FPT17 v Minister for Home Affairs

[2018] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPT17 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1662

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Independent Assessment Authority – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time granted.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2)

Applicant: FPT17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3960 of 2017

Judgment of: Judge Manousaridis

Hearing dates: 24 April 2018, 29 May 2018 & 7 June 2018

Date of Last Submission: 7 June 2018

Delivered at: Sydney

Delivered on: 7 June 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: HWL Ebsworth Lawyers

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35-day period prescribed by s.477(1) of the Act for the making of an application for relief under s.476 of the Act in relation to the decision of the second respondent made on 16 July 2016 is extended to 20 December 2017.

2. The application is listed for final hearing before Judge Manousaridis at 10.15 am on 11 July 2018.

3. The applicant may file and serve any further affidavit and any submissions by 22 June 2018.

4. By 4 July 2018 the Minister file and serve his written submissions and may by that date file any further affidavits on which the Minister intends to rely.

5. The parties have liberty to apply on such notice as the circumstances warrant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3960 of 2017

FPT17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before the Court is an application under s.477(2) of the Migration Act 1958 (Cth) (Act) seeking an order that the time for making an application for a remedy under s.476 of the Act be extended. The application arises out of a decision made by the second respondent (Authority), which was made on 18 July 2016.  By that decision the Authority affirmed a decision made by a delegate of the first respondent not to grant the applicant a Temporary Protection (Subclass 785) visa (TP visa).

2. The need for extension of time has arisen because the applicant has filed an application for judicial review of the Authority’s decision on 20 December 2017, which is obviously outside, and significantly outside, the 35-day period prescribed by s.477(1) of the Act.

3. The principles governing the exercise of the power under s.477(2) are well-known and there is no need for me to say much about those now. All I need to say is that an order may be made s. 477(2) of the Act if two things are satisfied. One is that an application for such order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. The second is that the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

4. Fairly extensive evidence has been given on this hearing and I do not propose to go through it.  I will only refer to what I understand to be its effect.  I first turn to the explanation given by the applicant for not having filed his application before the time he did.  The effect of the applicant’s evidence is that at the time the Authority notified the applicant, which it did by post, the applicant was not present at the address to which the decision was sent.  He was in Brisbane.

5. There is no suggestion that he had notified the Department of Immigration and Border Protection (Department) of his movement to Brisbane and, as the Minister submitted, his not becoming aware of the decision because he moved to Brisbane is not a reasonable explanation for his delay because the applicant ought to have known that he should communicate to the Department his movements or otherwise the Department would be unable to provide him with important information.  That, however, is only one of the matters I need to consider.  The other matter I need to consider is whether there is any apparent merit in the grounds raised. 

6. The applicant is unrepresented, and the grounds set out in the application are not clear.  What is implied, though, in what is in those grounds, and what the applicant confirmed both in what he said to me from the bar table and what he said while in the witness box, and indeed, in what he said in documents he handed to me, is that he did not receive notification of the delegate’s decision to refuse to grant the applicant a TP visa. To my mind that very allegation gives rise to at least an arguable issue, and that is whether notification of a delegate’s decision which is subject to the provisions that deal with the referral of decisions to the Authority is relevant to the valid exercise of jurisdiction by the Authority. 

7. Although I have not looked into the question, there might well be a basis for arguing it is relevant because although the referral of a decision to the Authority is automatic, and an applicant has no right to be interviewed by the Authority in the course of the Authority’s reviewing a delegate’s decision, nevertheless it may be arguable that an applicant has certain rights, albeit limited rights, in relation to a review undertaken by the Authority, and that such rights can only be availed of if an applicant has been notified of the delegate’s decision.

8. My saying that “it is arguable” is not based on my having done any research on it, or indeed, having heard any details of any submissions from the first respondent.  That issue, however, arises only if there is any doubt about whether the delegate’s decision was in fact notified to the applicant.  There are rather elaborate provisions in the Act dealing with the notification of various decisions.  In most if not all of the cases with which the relevant provisions of the Act deal concerning notification, actual notification of a decision is not necessary provided notification has been given in a manner provided for by the relevant provision. 

9. A potential difficulty in the case before me, however, is that the applicant has given evidence that he had informed an officer of the Department in a conversation of his having moved from the address he had notified to the Department in writing.  There are business records which have been tendered into evidence which appear to be inconsistent with that evidence of the applicant.  That gives rise to two issues.  One is whether an oral communication of change of address is sufficient notification for the relevant provisions of the Act which deal with notification. Secondly, assuming that an oral notification is sufficient, the question that arises is whether I should accept the applicant’s evidence rather than evidence contained in a business record which may be inconsistent with it. 

10. In my opinion these matters raise a sufficiently arguable case.  If I weigh these matters with the inadequate explanation I would still be satisfied that it is necessary in the interests of the administration of justice to make an order extending time.  And that is my conclusion on this application; and I will make an order to that effect in a moment.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 June 2018