Ebt16 v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBT16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 75

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 36(2)(a)

Applicant: EBT16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 417 of 2018

Judgment of: Judge Vasta

Hearing date: 14 January 2019

Date of Last Submission: 14 January 2019

Delivered at: Brisbane

Delivered on: 14 January 2019

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application for an extension of time is refused.

2. That the Application filed 30 April 2018 is otherwise dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 417 of 2018

EBT16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant is a citizen of Bangladesh.  He obtained a visitor visa and arrived in this country on 4 May 2015.  That visa would have expired on 4 August 2015.  On 21 July 2015, the Applicant made his application to stay in Australia. 

2. This matter has been the subject of an Administrative Appeals Tribunal (“the AAT”) decision back on 1 December 2016.  On 23 December 2016, the Applicant applied to this Court for judicial review of the Tribunal’s decision.  On 1 August 2017, this Court ordered, by consent, that the matter be remitted to the Tribunal for reconsideration.

3. After that remittal, the Applicant was given the chance to appear before a differently constituted Tribunal.  He appeared before that Tribunal on 29 January 2018 and 8 February 2018.  He gave evidence and he presented arguments. 

4. On 28 February 2018, the Tribunal again affirmed the decision of the delegate not to grant the Applicant the protection visa.

5. That decision, having been made on 28 February 2018, meant that the Applicant had 35 days in which to come to this Court.  That 35 days expired sometime in early April 2018, it would seem.  The Applicant did not file his application until 30 April 2018.  He is therefore out of time unless it is that this Court allows an extension of time.

6. There are three matters that the Court looks at as to whether the grant of an extension of time should be given.  Firstly, there is the question of, what was the excuse for not filing the application in time; secondly, what is the prejudice, if any, to the Respondent; and thirdly, does the application itself warrant the Court looking at it. That is, are the merits sufficient so that a grant of leave should be given for the Court to consider the matter fully. 

7. The Applicant claims that he came from Faridpur Upazila, which is an administrative and geographic region.  He claims that he was the…