DBA16 v Minister for Home Affairs

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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:
Migration Act 1958 (Cth), ss. 473CA, 473EA, 476, 477

Federal Circuit Court Rules 2001 (Cth), r.44.05

Cases cited:

Amcor Ltd v Barnes [2016] VSC 707
Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198

DBA16 v Minister for Immigration & Anor [2017] FCCA 320

DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580
DBB16 v Minister for Immigration and Border Protection (NSD354/2017)
DBD16 v Minister for Immigration & Anor [2018] FCCA 1801
DBC16 v Minister for Immigration & Anor [2018] FCCA 1802
Doyle v Chief of General Staff (1982) 42 ALR 283
Douglas v Allen (1984) 1 FCR 287
Duff v Freijah (1982) 43 ALR 479
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375
Lucic v Nolan (1982) 45 ALR 411
Metwally v University of Wollongong (1985) 60 ALR 68
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Port of Melbourne Authority v Anshun (No 2) [1981] VR 81
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Sahin v National Australia Bank Ltd [2012] VSCA 317
Stuart v Sanderson (2000) 100 FCR 150
SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109
Timbercorp Finance Pty Ltd (In Liq) v Collins & Anor (2016) 259 CLR 212
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10

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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Details
Case
[2018] FCCA 2761
Decision Date

CaseChat Overview and Summary

In DBA16 v Minister for Home Affairs, Her Honour Judge C E Kirton QC considered an application for an extension of time to seek judicial review of a decision made by the Immigration Assessment Authority (IAA). The applicant, who had previously sought a Safe Haven Enterprise (subclass 790) Visa, was seeking to challenge the IAA's decision made on 15 September 2016. The current application, along with the substantive application for judicial review, was filed on 11 September 2018, approximately 23 months after the statutory time limit for such applications had expired.

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

The Applicant relied upon the Original Grounds at the hearing of the First Application. On 23 February 2017 the Federal Circuit Court dismissed the First Application in DBA16 v Minister for Immigration & Anor[1] (Federal Circuit Court Decision). Judge Driver held that the Applicant had not established that the IAA Decision was affected by any jurisdictional error. The Reasons for Judgment of Judge Driver in the Federal Circuit Court Decision included the following:26. A person who is subject to the FTAP is a “fast track applicant” a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.27. A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[2]. It is not in dispute the applicant was a fast track review applicant.28. Subject to certain exceptions which are not relevant for purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again there is no dispute that the delegate’s decision was a fast track decision. [1] [2017] FCCA 320.[2] Section 5(1). By a notice of appeal filed on 13 March 2017, the Applicant appealed the Federal Circuit Court Decision to the Federal Court. On 14 December 2017 the Federal Court of Australia dismissed the Applicant’s appeal from the Federal Circuit Court Decision in DBA16 v Minister for Immigration and Border Protection.[3] [3] [2017] FCA 1580. On 11 July 2018, Judge Smith of this Court gave judgment in two matters, DBD16 v Minister for Immigration & Anor[4] (DBD16) and DBC16 v Minister for Immigration & Anor[5] (DBC16). In each proceeding Judge Smith made declarations that the purported appointment of a port in the area of Ashmore and Cartier Islands was invalid on the basis that the relevant area could not meet the definition of a ‘port’ under the Migration Act. The Minister has appealed these decisions.[4] [2018] FCCA 1801.[5] [2018] FCCA 1802. On 6 August 2018, the Full Court of the Federal Court in DBB16 v Minister for Immigration and Border Protection[6] (Perram, Wigney and Lee JJ) (DBB16) made ex tempore orders and declarations in relatively identical terms to the orders made by Smith J in DBD16 and DBC16. The declarations made by the Full Court were as follows:1. The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid. 2.The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).3. The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016. [6] (NSD354/2017). A writ of certiorari was also issued by the Full Court quashing the relevant decision of the IAA.

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.