BWI18 v Minister for Home Affairs

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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…

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Details
Case
[2020] FCA 290
Decision Date

CaseChat Overview and Summary

In the case of BWI18 v Minister for Home Affairs, the applicant, BWI18, sought an appeal against the refusal of a protection visa. The application was reviewed by the Tribunal, which refused the visa in February 2018. BWI18 subsequently applied for a second review of this decision by the Tribunal, which was also dismissed in March 2018 on the basis that it had no jurisdiction to review a delegate's decision twice. BWI18 then applied for an extension of time to appeal this second decision. The matter was brought before the Federal Court to determine whether the application for an extension of time should be granted.

The legal issues before the court were whether the Tribunal had the jurisdiction to review the February 2018 decision a second time and whether the application for an extension of time should be granted. The court found that there was no self-evident legal error in the February 2018 decision and that the Tribunal was correct in its conclusion that it had no jurisdiction to review the earlier decision twice. The court also found that the application for an extension of time should be refused as any appeal had no prospects of success.

The court emphasised that BWI18's difficulties with understanding the Australian legal system and the language barrier did not provide a basis for granting the extension of time. The court held that the application for an extension of time should be refused and that the proceeding should be dismissed. The court further held that BWI18 should pay the costs of the First Respondent, either as agreed or assessed.

The court made three orders. Firstly, the application for an extension of time in which to appeal was refused. Secondly, the proceeding was dismissed. Thirdly, BWI18 was to pay the costs of the First Respondent, either as agreed or assessed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Irrespective of such difficulties as were obviously being experienced by an Applicant with little understanding of the Australian legal system and whose first language was not English, that which at a very practical level dooms his case to failure is the fact that:·there is no self-evident legal error in the February 2018 decision of the Tribunal.At a more legally disciplined level, that which dooms his case to failure is the fact that: ·the Tribunal, in March 2018, was correct in concluding that it had no jurisdiction to review the earlier February 2018 decision and “no jurisdiction to review a delegate’s decision twice”.CONCLUSIONS The Application for an extension of time in which to bring the appeal should be refused. Although the extension of time required is comparatively short, any appeal has no prospects of success. There is no reason why costs should not follow the event.THE ORDERS OF THE COURT ARE: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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.