FEDERAL COURT OF AUSTRALIA
BDA16 v Minister for Home Affairs [2019] FCA 874
Review of: BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370 File number(s): NSD 171 of 2019 Judge(s): FARRELL J Date of judgment: 7 June 2019 Catchwords: MIGRATION – judicial review application under s 39B of the Judiciary Act1903 (Cth) to review a decision of the Federal Circuit Court of Australia to refuse an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to make an application under s 476 of the Migration Act seeking review of a decision of the Refugee Review Tribunal – where Tribunal affirmed a decision of the Minister’s delegate to refuse to grant protection visas to the applicants – where applicants accepted legal advice to request Ministerial intervention under s 417 of the Migration Act instead of judicial review of the Tribunal’s decision – where Minister took 31 months to make a decision – where the request for Ministerial intervention was not successful – where application to Federal Circuit Court was 33 months out of time – whether Federal Circuit Court failed to appreciate or deal with the applicants’ claim that the time taken by the Minister to make a decision on their request for Ministerial intervention under s 417 was blameworthy and that it was part of the reason for claiming an acceptable reason for the delay – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 417, 476A, 477
Cases cited: ALL16 v Minister for Immigration and Border Protection [2018] FCA 419
BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370
BDA16 v Minister for Home Affairs [2019] FCA 85
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Daniel v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 21; 205 ALR 198
FEZ17 v Minister for Home Affairs [2019] FCAFC 76
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; 212 ALR 520
Mitco DB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712
Re Commonwealth; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478
SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456
Date of hearing: 3 June 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Solicitor for the Applicants: Mr R Turner of Turner Coulson Immigration Lawyers Solicitor for the First Respondent: Mr J Hutton of Australian Government Solicitor Counsel for the Second and Third Respondents: The Second and Third Respondents submitted to any order of the Court, save as to costs ORDERS
NSD 171 of 2019 BETWEEN: BDA16
First Applicant
BDB16
Second Applicant
BDC16 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
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- Case
- [2019] FCA 874
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether the Federal Circuit Court had erred in failing to appreciate or deal with the applicants’ claim that the time taken by the Minister to make a decision on their request for Ministerial intervention under section 417 was blameworthy and constituted an acceptable reason for the delay in pursuing judicial review. The applicants argued that the court should have considered this factor in determining whether to exercise its discretion to extend time under section 477(2) of the Migration Act. The Minister contended that the court had properly exercised its discretion and that the applicants' grounds did not demonstrate any jurisdictional error.
The court found that the Federal Circuit Court had adequately considered the applicants' reasons for the delay and had not failed to appreciate or deal with the blameworthy nature of the Minister's delay. The court held that the applicants had no right to appeal from a decision of the Federal Circuit Court to refuse to extend time under section 477(2) of the Migration Act, but the Court had jurisdiction to consider an application under section 39B of the Judiciary Act 1903 if there was a "jurisdictional error." However, the applicants’ grounds did not demonstrate any such error. The court also noted that the applicants did not challenge the correctness of the primary judge’s identification of the relevant test for determining an application for an extension of time, which was correctly identified as a matter for the Federal Circuit Court’s discretion.
The further amended application was dismissed, and the first and second applicants were ordered to pay the Minister’s costs as agreed or taxed. The court found that the applicants’ grounds did not challenge the correctness of the primary judge's identification of the relevant test, and therefore, the Federal Circuit Court had correctly exercised its discretion under section 477(2) of the Migration Act.
Orders
Orders of the court
1. The applicants have leave to file a further amended originating application to include a prayer for relief in the nature of a writ of mandamus.
2. The further amended application is dismissed.
3. The first and second applicants must pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Minister’s position is that the application should be dismissed with costs because:(1)While the applicants have no right to appeal from a decision of the Federal Circuit Court to refuse to extend time pursuant to s 477(2) of the Migration Act by reason of s 476A(3)(a), this Court has jurisdiction to consider an application under s 39B of the Judiciary Act which identifies a “jurisdictional error” as that phrase is used in connection with an inferior court: see CXK17 v Minister for Immigration and Border Protection [2018] FCA 1872. The applicants’ grounds do not demonstrate any such error for the reasons set out in the Minister’s submissions.(2)Critically, the applicants’ grounds do not challenge the correctness of the primary judge’s identification of the relevant test for the determination of an application under s 477(2) of the Migration Act.CONSIDERATION Section 477 of the Migration Act relevantly provides as follows:477 Time limits on applications to the Federal Circuit Court(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. As noted by the Minister, the applicants do not challenge the correctness of the primary judge’s identification of the relevant test for determination of an application for an extension of time made under s 477(2) of the Migration Act. That is appropriate, since the Federal Circuit Court correctly identified its task as being to consider exercising its discretion under s 477(2) of the Migration Act to extend the time in which the applicant could apply for judicial review in that court under s 476: see J[8], [10]. The summary of matters to be taken into account at J[10]-[11] is a conventional expression of those factors which may be relevant in the exercise of the discretion. The Federal Circuit Court acknowledged that this list is not exhaustive at J[28]. It is essentially a matter for the Federal Circuit Court judge to determine and assess what the relevant considerations are to be weighed in determining whether he or she is satisfied whether it is necessary, in the interests of the administration of justice, to extend time under s 477(2): see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 at [10] per Bromwich J, Allsop CJ and Flick J concurring.GROUND 1 The Federal Circuit Court plainly did consider, in detail, the applicants’ reasons for the delay of approximately 33 months and the applicants’ claim that those reasons were acceptable at J[12]-[35]. The Federal Circuit Court did not fail to appreciate or deal with the applicants’ claim that the time taken by the Minister to make a decision on their request for Ministerial intervention under s 417 was blameworthy and that it was part of the reason for claiming an acceptable reason for their delay in pursuing judicial review of the Tribunal’s decision in the Federal Circuit Court.