BYN18 v Minister for Home Affairs - [2018] FCCA 3838

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYN18 v MINISTER FOR HOME AFFAIRS

[2018] FCCA 3838

Catchwords:
MIGRATION – Application to extend time under s 477 of the Migration Act 1958 (Cth) – application filed out of time – whether the notification is a decision enlivening the Court’s jurisdiction – no satisfactory explanation for the delay – no sufficiently arguable case of jurisdictional error made out by the proposed ground in the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477, 497, 501, 501CA

Cases cited:

Aciek v Minister for Immigration [2017] FCCA 3237
EFX17 v Minister for Immigration [2018] FCCA 2957
Megase v Minister for Immigration [2018] FCCA 3682

Applicant:

BYN18

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

SYG 1087 of 2018

Judgment of:

Judge Street

Hearing date:

20 December 2018

Date of Last Submission:

20 December 2018

Delivered at:

Sydney

Delivered on:

20 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr P Berg

Solicitors for the Applicant:

Harper James Law

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 20 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1087 of 2018

BYN18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

These are proceedings purportedly commenced within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) subject to an extension of time under s 477 of the Act in respect of an alleged migration decision made on 4 April 2017, being a notification sent to the applicant under s 501CA(3) of the Act, in respect of the notice of visa cancellation under s 501(3A) of the Act. It is the notification itself that is the subject of the alleged migration decision said to enliven this Court’s jurisdiction.
These proceedings were commenced on 17 April 2018, 333 days outside the time permitted under s 477 of the Act. The application identifies a request for an extension of time and articulates a proposed ground in compliance with the requirements of s 477(2) of the Act.
The principles to be applied in determining whether to extend time involve consideration of whether there is a satisfactory explanation for the delay, any particular prejudice to the respondent and none is suggested in the present case, and the merits of the application. In this regard, the Court is engaged in a preliminary assessment at an impressionistic level in respect to the merits. The Court also takes into account that there is no right of appeal under s 477 of the Act to the Federal Court of Australia.

Question of Jurisdiction

The first issue that the Court must address is that of jurisdiction. Where a jurisdictional issue is raised it is the obligation of the Court to first determine that question. Mr Berg of counsel, on behalf of the applicant, submitted that the notification, as a matter…

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: [2018] FCCA 3838
Decision Date: 20 December 2018

CaseChat Overview and Summary

The applicant, BYN18, sought an extension of time under section 477 of the *Migration Act 1958* (Cth) to file an application for review. The Minister for Home Affairs was the respondent. The core of the dispute concerned whether the applicant's application was filed within the prescribed time limits and, if not, whether an extension of time should be granted. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the notification received by the applicant constituted a decision that enlivened the Court's jurisdiction, and if not, whether the applicant had provided a satisfactory explanation for the delay in filing the application for review. The Court was also required to determine if the applicant had demonstrated a sufficiently arguable case of jurisdictional error to warrant the grant of an extension of time.

Judge Street found that the notification received by the applicant did not constitute a decision that enlivened the Court's jurisdiction. Furthermore, the Court determined that the applicant had failed to provide a satisfactory explanation for the significant delay in filing the application. Consequently, the Court concluded that no sufficiently arguable case of jurisdictional error had been made out by the proposed grounds in the application.

The application for an extension of time was dismissed.

Orders