DGD18 v Minister for Home Affairs

[2019] FCCA 427

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 427

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – where leave for the extension of time for filling is refused – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), 13.03C(1)(e)

Applicant: DHD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 619 of 2018

Judgment of: Judge Vasta

Hearing date: 19 February 2019

Date of Last Submission: 19 February 2019

Delivered at: Brisbane

Delivered on: 19 February 2019

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the application for an extension of time is refused.

2. That the Application filed 22 June 2018 is otherwise dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 619 of 2018

DGD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is a matter where, on 23 March 2018, the Immigration Assessment Authority (“ the IAA”) affirmed a decision of the Minister not to grant the referred Applicant a protection visa.  The Applicant had 35 days from that date to launch any proceedings in this Court.  He did not do so in that time frame, but did file an application on 22 June 2018, 53 days after the 35-day time limit had expired.  Therefore, this was a matter that needed him to apply to the Court to extend time for the Applicant to file the matter. 

2. Because he filed on 22 June 2018, he appeared before Registrar Buckingham on 1 August 2018.  The Registrar made the usual orders, including that for filing of written submissions.

3. The Registrar had set the matter down on 11 February 2019 at 2.15 pm.  I had changed that to today’s date, 19 February, still at 2.15 pm.  The Applicant was informed of this.  The Applicant did not appear here on 11 February 2019, so there is no cause to think that he did not get the message from my Chambers.  He has not turned up today.  The interpreter has turned up instead.  He was called earlier today and was called again at 2.33 pm, some 18 minutes after the matter was supposed to begin.

4. I am of the view that I should proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and hear the matter on the merits.

5. This is an application for extension of time.  What the Court must look at is what is the excuse for not filing on time, what is the prejudice to the Minister, and are there sufficient merits in the application to warrant the Court looking at the matter. 

6. Firstly, the excuse is one of simply moving residence from Sydney to Brisbane.  The IAA sent the decision to the last known address, as it should, but also sent the decision with the information to the email of the Applicant.  There was no return or notification that it was not delivered.  Therefore, I do not accept the excuse that the Applicant has given, which is really no excuse at all. 

7. The application itself has one ground which is that the Immigration Assessment Authority and the Delegate of the Minister for Home Affairs erred in law in making his decision.  If I delete the Delegate for the Minister from that, the ground is simply that the IAA erred in law.  Such is too general for there to be illustrated any jurisdictional error. 

8. Notwithstanding that, I have read the decision of the IAA and the submissions of the Minister.  Having looked at all of those, I am not convinced that there has been error at all.

9. In all of these circumstances, I find that the Applicant has no proper excuse for filing late and that there are not sufficient merits in the application to warrant the Court exercising its discretion. 

10. Therefore, I refuse to exercise the discretion to allow the Applicant to file outside of the 35-day limit and I dismiss all remaining applications with costs in the sum of $7,467. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 May 2019