do not have the same structures as Australian political parties and membership is largely by association rather than paid political party membership;c) Many Fijians and other races who are civil servants, for example, cannot be seen to be members of political parties and can support their political parties by association;d) The letter by Laisenia Qarase confirmed the 1st named applicant’s membership of the SDL; ande) Laisenia Qarase was a senior member of the SDL and former Prime Minister, who would not issue a letter to the 1st named applicant which was not factually correct.Ground 4. The 2nd respondent failed at paragraphs 31 – 37 (inclusive) and paragraph 47 to correctly apply a clear line of reasoning and / or misapplied the facts to arrive at its conclusions.Particularsa) Gave undue weight to evidence which was not relevant such as SDL membership;b) Failing to take into account that Ratu Inoke was seen as a political threat to Bainimarama;c) Failing to take into account that Ratu Inoke’s original case was presided over by Justice Anthony Gates who was subsequently found to have been biased and whose judgment and sentence was set aside by the Court of Appeal and a retrial ordered; andd) Finding that the applicant and her deceased husband joined FDFM and accepted official appointment at FDFM Robinvale to strengthen their claims for a Protection visa. Ground 5. The 2nd respondent, at paragraph 57 of its decision failed to proceed to the natural conclusion of harm to the applicant/s after finding that country reports did report ordinary citizens being subjected to harm.UnreasonablenessGround 6. The 2nd respondent, at paragraphs 44 – 48 (inclusive) of its decision made findings that were unreasonable and not cogent.ParticularsThe 2nd respondent acted unreasonably in: a) Dismissing the 1st applicant’s claim on his affiliation and activism with Australia democracy movements; andb) Did not apply a cogent line of reasoning when assessing the applicant’s claim as it related to his affiliation, association and activism with the Australia based Fiji Democracy Movement.Denial of legitimate expectation/sGround 7. The 2nd respondent failed to act fairly and in accordance with the requirements of Migration Act 1958 and in doing so defeated the legitimate expectations of the applicant, particulars of which are stated in the particulars accompanying paragraphs 1 – 4 (inclusive) of these submissions.