GKH18 v Minister for Immigration - [2019] FCCA 2844

FEDERAL CIRCUIT COURT OF AUSTRALIA

GKH18 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2844

Catchwords:
MIGRATION – Extension of time application - Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – minimal delay – acceptable explanation – conceded lack of prejudice – no merit in substantive application – extension of time refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.05
Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5H, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473 GB, 477

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
AZZ18 v Minister for Home Affairs [2019] FCA 844
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

First Applicant:

GKH18

Second Applicant:

GKI18

Third Applicant:

GKJ18

Fourth Applicant:

GKK18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 657 of 2018

Judgment of:

Judge Kendall

Hearing date:

20 September 2019

Date of Last Submission:

20 September 2019

Delivered at:

Perth

Delivered on:

23 September 2019

REPRESENTATION

Applicants:

The second applicant appeared in person and on behalf of the first, third and fourth applicants

Counsel for the First Respondent:

Mr T Lettenmaier

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
The first and second applicants’ pay the first respondent’s costs fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 657 of 2018

GKH18

First Applicant

GKI18

Second Applicant

GKJ18

Third Applicant

GKK18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 1 November 2018.
The IAA’s decision affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicants a Safe Haven Enterprise visa (the “visa”).
The application to this Court was filed four days outside the statutory time limit imposed by s.477 of the Migration Act 1958 (Cth) (the “Act”). In order to obtain assistance from this Court, the applicants must…

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 2844
Decision Date: 23 September 2019

CaseChat Overview and Summary

In *GKH18 v Minister for Immigration*, the applicant sought an extension of time to appeal a decision of the Immigration Assessment Authority (IAA) concerning a Safe Haven Enterprise visa. The Minister for Immigration was the respondent. The application for an extension of time was heard by Judge Kendall.

The central legal issue before the court was whether to grant the applicant an extension of time to lodge an appeal against the IAA's decision. This required the court to consider the applicant's explanation for the delay in filing the appeal, the extent of that delay, and whether the respondent would suffer any prejudice if an extension were granted. The court also had to assess, albeit in a preliminary way, the merits of the substantive application for review.

Judge Kendall refused the application for an extension of time. The court found that while the delay was minimal and the explanation provided was acceptable, there was no merit in the substantive application for review. Consequently, the court determined that it was not in the interests of justice to grant an extension of time, and therefore, the appeal could not proceed.

Orders