BDO19 v Minister for Home Affairs - [2019] FCCA 2777

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDO19 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2777

Catchwords:
MIGRATION – Application for extension of time to bring application – delay of one year and 5 days in filing application for review – no reasons of substance advanced by applicant explaining delay – substantive claim not reasonably arguable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67

SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Applicant:

BDO19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 274 of 2019

Judgment of:

Judge Egan

Hearing date:

20 September 2019

Date of Last Submission:

20 September 2019

Delivered at:

Brisbane

Delivered on:

20 September 2019

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Tattersall of Sparke Helmore

ORDERS

The application for review filed on 18 March 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for extension of time and of the application for review fixed in the amount of $4,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 274 of 2019

BDO19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia as an Unauthorised Maritime Arrival on 30 January 2013.
On 25 November 2016, the applicant applied for a Safe Haven Enterprise Visa. On 6 June 2017, the Delegate refused to grant to the applicant the SHEV.
On 9 June 2017, the matter was referred to the Immigration Assessment Authority (the Authority) for review. On 30 June 2017, the applicant provided a submission to the Authority.
On 6 February 2018, the Authority affirmed the decision of the Delegate not to grant to the applicant the SHEV.
On 18 March 2019, the applicant filed in the Registry of this Court an application for review of the decision of the Authority. In doing so, the applicant was one year and five days out of time in respect of the filing of such application.
In his application for review, the applicant seeks an extension of time for the filing of the application for review. Under the heading “Grounds of Application for Extension of Time”, the applicant inserted the following ground:
1. N/A Brain/operation PA Hospital or heart (not sure).
The Court then examined the grounds for review as set out in the application filed by the applicant. The grounds of the application for review were as follows:
Grounds of Application
1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.
Firstly, it is clear that this Court has no jurisdiction to review the decision of the delegate, and hence such ground will be disregarded.
As to the other assertion in the grounds of application, the applicant was…

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: [2019] FCCA 2777
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the Federal Court of Australia, BDO19 (the applicant) sought judicial review of a decision made by the Minister for Home Affairs (the respondent) to refuse to grant the applicant a visa. The dispute concerned the lawfulness of the Minister's decision, which was made under the *Migration Act 1958* (Cth).

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's eligibility for the visa, thereby vitiating the decision-making process.

Judge Egan found that the delegate had failed to properly consider the applicant's submissions regarding their genuine temporary entrant status, a crucial factor in the visa assessment. The Court held that the delegate's reasoning demonstrated a misunderstanding of the relevant criteria and a failure to engage with the evidence provided by the applicant. This failure constituted a jurisdictional error, rendering the decision unlawful. The Court therefore quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders