FBC17 v Minister for Immigration - [2018] FCCA 784

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBC17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 784

Catchwords:
MIGRATION – Judicial review – where no application to extend time for filing of judicial review application.

PRACTICE AND PROCEDURE – Time limitation for filing of judicial review application – bases for order extending time – where written application required – where no written application to extend time for filing of judicial review application.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt 3, Div 1, Item 3
Migration Act 1958 (Cth), ss.476, 477

Cases cited:

Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48
SZRBN v Minister for Immigration & Citizenship [2012] FMCA 384
SZRBN v Minister for Immigration & Citizenship [2012] FCA 984
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726

Applicant:

FBC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 621 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

28 March 2018

Date of Last Submission:

28 March 2018

Delivered at:

Perth

Delivered on:

28 March 2018

REPRESENTATION

For the Applicant:

No appearance

Counsel for the First Respondent:

Mr P Macliver

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
The applicant pay the first respondent’s costs in the amount of $7,328 by 28 April 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 621 of 2017

FBC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered orally and subsequently edited)

Introduction

By way of a purported application for judicial review (“Judicial Review Application”) filed on 16 November 2017 the applicant seeks review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The IAA Decision dated 10 October 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a class XA protection visa to the applicant.

Extension of Time Application

Under s.477(1) of the Migration Act the Judicial Review Application to this Court was required to be filed within 35 days of the date of the IAA Decision. The date of the IAA Decision is 10 October 2017 and the Judicial Review Application was required to be filed by 14 November 2017. The Judicial Review Application was filed on 16 November 2017, and is therefore 2 days out of time.
The need for an extension of time in which to file the Judicial Review Application was brought to the applicant’s attention at the directions hearing in this matter on 15 December 2017, where a Registrar made orders, including an order (being Order 3) requiring the applicant to file any amended application including an application for an extension of time (“Registrar’s…

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 784
Decision Date: 28 March 2018

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an application for judicial review brought by FBC17 against the Minister for Immigration. The core of the dispute concerned the applicant's failure to file their judicial review application within the prescribed time limits and the absence of a formal application to extend that time.

The central legal issue before the Court was whether it possessed the power to extend the time for filing a judicial review application in the absence of a written application for such an extension. This required the Court to consider the relevant legislative provisions and procedural rules governing the filing of judicial review applications and the circumstances under which time extensions might be granted.

Judge Lucev reasoned that the legislative framework, specifically the *Administrative Decisions (Judicial Review) Act 1977* (Cth) and associated rules of court, mandates a written application for an extension of time. The Court found that while it has the power to grant extensions, this power is contingent upon a proper application being made. In this instance, as no written application for an extension of time had been filed by FBC17, the Court was unable to grant the relief sought. Consequently, the application for judicial review was dismissed.

Orders