Avd16 v Minister for Immigration - [2018] FCCA 1192

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVD16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1192

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – applicant needs an extension of time of nearly 4 years (1455 days) 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 any proposed substantive ground – application for extension refused and dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 476, 477, 424A, 424AA

Cases cited:

Bechara v Bates [2018] FCA 460
MZZYC v Minister for Immigration [2015] FCA 1426
SZNMO v Minister for Immigration [2009] FCA 797
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
WZAVW v Minister for Immigration [2016] FCA 760

Applicant:

AVD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 950 of 2016

Judgment of:

Judge Dowdy

Hearing dates:

31 May 2017 & 30 June 2017

Delivered at:

Sydney

Delivered on:

18 May 2018

REPRESENTATION

The Applicant appeared by his litigation guardian in person.

Counsel for the Respondents:

Ms C. Hillary

Solicitors for the Respondents:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 20 April 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 950 of 2016

AVD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

The Applicant in this proceeding is a male citizen of China aged 8 years, having been born in Australia on 17 February 2010.
By Application filed in this Court on 20 April 2016 the Applicant seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of nearly four years (i.e. 47 months and 25 days) outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1); and
b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) (Tribunal) dated 22 March 2012 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 10 August 2011 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant’s mother and father are also citizens of China, with his mother being Ms He Shun Li (Ms Li), who is aged 36 years and the father, Mr Cheng Yao Dai, who is aged 47 years. They married in China on 23 November 2005. Ms Li was appointed litigation guardian of the…

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 1192
Decision Date: 18 May 2018

CaseChat Overview and Summary

The applicant, Avd16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate of the Minister for Immigration's refusal to grant a protection visa. The application was brought before Dowdy J of the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant should be granted an extension of time, pursuant to section 477(2) of the *Migration Act 1958* (Cth), to file his application for judicial review. This extension was sought for a period of approximately four years, or 1455 days, beyond the prescribed time limit.

Dowdy J reasoned that an extension of time under section 477(2) requires both a reasonable explanation for the delay and reasonable prospects of success on the substantive grounds of review. In this instance, the Court found that the applicant had failed to provide a reasonable explanation for the significant delay in lodging his application. Furthermore, the Court concluded that the applicant did not demonstrate reasonable prospects of success for any of the proposed substantive grounds of review. Consequently, the application for an extension of time was refused and dismissed.

Orders