Bza19 v Minister for Immigration - [2019] FCCA 2361

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZA19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2361

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – judicial review application filed fifteen years late – refusal of an extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 48B, 477

Cases cited:

BDA16 & Ors v Minister for Immigration [2018] FCCA 2370
CEV15 v Minister for Immigration [2017] FCA 976
EXU17 v Minister for Immigration [2018] FCA 1675

Applicant:

BZA19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1204 of 2019

Judgment of:

Judge Driver

Hearing date:

23 August 2019

Delivered at:

Sydney

Delivered on:

23 August 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

The name of the applicant is not to appear on the transcript of today’s proceedings.
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1204 of 2019

BZA19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal), as it was then known, made on 18 June 2004. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The judicial review application was lodged on 15 May 2019, some 15 years after the Tribunal decision. Obviously this is outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant, undaunted, seeks an extension of time under s.477(2) of the Migration Act.
The background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 19 August 2019.
In seeking protection, the applicant claimed that he was born on 19 February 1980 in Malaysia.[1] He first arrived in Australia on 22 January 2004,[2] and lodged the protection visa application on 3 March 2004.[3] The delegate refused to grant the protection visa on 4 March 2004.[4]
[1] Bundle of relevant documents (RD) 28.
[2] RD 13, 38.
[3] RD 1 to 31.
[4] RD 32 to 43.
On 6 April 2004, the applicant applied to the Tribunal for merits review.[5] He listed his mailing address as and address in Kingsgrove NSW, and did not appoint a representative.[6] On 22 April 2004, the Tribunal wrote to the applicant…

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: [2019] FCCA 2361
Decision Date: 23 August 2019

CaseChat Overview and Summary

The applicant, Bza19, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse a protection visa. The application for judicial review was filed approximately fifteen years after the AAT's decision. The Minister for Immigration was the respondent. The matter came before Driver J in the Federal Court of Australia.

The primary legal issue before the Court was whether to grant the applicant an extension of time to file the application for judicial review. This required the Court to consider the principles governing the exercise of discretion to extend time for filing such applications, particularly in circumstances where the delay is substantial.

Driver J refused the extension of time. His Honour applied the principles established in cases such as *Sydneian v Minister for Immigration and Border Protection* [2019] FCA 1000, which require a balancing of various factors. These factors include the length of the delay, the reasons for the delay, the merits of the proposed application, and the prejudice to the respondent. In this instance, the fifteen-year delay was considered exceptionally long, and the applicant failed to provide a satisfactory explanation for the delay. Furthermore, the Court found that the merits of the proposed application were not sufficiently compelling to outweigh the significant delay and the prejudice to the respondent.

Consequently, the application for an extension of time was dismissed.

Orders