DNN18 v Minister for Home Affairs - [2018] FCCA 2926

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNN18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2926

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.477

Cases cited:

Fareed v Minister for Immigration & Anor [2016] FCCA 1179

Re Commonwealth of Australia & Anor; Ex parte Marks (2000) 177 ALR 491

SZLIH v Minister for Immigration [2009] FCA 108

SZNYE v Minister for Immigration [2010] FCA 500

SZRUG v Minister for Immigration & Anor[2013] FCCA 142

SZSDA v Minister for Immigration [2012] FCA 1319

Applicant:

DNN18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1888 of 2018

Judgment of:

Judge Driver

Hearing date:

16 October 2018

Delivered at:

Sydney, by videolink to Melbourne

Delivered on:

16 October 2018

REPRESENTATION

The Applicant appeared in person by videolink

Solicitors for the Respondents:

Ms K Underwood of Minter Ellison

INTERLOCUTORY ORDERS

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, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1888 of 2018

DNN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The show cause application was filed on 6 July 2018, nearly 12 months outside the period prescribed for such an application under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 October 2018.
The applicant is a female citizen of Malaysia.[1] The applicant arrived in Australia on 5 July 2012[2] and applied for a protection visa on 23 November 2015.[3] The applicant claimed to fear harm in Malaysia because she wanted to convert from Buddhism to Christianity. The applicant claimed that her family did not approve and wanted her to marry a devout Buddhist.[4]
[1] Court Book (CB) 62
[2] CB 124 at [2]
[3] CB 1
[4] CB 30
The delegate refused the application on 11 March 2016.[5] The delegate found the application to be vague, lacking in detail, and absent evidence.[6] The delegate was satisfied that, based on country information, the applicant did not face a real chance of persecution for reason of her religion.[7]
[5] CB 68
[6] CB 73
[7] CB 74
The applicant sought review of the delegate's decision by application to the Tribunal lodged…

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 2926
Decision Date: 16 October 2018

CaseChat Overview and Summary

DNN18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse an extension of time for the applicant to lodge a show cause application. The applicant had applied for a protection visa, which was refused by the delegate of the Minister. The applicant then sought an extension of time to lodge a show cause application in response to a notice issued by the respondent. This extension was refused, and the applicant sought review of that refusal.

The primary legal issue before the Court was whether the respondent's decision to refuse the extension of time was affected by jurisdictional error. This involved considering whether the respondent had properly exercised the discretion afforded to them under the relevant migration legislation when assessing the applicant's request for an extension. The Court also considered the applicant's argument that the respondent failed to provide adequate reasons for the refusal of the extension.

Driver J found that the respondent's decision was not affected by jurisdictional error. The Court held that the respondent had considered the relevant factors in determining whether to grant an extension of time, including the applicant's reasons for the delay and the merits of the underlying protection visa application. The Court also concluded that the reasons provided by the respondent, while brief, were sufficient to inform the applicant of the basis for the refusal. The Court applied the principles of administrative law concerning the exercise of discretionary powers and the adequacy of reasons for administrative decisions.

The application for judicial review was dismissed.

Orders