BUB17 v Minister for Immigration - [2020] FCCA 204

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUB17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 204

Catchwords:
MIGRATION – Protection visa – application for extension of time – significant delay – merits of proposed grounds – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 424AA(1)(a), 425, 476, 477, 477(1) and 477(2)(a) & (b)

Cases cited:

AAV15 v Minister for Immigration and Border Protection (2015) 230 FCR 465

Applicant:

BUB17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 151 of 2017

Judgment of:

Judge Heffernan

Hearing date:

4 December 2018

Date of Last Submission:

19 December 2018

Delivered at:

Adelaide

Delivered on:

6 February 2020

REPRESENTATION

Counsel for the Applicant:

Ms E Bergin

Solicitors for the Applicant:

Camatta Lempens Pty Ltd Lawyers

Solicitors for the Respondents:

Ms Stokes for the Australian Government Solicitors

ORDERS

The application for an extension of time in which to file judicial review proceedings is dismissed.
The applicant to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 151 of 2017

BUB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 21 January 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa.
As a preliminary matter, the applicant seeks an order abridging the time in which the application may be made to the date of filing. This application was filed on 26 April 2017, which is approximately two years and two months after the expiration of the time limit provided for in the Act. An order extending time may be made pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’).
The matter proceeded before me on the basis 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: [2020] FCCA 204
Decision Date: 6 February 2020

CaseChat Overview and Summary

The applicant, BUB17, sought an extension of time to appeal a decision of the Minister for Immigration concerning a protection visa. The primary dispute revolved around whether the applicant had established sufficient grounds to warrant an extension of time, given a significant delay in lodging the appeal. The matter was heard before Judge Heffernan in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether to grant an extension of time for the applicant to file their appeal against the Minister's decision. This required the court to consider the merits of the proposed grounds of appeal and weigh them against the extent of the delay and any prejudice to the respondent.

Judge Heffernan dismissed the application for an extension of time. The reasoning focused on the lack of compelling reasons for the substantial delay and the insufficient merits of the proposed grounds of appeal. The court applied the principles governing applications for extensions of time, which typically require a demonstration of good reasons for the delay and a strong prospect of success on appeal. In this instance, neither of these requirements was met to the court's satisfaction.

Orders