AXT19 v Minister for Home Affairs

[2019] FCA 1423

FEDERAL COURT OF AUSTRALIA

AXT19 v Minister for Home Affairs [2019] FCA 1423

Review of:

Application for an extension of time and judicial review:  BNNN v Minister for Home Affairs 2018/6098

File number:

QUD 164 of 2019

Judge:

LOGAN J

Date of judgment:

23 August 2019

Catchwords:

MIGRATION – application for an extension of time and for judicial review of a decision of the Administrative Appeals Tribunal not to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – where the applicant was convicted of indecent assault against a 14 year old girl – where the applicant possessed a Refugee visa – where the applicant raised some non-refoulement claims before the Tribunal – where as to those non-refoulement claims the Tribunal considered that the applicant could make a future application for a Protection visa where those claims could be assessed – whether the Tribunal erred in not itself further considering the non-refoulement claims – where the applicant relied on Omar v Minister for Home Affairs [2019] FCA 279 – whether Omar was wrongly decided – whether Tribunal was bound further to consider non-refoulement claims.  Held: extension of time granted but application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 501, 501CA

Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Le v Minister for Immigration and Border Protection (2015) 237 FCR 516

Minister for Immigration and Border Protection v Le (2016) 244 FCR 56

Omar v Minister for Home Affairs [2019] FCA 279

Sowa v Minister for Home Affairs [2019] FCAFC 111

Date of hearing:

23 August 2019

Registry:

Queensland

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

31

Counsel for the Applicant:

Mr H Clift

Solicitor for the Applicant:

Fisher Dore Lawyers

Counsel for the First Respondent:

Ms A Wheatley

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

QUD 164 of 2019

BETWEEN:

AXT19

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	23 AUGUST 2019

THE COURT ORDERS THAT:

1.The applicant be granted the requisite extension of time for the filing of the originating application.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs, of and incidental to the application, including the application for extension of time, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT
(Revised from Transcript)

LOGAN J:

1. The applicant is a citizen of Myanmar, once known as Burma.  He came to Australia in December 2011 lawfully, pursuant to a Refugee Subclass 200 visa granted to him pursuant to the Migration Act 1958 (Cth) (Act). In April 2015 the applicant was convicted in South Australia of an offence of indecent assault committed against…