FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBA16 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2761 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) Visa – Immigration Assessment Authority – application for an extension of time – application filed some 23 months out of time – whether an extension of time should be allowed in the interests of the administration of justice – whether the grounds of the application contain merit – where the Minister claims the Applicant is precluded from seeking relief by reason of Anshun estoppel – extension of time application refused – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Applicant: | DBA16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2726 of 2018 |
| Judgment of: | Her Honour Judge C E Kirton QC |
| Hearing date: | 13 September 2018 |
| Date of Last Submission: | 13 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Counsel for the Applicant |
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- Case
- [2018] FCCA 2761
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether to grant an extension of time under s 477(2) of the Migration Act 1958 (Cth) and, in doing so, whether it was in the interests of the administration of justice to permit the applicant to again agitate his claim for a protection visa. The applicant had previously filed a proceeding in the Federal Circuit Court for judicial review of the same IAA decision, which was dismissed, and a subsequent appeal to the Federal Court was also dismissed. The Minister contended that the applicant was precluded from seeking relief by reason of *Anshun* estoppel.
Her Honour determined that it was not in the interests of the administration of justice to grant the extension of time. The Court noted the applicant's prior unsuccessful attempts to judicially review the IAA decision, including appeals that had been dismissed by both the Federal Circuit Court and the Federal Court. Given the significant delay and the previous litigation concerning the same matter, the Court refused the extension of time application.
Consequently, the Court ordered that the extension of time application be refused and that the applicant pay the Minister's costs. The substantive application for judicial review was therefore dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Applicant has previously filed a proceeding in this Court under s.476 of the Migration Act 1958 (Cth) (Migration Act) against the Minister and the IAA for judicial review of the IAA Decision. That proceeding was dismissed, as was the Applicant’s subsequent appeal to the Federal Court. The Applicant has now filed a second application in this Court under s.476 of the Migration Act against the Minister and the IAA for judicial review of the IAA Decision. The Applicant seeks to again agitate his claim for a protection visa in this Court (Substantive Application). The Applicant also makes a further application pursuant to s.477(2) of the Migration Act for an extension of time within which to make the Substantive Application (Extension of Time Application). The Substantive Application and the Extension of Time Application were filed on 11 September 2018. The IAA Decision was made on 15 September 2016. Any application in relation to the IAA Decision should have been made within the 35 day period as specified in s.477(1) of the Migration Act. The Applicant is therefore some 23 months out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied. In relation to the Extension of Time Application, I have determined that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to grant the application. I refuse the Extension of Time Application and order the Applicant to pay the Minister’s Costs. On 7 April 2013 the boat upon which the Applicant was travelling to Australia was intercepted by an Australian Naval ship, four nautical miles north of the Ashmore Islands. Due to problems with the engine of the boat that the Applicant was travelling on, the naval ship took on board all those travelling on the Applicant’s boat. The next morning the naval ship arrived at the Ashmore Islands within the Territory of Ashmore and Cartier Islands. The Applicant was then transferred to an Australian Customs vessel and travelled to Darwin, arriving on 14 April 2013. On 20 April 2016 the Applicant applied for a Safe Haven Enterprise (subclass 790) Visa (SHEV). In support of his application for the SHEV, the Applicant made a statutory declaration in which he claimed to fear persecution from members of the Awami League by reason of his membership of the Bangladesh Nationalist Party and his having sought asylum in Australia unsuccessfully. As a result of being an unauthorised maritime arrival and entering Australia at an excised offshore place (at that time), the Applicant was subject to the fast track review process in Part 7AA of the Migration Act. On 20 July 2016 a delegate for the Minister made a decision to refuse to grant a SHEV to the Applicant (Delegate’s Decision). On 3 August 2016 the Minister referred the Delegate’s Decision to the IAA pursuant to s.473CA of the Migration Act for review under Part 7AA of the Migration Act.