BDQ16 v Minister for Immigration - [2016] FCCA 3464

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDQ16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3464

Catchwords:

MIGRATION – Substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider the issue of the intention of the authorities – whether Tribunal failed to consider documents provided to it – alleged breach of s.424A of the Act.

PRACTICE & PROCEDURE – Application for an extension of time within which to make a substantive application – whether it is in the interests of the administration of justice to extend time – consideration of factors going to an extension of time – application refused.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 424AA, 424A, 425, 476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Applicant:

BDQ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1196 of 2016

Judgment of:

Judge Nicholls

Hearing date:

3 November 2016

Date of Last Submission:

3 November 2016

Delivered at:

Sydney

Delivered on:

3 November 2016

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms S Sangha of Mills Oakley

ORDERS

The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1196 of 2016

BDQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), made on 11 May 2016, seeking an order that the Court extend the time within which to bring a substantive application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 24 March 2016, which affirmed the decision of the Minister’s delegate not to…

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.

Keep reading for free

Create a free CaseChat account to read BDQ16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 3464
Decision Date: 3 November 2016

CaseChat Overview and Summary

The applicant, BDQ16, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The core of the dispute concerned the applicant's migration status and the AAT's handling of their substantive application for review. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the AAT had failed to consider the intention of the relevant authorities in its decision-making process and whether it had failed to consider documents that had been provided to it. These alleged failures were framed as potential breaches of section 424A of the *Migration Act 1958* (Cth). Additionally, the Court was required to determine an application for an extension of time within which to make the substantive application for review, and whether granting such an extension would be in the interests of the administration of justice.

Judge Nicholls considered various factors relevant to an application for an extension of time. The Court ultimately refused the application for an extension of time. While the judgment does not explicitly detail the reasoning for the refusal of the extension of time or the outcome of the substantive review application, the focus of the Court's determination was on the procedural fairness and proper consideration of evidence by the AAT.

Orders