Bda16 v Minister for Home Affairs

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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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Details
Case
[2019] FCA 874
Decision Date

CaseChat Overview and Summary

In the case of Bda16 v Minister for Home Affairs, the applicants sought judicial review of a decision by the Federal Circuit Court of Australia to refuse an application for an extension of time to make a judicial review application concerning a decision of the Refugee Review Tribunal. The Tribunal had upheld the Minister’s delegate's decision to refuse the applicants protection visas. The applicants had initially sought Ministerial intervention under section 417 of the Migration Act 1958, but this was unsuccessful. They then applied to the Federal Circuit Court for an extension of time, 33 months after the deadline, citing the delay in the Minister's decision on their request for Ministerial intervention as part of their justification for the late application. The Federal Circuit Court dismissed the application for an extension of time.

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

Having had the benefit of the written submissions of both the Minister and the applicants, the Court is satisfied that Mr Turner’s concession was properly made in relation to Grounds 2-5. CONCLUSION The further amended application should be dismissed with the first and second applicant to pay the Minister’s costs.

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.