BWI18 v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

BWI18 v Minister for Home Affairs [2020] FCA 290

Appeal from:

Application for Extension of Time:  BWI18 v Minister for Home Affairs & Anor [2019] FCCA 1769

File number:

NSD 1196 of 2019

Judge:

FLICK J

Date of judgment:

11 March 2020

Catchwords:

MIGRATION – protection visa refused – reviewed by Tribunal – second application for review – no jurisdiction for Tribunal to undertake second review

PRACTICE AND PROCEDURE – application for extension of time – extension requested short – but no prospects of success – extension refused   

Legislation:

Migration Act 1958 (Cth) ss 338, 347, 348, 349, 411

Federal Court Rules 2011 (Cth) rr 36.03, 36.05

Cases cited:

BUD17 v Minister for Home Affairs [2018] FCAFC 140, 264 FCR 134

NAPF v Minister for Immigration and Border Protection [2017] FCA 117

SZASP v Minister for Immigration and Citizenship [2007] FCA 771

SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175, (2008) 171 FCR 299

Date of hearing:

5 February 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1196 of 2019

BETWEEN:

BWI18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	11 MARCH 2020

THE COURT ORDERS THAT:

1.The Application for an extension of time in which to appeal is refused.

2.The proceeding is dismissed.

3.The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. The Applicant in the present proceeding, identified by the pseudonym BWI18, is a citizen of Malaysia who arrived in Australia in October 2016 on a visitor visa.

2. He applied for a protection visa in January 2017 but, on 31 March 2017, a delegate of the Minister refused that application.  The Applicant then applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of that decision.  The Tribunal affirmed the delegate’s decision on 2 February 2018 and notified the Applicant of that decision by way of a letter dated 6 February 2018.

3. In March 2018 the Applicant lodged a further application for review with the Tribunal.  The decision sought to be reviewed was identified as a “[v]isa refusal” and the date of the decision was identified as “6/02/2018”.  On 13 March 2018 the Tribunal published its Statement of Decision and Reasons, finding that it did not have jurisdiction to review the delegate’s decision a second time.  Those reasons relevantly concluded:

   3.The Tribunal notes that the applicant previously sought review of…