Eqj17 v Minister for Immigration - [2018] FCCA 2597

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQJ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2597

Catchwords:
MIGRATION – Immigration Assessment Authority – application to extend time under s 477 of the Migration Act 1958 (Cth) – application filed out of time – no satisfactory explanation for the delay – no sufficiently arguable case of jurisdictional error made out by proposed grounds in the amended application – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 36, 473DB, 473DD, 476, 477.

Applicant:

EQJ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3223 of 2017

Judgment of:

Judge Street

Hearing date:

12 September 2018

Date of Last Submission:

12 September 2018

Delivered at:

Sydney

Delivered on:

12 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Stamford Law

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

Clayton Utz

ORDERS

Grant leave to the applicant to rely on the amended application filed 3 September 2018.
The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 12 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3223 of 2017

EQJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 17 October 2017 seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 January 2016 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant is a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. On 17 December 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Authority’s reasons

On 21 December 2015, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide submissions on 8 January 2016. The Authority’s reasons identified having considered those submissions and had regard to the same, insofar as they engaged with the delegate’s submissions and in respect of certain country information which the Authority found was before the delegate. The Authority identified that there was country information that was not before the delegate when the delegate’s decision was made. The Authority’s reasons plainly reflect having regard to both limbs of s 473DD…

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 2597
Decision Date: 12 September 2018

CaseChat Overview and Summary

The applicant, Eqj17, sought an extension of time under section 477 of the *Migration Act 1958* (Cth) to appeal a decision of the Immigration Assessment Authority. The application for an extension of time was filed after the prescribed period had expired. The Minister for Immigration was the respondent. The matter came before Judge Street of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether to grant the applicant an extension of time to lodge their appeal. This required the Court to consider whether the applicant had provided a satisfactory explanation for the delay in filing the application and whether the proposed grounds of appeal, as amended, disclosed a sufficiently arguable case of jurisdictional error.

Judge Street dismissed the application for an extension of time. The Court found that the applicant had not provided a satisfactory explanation for the significant delay in filing the application. Furthermore, the Court determined that the grounds of jurisdictional error raised in the amended application were not sufficiently arguable to warrant granting an extension of time. Consequently, the Court made no orders in favour of the applicant.

Orders