FEZ17 v Minister for Home Affairs

Case [2019] FCAFC 76

FEDERAL COURT OF AUSTRALIA

FEZ17 v Minister for Home Affairs [2019] FCAFC 76

Appeal from: FEZ17 v Minister for Home Affairs [2018] FCA 1689
File number: NSD 2184 of 2018
Judges: RARES, FLICK AND BURLEY JJ
Date of judgment: 17 May 2019
Catchwords: MIGRATION – appeal from the Federal Court of Australia – where the primary judge dismissed an application for judicial review of a decision of the Federal Circuit Court of Australia refusing to extend time under s 477(2) of the Migration Act 1958 (Cth) – whether the primary judge erred in determining the FCCA properly exercised its discretion under s 477(2) – appeal dismissed
Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) pt 7AA, ss 477(1), 477(2)
Cases cited:

Craig v South Australia [1995] HCA 58; 184 CLR 163

DUS17 v Minister for Home Affairs [2018] FCA 2120

FEZ17 v Minister for Home Affairs [2018] FCA 1689

FEZ17 v Minister for Immigration & Border Protection [2018] FCCA 1216
Date of hearing:  13 May 2019
Registry: New South Wales
Division: General
National Practice Area: Administrative and Constitutional Law and Human Rights
Category:  Catchwords
Number of paragraphs: 17
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent:  Mr G. Johnson
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 2184 of 2018
BETWEEN:

FEZ17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

RARES, FLICK AND BURLEY JJ

DATE OF ORDER:

17 MAY 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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


REASONS FOR JUDGMENT

THE COURT:

  1. The appellant is a citizen of Sri Lanka who applied for a Safe Haven Enterprise Visa on 14 July 2016 on the basis that he feared the Sri Lankan authorities due to: his Tamil ethnicity, his imputed association with the Liberation Tigers of Tamil Eelam, and his status as a failed asylum seeker who sought refuge in Australia. A delegate of the Minister for Home Affairs determined that the appellant was not entitled to the grant of the visa. The decision of the delegate was then the subject of a review by the Immigration Assessment Authority under Part 7AA of the Migration Act 1958 (Cth), and on 23 August 2017 the Authority reached the same conclusion.

  2. The appellant then applied for an extension of time within which to commence proceedings in the Federal Circuit Court of Australia (FCCA) within the original jurisdiction of that Court. By s 477(1) of the Act, the application must be filed within 35 days of the migration decision. In the present case, the application was filed 63 days outside the time required by s 477(1). The FCCA had power under s 477(2) of the Act to make an order extending the 35 day period as appropriate if…

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FEZ17 v Minister for Home Affairs [2019] FCAFC 76
Case
[2019] FCAFC 76
Decision Date

CaseChat Overview and Summary

In the case of FEZ17 v Minister for Home Affairs, the appellant, a non-citizen, appealed against a decision of the Federal Circuit and Family Court of Australia, which had dismissed his application for judicial review. The application sought review of a decision refusing to extend the time for lodging an application for a visa under section 477(2) of the Migration Act 1958 (Cth). The matter was brought before the Full Court of the Federal Court of Australia.

The central issue before the court was whether the primary judge was correct in determining that the Federal Circuit and Family Court of Australia properly exercised its discretion in refusing to extend the time for lodging an application for a visa. The appellant argued that the primary judge erred in his determination, while the Minister for Home Affairs maintained that the primary judge's decision was correct. The court was required to examine the relevant statutory provisions, the exercise of discretion by the primary judge, and the application of the relevant legal principles.

The Full Court of the Federal Court of Australia considered the arguments presented by both parties. The court found that the primary judge had exercised his discretion correctly in refusing to extend the time for lodging an application for a visa. The court held that the primary judge's determination was not erroneous and that the Federal Circuit and Family Court of Australia had properly exercised its discretion. Consequently, the appeal was dismissed, and the appellant was ordered to pay the first respondent's costs.

The final orders of the court were that the appeal was dismissed and the appellant was to pay the first respondent’s costs. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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