EBT16 v Minister for Home Affairs - [2019] HCA 44

HIGH COURT OF AUSTRALIA
GAGELER J
EBT16 PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
EBT16 v Minister for Home Affairs
[2019] HCA 44
Date of Judgment: 13 November 2019
B37/2019
ORDER
1.The application is dismissed.
2.The plaintiff is to pay the first defendant's costs.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GAGELER J. By application for a constitutional or other writ filed in the original jurisdiction of the High Court under s 75(v) of the Constitution on 18 June 2019, the plaintiff seeks a writ of certiorari quashing two orders made by the Federal Circuit Court on 14 January 2019, consequent upon ex tempore reasons delivered on that day[1]. By the first order, the Federal Circuit Court refused an application by the plaintiff for an extension of the time prescribed by s 477(1) of the Migration Act1958 (Cth) for the filing of an application for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant to the plaintiff a Protection (Class XA) visa. The second order went on to dismiss the application for judicial review in respect of which the extension of time was sought. The plaintiff seeks as well a writ of mandamus requiring the Federal Circuit Court to determine his application for an extension of time according to law.
[1]EBT16 v Minister for Home Affairs [2019] FCCA 75.
Before filing the present application, the plaintiff made an application to the Federal Court for an extension of the time in which to seek leave to appeal from the order of the Federal Circuit Court refusing the application for an extension of the time prescribed by s 477(1) of the Migration Act. The Federal Court dismissed that application on the basis that the proposed appeal would be incompetent by reason of s 476A(3)(a) of the Migration Act[2].
[2]EBT16 v Minister for Home Affairs [2019] FCA 832.
The Federal Court would have jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to hear and determine an application for judicial review of the orders of the Federal Circuit Court. Contrary to a submission of the Minister, however, the mere availability of that alternative avenue of judicial review presents no impediment to the plaintiff making the application which he now makes to the High Court. Had the application raised an arguable basis for the relief sought, I would have considered it appropriate for the application to be remitted to the Federal Court under s 44 of the Judiciary Act. In the result, for reasons I am about to explain, I do not consider that the application raises an arguable basis for that relief and propose to dismiss it for that reason under r 25.09.1 of the High Court Rules 2004 (Cth).
The application relies on two…

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] HCA 44
Decision Date: 13 November 2019

CaseChat Overview and Summary

The applicant, EBT16, sought judicial review in the Federal Circuit Court of Australia of a decision made by the Administrative Appeals Tribunal. The applicant required an extension of time to file their application for judicial review, which was refused by the Federal Circuit Court under section 477(2) of the *Migration Act 1958* (Cth). Consequently, the Federal Circuit Court ordered that the application be dismissed.

The central legal issues before Gageler J were whether the Federal Circuit Court possessed the jurisdiction to dismiss the applicant's application for judicial review when an extension of time had been refused under section 477(2) of the *Migration Act*, and whether it was permissible for the Federal Circuit Court to assess the full merits of the application in such circumstances. The nature of the prohibition imposed by section 477(1) of the Act was also a key consideration.

Gageler J reasoned that section 477(1) of the *Migration Act* prohibits a court from exercising jurisdiction to review a decision if the application for review is filed outside the prescribed time limits, unless an extension of time is granted. The refusal of an extension of time under section 477(2) therefore meant that the court lacked the necessary jurisdiction to proceed with the judicial review application. His Honour concluded that the Federal Circuit Court did not err in dismissing the application, as it was not permissible to assess the full merits of an application over which it had no jurisdiction. The prohibition in section 477(1) was understood to operate as a jurisdictional bar.

The application was dismissed, and the plaintiff was ordered to pay the first defendant's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The plaintiff is to pay the first defendant's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER J

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Ratio Decidendi

Legal Principle Established

Established by: GAGELER J

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