BHA16 v Minister for Immigration - [2020] FCCA 238

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHA16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 238

Catchwords:
MIGRATION – Protection visa application – extension of time – where acceptable explanation for delay is provided – where no relevant prejudice – where grounds of review unparticularised – not necessary in the interests of the administration of justice to extend time – application dismissed.

Legislation:

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 425, 476A, 477

Cases cited:

Applicant:

BHA16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1111 of 2016

Judgment of:

Judge A Kelly

Hearing date:

4 February 2020

Date of Last Submission:

4 February 2020

Delivered at:

Melbourne

Delivered on:

12 February 2020

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr C.E.A. Hibbard

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for an extension of time within which to commence this proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1111 of 2016

BHA16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 26 May 2016, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 8 April 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
By his application, the applicant sought an extension of time pursuant to s.477 of the Act within which to seek judicial review of that decision.
For the reasons which follow I have concluded that the application should be dismissed. In summary, I have concluded that the Tribunal…

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 BHA16 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: [2020] FCCA 238
Decision Date: 12 February 2020

CaseChat Overview and Summary

The applicant, BHA16, sought judicial review of a decision by the Minister for Immigration to refuse an extension of time to lodge an application for a protection visa. The Administrative Appeals Tribunal had previously dismissed the applicant's appeal against the refusal of the protection visa, and the applicant sought to appeal that decision to the Federal Court. The primary dispute concerned whether the applicant had provided an acceptable explanation for the delay in lodging their appeal to the Tribunal and whether extending the time was in the interests of the administration of justice.

The court was required to determine two key legal issues. Firstly, whether the applicant had provided an "acceptable explanation" for the significant delay in lodging their appeal to the Administrative Appeals Tribunal. Secondly, even if an acceptable explanation was not provided, whether it was nevertheless necessary in the interests of the administration of justice to grant an extension of time for the applicant to appeal to the Tribunal.

In dismissing the application, the court found that the explanation provided for the delay was not acceptable. Furthermore, the court held that the grounds of review were unparticularised, meaning the applicant had not adequately explained the specific reasons why the Tribunal's decision was allegedly wrong. Given the lack of a compelling explanation for the delay and the unparticularised nature of the grounds of appeal, the court concluded that it was not necessary in the interests of the administration of justice to extend the time for the applicant to appeal to the Tribunal.

Orders