EHB17 v Minister for Home Affairs - [2018] FCA 1280

FEDERAL COURT OF AUSTRALIA
EHB17 v Minister for Home Affairs [2018] FCA 1280

Appeal from: Application for extension of time: EHB17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 304

File number: WAD 98 of 2018

Judge: THAWLEY J

Date of judgment: 22 August 2018

Catchwords: MIGRATION – application for an extension of time to appeal from orders of the Federal Circuit Court of Australia – where the Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority – where the grounds of review were without particulars – application for extension of time dismissed

Legislation:
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A); Pt 7AA

Federal Court Rules 2011 (Cth) rr 36.03, 36.05

Cases cited:
BBT16 v Minister for Home Affairs [2018] FCA 1225

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

Date of hearing: 22 August 2018

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondents: Ms S J Oliver

Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

WAD 98 of 2018

BETWEEN:
EHB17

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

22 AUGUST 2018

THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
2.The applicant pay the costs of the first respondent fixed in the amount of $1,756.00 within three months.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
THAWLEY J:

The applicant filed an application for an extension of time and a supporting affidavit on 16 March 2018. The application has been treated as one made under r 36.05 of the Federal Court Rules 2011 (Cth) (FCRs) for an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court of Australia made on 7 February 2018. The affidavit has been treated as identifying the proposed grounds of appeal, there not otherwise being any draft notice of appeal or other document identifying the grounds of appeal.
The Federal Circuit Court’s decision dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 1 September 2017. The Authority affirmed a decision made on 17 February 2017 of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) refusing the applicant’s application made on 12 September 2016 for a temporary protection visa.
BACKGROUND
The applicant is of Tamil ethnicity and is from Kandy District in the Central Province of Sri Lanka. He lived most of his life in Vavuniya District in Sri Lanka.
The applicant arrived in Australia as an unauthorised maritime arrival on 26 October…

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] FCA 1280
Decision Date: 22 August 2018

CaseChat Overview and Summary

EHB17 sought an extension of time to appeal from orders of the Federal Circuit Court of Australia that had dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The grounds of review in the Federal Circuit Court were found to be without particulars. The Minister for Home Affairs opposed the application for an extension of time, and the matter came before the court to determine whether the extension should be granted.

The court considered the provisions of the Federal Court Rules 2011 and assessed whether there was a basis for granting the extension of time. The court noted that the application was not supported by particulars and found that there was no basis for the grant of relief. The court concluded that the application for an extension of time should be dismissed and ordered that the applicant pay the costs of the Minister fixed in the amount of $1,756.00, being the amount contemplated by the relevant rules.

The court found that the applicant had not shown any basis for the grant of relief and dismissed the application for an extension of time. The court further ordered that the applicant pay the costs of the Minister, fixed in the amount of $1,756.00 within three months. The Minister did not object to the three-month period for payment.

The court made it clear that the application for an extension of time was dismissed and that the applicant was required to pay the costs of the Minister. The court also allowed the applicant a three-month period to pay the costs, as the Minister did not object to this arrangement.

Orders

Orders of the court

1. The application for an extension of time is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $1,756.00 within three months.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The sixth paragraph is not a ground of appeal but a claim for relief. No basis has been shown for the grant of relief. CONCLUSION The application for an extension of time is dismissed. The Minister seeks costs fixed in the amount of $1,756.00, being the amount contemplated by r 40.43 and sch 3, cl 15.1(b) of the FCRs. It is appropriate that the applicant pay costs fixed in that amount. The applicant asked that he be given three months to pay and the Minister did not object to such an order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for extension of time: EHB17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 304
File number:	WAD 98 of 2018
Judge:	THAWLEY J
Date of judgment:	22 August 2018
Catchwords:	MIGRATION – application for an extension of time to appeal from orders of the Federal Circuit Court of Australia – where the Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority – where the grounds of review were without particulars – application for extension of time dismissed
Legislation:	Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A); Pt 7AA Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Cases cited:	BBT16 v Minister for Home Affairs [2018] FCA 1225 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	22 August 2018
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Ms S J Oliver
Solicitor for the Respondents:	Sparke Helmore Lawyers