Fed20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1063

FEDERAL CIRCUIT COURT OF AUSTRALIA

FED20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1063

File number(s):

SYG 2883 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

18 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) Visa – application for an extension of time under s 477 of the Migration Act 1958 (Cth) – where the Tribunal found that it did not have jurisdiction – where the applicant is in immigration detention – oral application for an adjournment – prior adjournment granted by the Court – oral application for an adjournment refused – whether an extension of time is necessary in the administration of justice – whether the application for an extension of time has merit – no arguable case on the merits – application for extension of time under s 477 of the Migration Act 1958 (Cth) dismissed

Legislation:

Migration Act 1958 (Cth), ss 476, 477

Constitution s 75(v)

Number of paragraphs:

16

Date of hearing:

18 May 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the respondent:

Ms S Given, HWL Ebsworth Lawyers

ORDERS

SYG 2883 of 2020

BETWEEN:

FED20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 MAY 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

2.The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in which the applicant seeks an extension of time under s 477 of the Act. The application is relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 October 2020, in which the Tribunal found that it did not have jurisdiction.

2. On 3 September 2020, a delegate of the first respondent (“the delegate”) refused the applicant’s application for a Protection (Subclass 866) Visa (“the Visa”).

3. The applicant is a citizen of Afghanistan. The applicant applied for the Visa on the basis of his actual and imputed political opinion as someone with links to the United Sates Military and his membership of a particular social group and for other reasons, including problems with his family.

4. On the evidence before the Court, the applicant was notified of the delegate’s decision by hand, whilst in detention, when it was delivered to him on 3 September 2020.

   THE GROUND

5. The Ground in the application is as follows:

   Member failed to take into account the fact applicant is in Villawood detention centre and COVID 19 to use discretionary power to accept the review application filed 4 day late which led to miscarriage of justice.

   BEFORE THE COURT

6. These proceedings were originally commenced on 16 December 2020.

7. On 18 February 2021, a Registrar of the Court made orders fixing the matter for hearing on 19 April 2021, and granting the applicant an opportunity to file an amended application and affidavit evidence and submissions. 

8. The matter was part heard on 19 April 2021 and stood over to today, 18 May 2021, on the basis that the applicant believed he was obtaining legal representation. On that occasion, the Court also took into account that the applicant was, and remains now, in immigration detention.

9. At today’s hearing, the applicant sought a further adjournment in order to obtain legal representation that he believed would be attending the hearing. Whilst the applicant did convey that he had communications with certain persons, the Court is not satisfied that any legal practitioner has been instructed to appear on behalf of the applicant. Any such practitioner would be aware of their duty to file a notice of address for service, as well as their need to attend the hearing, and the orders on the Commonwealth Courts Portal today.

10. The adjournment was opposed by the first respondent. The Court is not satisfied that an adjournment is warranted in the interests of administration of justice. The Court has taken into account the earlier adjournment already granted, and it is not satisfied that a further adjournment would result in representation of the applicant.

11. The Court has also taken into account the want of merit in the substantive application for an extension of time. In relation to the extension of time, the delay was 15 days. The applicant has explained difficulties that he had in commencing the proceedings, given that he was in detention. That includes his difficulty in relation to reading and writing English.

12. The Court would regard the applicant’s explanation for the delay as being, of itself, satisfactory. No prejudice is suggested in respect of either respondent. However, the more critical issue is, at an impressionistic level, the merits of the substantive application. 

13. The Ground in the application assumes that the Tribunal had certain power to extend time, which it did not. At an impressionistic level, the Tribunal complied with its obligations of procedural fairness in notifying the applicant of the difficulties in respect of jurisdiction. On the evidence before the Court, the Tribunal appears to be correct in holding that it did not have jurisdiction.

14. The notification letter sent to the applicant appears to comply with the requirements of the Act. In these circumstances, at an impressionistic level, the Court is not satisfied that there is an arguable case on the merits. The Court is not satisfied that it is necessary in the administration of justice to extend time under s 477 of the Act.

15. Accordingly, the application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

16. The Court notes that, since publication of the oral reasons of the Court there has been a material change in respect of the existence of Afghanistan with the takeover by the Taliban and the declaration of the Islamic Emirate of Afghanistan, and that the country against which the applicant’s claims were assessed no longer exists. In these circumstances, the Court strongly recommends that this is an appropriate matter for the Minister to intervene and/or to permit a further assessment of the applicant’s claims. For abundance of caution, the Court adds that this means the delegate’s decision before a Court with jurisdiction in respect of the same is exposed to being the subject of prerogative relief under s 75(v) of the Constitution. The Court expects this note to be drawn to the attention of the Minister as a model litigant.

I certify that the preceding sixteen (16) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       29 September 2021