EZA17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EZA17 v Minister for Home Affairs [2018] FCA 713

Appeal from: Application for urgent interlocutory relief, extension of time and leave to appeal: EZA17 v Minister for Immigration & Anor [2018] FCCA 394
File number: NSD 768 of 2018
Judge: THAWLEY J
Date of judgment: 15 May 2018
Catchwords: MIGRATION – application for order preventing removal from Australia – where applicant filed an application for extension of time and leave to appeal from a decision of the Federal Circuit Court outside of the prescribed period – where no adequate explanation for delay – where no reasonable prospects of appeal being successful – where balance of convenience does not lie in favour of application being granted – application dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Migration Act 1958 (Cth), ss 198(2B), 499, 501(3A), 501CA

Federal Court Rules 2011 (Cth), r 35.13

Federal Circuit Court Rules2001 (Cth), r 44.12(1)(a)
Cases cited:

Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344

SZNOE v Minister for Immigration and Border Protection [2012] FCA 96

Date of hearing: 15 May 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

NSD 768 of 2018
BETWEEN:

EZA17

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

15 MAY 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs as agreed or assessed.

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


REASONS FOR JUDGMENT

THAWLEY J:

  1. By an interlocutory application filed earlier this afternoon the applicant seeks various orders, including an order preventing his removal from Australia, that removal being proposed to take place tomorrow at 12.55 pm. 

  2. On 14 May 2018, that is yesterday, the applicant filed an application for an extension of time and leave to appeal. The applicant required leave to appeal because the decision from which he wishes to appeal was an interlocutory decision of the Federal Circuit Court. The applicant had made an application for judicial review to that Court which was heard at a show cause hearing under r 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth). That rule permits the Federal Circuit Court, at a hearing of an application for an order to show cause, to dismiss the application if it is not satisfied that it has raised an arguable case for the relief claimed. Because such a dismissal is interlocutory (see: r 44.12(2)), the applicant requires leave of this Court to appeal – see: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth).

  3. An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or…

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Details
Case
[2018] FCA 713
Decision Date

CaseChat Overview and Summary

The matter of EZA17 v Minister for Home Affairs involved an application by the applicant, a citizen of Fiji born in 1985 who arrived in Australia as a child, for an order preventing his removal from Australia. The applicant had his visas cancelled on character grounds and had applied for a protection visa which was refused by the delegate of the Minister for Home Affairs. The decision was affirmed by the Administrative Appeals Tribunal. The applicant filed an application for extension of time and leave to appeal from the decision of the Federal Circuit Court outside of the prescribed period without an adequate explanation for the delay. The applicant also lacked reasonable prospects of the appeal being successful and the balance of convenience did not lie in favour of the application being granted.

The legal issues before the court were whether the applicant had a valid reason for the delay in filing the application, whether there were reasonable prospects of the appeal being successful, and whether the balance of convenience favoured the grant of the application. The court considered the applicant's difficult circumstances and mental health issues but did not give these factors significant weight against the applicant. The court found that the delay was relatively lengthy and the explanation was poor. The court also found that the applicant did not have reasonable prospects of the appeal being successful and that the balance of convenience did not lie in favour of the application being granted.

The court dismissed the application for an order preventing removal from Australia. The court ordered that the applicant pay the first respondent's costs as agreed or assessed. The court took into account the applicant's difficult circumstances and mental health issues but did not give these factors significant weight against the applicant. The court found that the delay was relatively lengthy and the explanation was poor. The court also found that the applicant did not have reasonable prospects of the appeal being successful and that the balance of convenience did not lie in favour of the application being granted. The court dismissed the application and ordered that the applicant pay the first respondent's costs as agreed or assessed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the first respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

Also before the Court is the order and decision of the Federal Circuit Court which was annexed to the affidavit of the applicant. In addition, there is before the Court the court book which was before the Federal Circuit Court which contains the decision of the delegate of the Minister dated 2 August 2017 and the decision of the Administrative Appeals Tribunal dated 10 October 2017.BACKGROUND The facts as they appear from the material before the Court are as follows. The applicant was born in Fiji on 16 May 1985, is a citizen of Fiji and arrived in Australia on 7 December 1987 as a two-year-old child. He was subsequently granted a number of visas. These are set out in the decision of the delegate. In particular, he held, it would appear, two visas as at 6 January 2016, namely, a class BB subclass 155 visa and a bridging visa (subclass WA-010). These visas were cancelled on 6 January 2016 under s 501(3A) of the Migration Act 1958 (Cth) (Act). These visas, assuming there to be two, were cancelled on character grounds under subsection 501(3A). The applicant was entitled to, but did not, apply for revocation of the visa cancellations under s 501CA of the Act. Instead, the applicant applied on 2 July 2017 for a protection (class XA) visa. On 2 August 2017, the delegate refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision before the Tribunal by an application received by the Tribunal on 10 August 2017. The applicant appeared at a hearing before the Tribunal on 22 September 2017. The Tribunal made its decision on 10 October 2017, affirming the decision of the delegate not to grant the applicant a protection visa. In summary form, the applicant claimed to fear harm in Fiji because he had no family there, did not speak Fijian, would not be able to work in Fiji and would end up homeless. Although the applicant had not directly made a mental health claim in his written submissions, the delegate identified him as suffering from schizophrenia and therefore identified that the applicant had, as an integer of his claim, a claim regarding his mental health condition. The Tribunal also considered this claim. The applicant’s mother gave evidence to the Tribunal that the applicant’s paternal grandfather was Chinese and that she was concerned this may be adverse to the applicant in Fiji. The Tribunal considered that the applicant did not have a well-founded fear of harm. In particular, the Tribunal found there was no real chance that the applicant would suffer serious or significant harm in Fiji because of his inability to speak Fijian. The Tribunal noted that English is an official language of Fiji. The Tribunal accepted that the applicant had no family in Fiji. The Tribunal accepted that the applicant suffered depression and schizophrenia, notwithstanding the absence of supporting medical evidence. The Tribunal noted that, in accordance with “Ministerial Direction No 56” made under s 499 of the Act, the Tribunal was to take account of policy guidelines prepared by the Department (PAM3 Refugee and Humanitarian – Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian – Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes to the extent they were relevant to the decision under consideration.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The delay is relatively lengthy and the explanation is poor. However, I take into account the applicant’s difficult circumstances and his mental health issues. I did not give this factor significant weight against the applicant.CONCLUSION Taking into account the matters just referred to, in my view it is not appropriate to grant the interlocutory relief sought.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.