FLP17 v Minister for Home Affairs - [2019] FCCA 1268

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLP17 v MINISTER FOR HOME AFFAIRS

[2019] FCCA 1268

Catchwords:
MIGRATION – Protection visa – application for leave to amend grounds – where amended application not filed within time frame set by Registrar – whether proposed amended ground lacked merit – where applicant conceded existing ground of application lacked merit – application to amend dismissed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1)(a)(v), 5J(1)(c) and 91WA(1) & (2)(a)

Cases cited:

DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851

FCS17 v Minister for Immigration & Border Protection [2019] FCCA 1024
DWY17 v Minister for Immigration & Border Protection – ADG 358 of 2017
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18

Applicant:

FLP17

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

ADG 515 of 2017

Judgment of:

Judge Heffernan

Hearing date:

6 May 2019

Date of Last Submission:

6 May 2019

Delivered at:

Adelaide

Delivered on:

6 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr P Barnes

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Counsel for the Respondent:

Mr D F O'Leary

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The name of the respondent be amended to read ‘Minister for Home Affairs’.
The application for leave to rely on the Amended application is dismissed.
The Application filed on 13 December 2017 is dismissed.
The applicant pay the costs of the respondent fixed in the amount of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 515 of 2017

FLP17

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

This is an application by the applicant for leave to file an Amended Application. The existing Application was filed on 13 December 2017 and is an application for judicial review of a decision of a delegate of the respondent (‘the original application’). That decision found that the applicant was an excluded fast-track applicant pursuant to s.5(1)(a)(v) of the Migration Act 1958 (Cth) (‘the Act’), and for that reason the delegate’s decision comes before this Court.
The applicant appeared before a Registrar of this Court on 7 February 2018 and orders were made on that occasion giving him leave to file and serve any Amended Application by 30 March 2018. He was also given leave to file any further material, including transcript, and other materials he sought to rely upon at the hearing of this matter by 30 March 2018. He did not file an Amended application by that date or any other materials.
An Amended Application was filed on 2 May 2019, outside the timeframe permitted by the Registrar. Hence the application for leave to rely on the Amended Application. That application is opposed by the respondent. In support of the application for leave to rely on the Amended Application, the applicant relies on the affidavit of Besmellah Rezaee affirmed on 6 May 2019. He is the solicitor for the applicant. The affidavit indicates that his services…

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: [2019] FCCA 1268
Decision Date: 6 May 2019

CaseChat Overview and Summary

The applicant, FLP17, sought leave to amend the grounds of its application for judicial review concerning a decision by the Minister for Home Affairs. The application was heard by Judge Heffernan in the Federal Circuit and Family Court of Australia. The core of the dispute revolved around the applicant's attempt to introduce a new ground for review after the time limit set by the Registrar had expired.

The primary legal issue before the Court was whether to grant leave to amend the application to include a new ground of review, particularly given that the applicant conceded its existing ground lacked merit. This required the Court to consider the prospects of success of the proposed amended ground and whether it was appropriate to permit an amendment outside the prescribed time frame.

Judge Heffernan dismissed the application to amend the grounds. The Court reasoned that the proposed amended ground lacked merit, and the applicant had already conceded that the existing ground of its application was without merit. Consequently, the Court found no basis to grant leave for the amendment, leading to the dismissal of the entire application.

Orders