Aqa18 v Minister for Home Affairs - [2018] FCCA 3059

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQA18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3059

Catchwords:

MIGRATION– Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Protection visa because the application to it was made six months late – applicant needed a 53 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for proposed substantive ground – application for extension refused.

Legislation:

Migration Act 1958 (Cth), ss.66, 347, 412, 476, 477, 494C

Evidence Act 1995 (Cth), s.58
Migration Regulations 1994 (Cth)

Cases cited:

Australian Competition and ConsumerCommission v AIR New Zealand (2012) 207 FCR 448
AWA15 v Minister for Immigration [2018] FCA 604

Bechara v Bates [2018] FCA 460
Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335
DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521

Applicant:

AQA18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 349 of 2018

Judgment of:

Judge Dowdy

Hearing date:

19 October 2018

Delivered at:

Sydney

Delivered on:

19 October 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms A. Zinn

Solicitors for the Respondents:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application for an extension of time filed in this Court on 12 February 2018 is dismissed.
The Applicant is ordered to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 349 of 2018

AQA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a male citizen of Malaysia of Chinese ethnicity aged 29 years, having been born on 12 July 1989.
By Application filed in this Court on 12 February 2018, he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 November 2017 which found that it had no jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant also applies for an extension of time of some 53 days under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) for him to make his substantive application for judicial review in this Court under s.476(1).

Background

The Applicant arrived in Australia on 19 September 2015 on an Electronic Travel Authority (Class UD) (Subclass 601) visa and applied for the Protection visa on 10 January 2017.…

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] FCCA 3059
Decision Date: 19 October 2018

CaseChat Overview and Summary

The applicant, Aqa18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The AAT had determined it lacked jurisdiction to review a decision made by a delegate of the Minister for Home Affairs, which refused the applicant a protection visa. This jurisdictional issue arose because the applicant's appeal to the AAT was lodged six months after the prescribed time limit.

The central legal issue before the court was whether the applicant was entitled to an extension of time to bring his application for judicial review to the Federal Court. Specifically, the court had to consider the applicant's eligibility for a 53-day extension of time under section 477(2) of the *Migration Act 1958* (Cth), and whether the grounds for the proposed substantive review had reasonable prospects of success.

Dowdy J found that the applicant had failed to provide a reasonable explanation for the significant delay in lodging his application with the court. Furthermore, the court concluded that the proposed grounds for the substantive judicial review lacked reasonable prospects of success. Consequently, the application for an extension of time was refused.

Orders