BDB15 v Minister for Immigration - [2017] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDB15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2601

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – adequate explanation for eight month delay – no reasonable prospects of success in substantive application.

Legislation:
Migration Act 1958, ss.477, 477(2)
Mental Health Act 2014 (Vic)

Cases cited:

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Tisdall v Webber and Others (2011) 122 ALD 49; [2011] FCAFC 76

Applicant:

BDB15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1415 of 2015

Judgment of:

Judge Riley

Hearing date:

27 April 2017

Date of last submission:

19 September 2017

Delivered at:

Melbourne

Delivered on:

27 October 2017

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the first respondent:

Julia Lucas

Solicitors for the first respondent:

Clayton Utz Lawyers

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz Lawyers

ORDERS

The application for an extension of time filed on 23 June 2015, amended on 21 March 2017 and further amended on 4 April 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1415 of 2015

BDB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The decision of this court was reserved pending the decision of the High Court on appeal from SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. The High Court upheld the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

Extension of time application

The Tribunal’s decision was made on 8 September 2014. Under s.477 of the Migration Act 1958 (“the Act”), any application to this court was to be filed within 35 days of the date of the Tribunal’s decision, subject to any extension of time granted by the court. The application to this court was not filed until 23 June 2015. Consequently, the application was about eight months late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the parties of the grant or refusal of…

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: [2017] FCCA 2601
Decision Date: 27 October 2017

CaseChat Overview and Summary

The applicant, BDB15, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court considered whether the delegate had adequately assessed the applicant's claims of persecution and the risk of harm upon return to their country of origin.

Judge Riley found that the delegate had failed to properly consider the applicant's evidence regarding past persecution and the specific circumstances of their fear of future persecution. The Court held that the delegate's assessment was based on a misunderstanding of the evidence and that this constituted a failure to consider relevant considerations. Consequently, the decision was affected by jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders