Huynh v Minister for Immigration - [2020] FCCA 1169

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUYNH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1169

Catchwords:
MIGRATION – Application for extension of time to file in the Federal Circuit Court – whether leave to file should be granted – whether it is necessary in the interests of the administration of justice to grant an extension of time.

Legislation:

Judiciary Act 1903 (Cth), ss.39B

Migration Act 1958 (Cth), ss.5F, 368, 476, 477

Migration Regulations 1994 (Cth), reg.1.15A

Cases cited:

AVL18 v Minister for Home Affairs [2019] FCA 706

AVQ15 v Minister for Immigration & Border Protection [2018] FCAFC 133

CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344

First Applicant:

HONG DIEP HUYNH

Second Applicant:

THI THU LIEU DANH

Third Applicant:

THI KIM NHI DANH

Fourth Applicant:

HOANG CHI THIEN DANH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 157 of 2018

Judgment of:

Judge McNab

Hearing date:

18 March 2020

Date of Last Submission:

18 March 2020

Delivered at:

Melbourne

Delivered on:

15 May 2020

REPRESENTATION

Counsel for the Applicants:

Mr Walker

Solicitors for the Applicants:

Suh & Co

Counsel for the First Respondent:

Ms Oliver

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for an extension of time filed on 26 March 2018 be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,737.00.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

PEG 157 of 2018

HONG DIEP HUYNH

First Applicant

THI THU LIEU DANH

Second Applicant

THI KIM NHI DANH

Third Applicant

HOANG CHI THIEN DANH

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 26 March 2018, the applicants seek an extension of time to seek judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 December 2017. By that decision, the Tribunal affirmed a decision made by a delegate (‘the delegate’) of the first respondent (‘the Minister’) to refuse to grant the applicants’ application for Partner (Temporary) (Class UK) (Subclass 820) visas (‘the visa’).

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: [2020] FCCA 1169
Decision Date: 15 May 2020

CaseChat Overview and Summary

In *Huynh v Minister for Immigration*, the applicant sought an extension of time to file an application in the Federal Circuit Court. The Minister for Immigration was the respondent. The core of the dispute concerned whether the court should grant leave to file the application out of time.

The Federal Circuit Court was required to determine whether it was necessary in the interests of the administration of justice to grant the applicant an extension of time to file their application. This involved considering the circumstances surrounding the delay and the potential prejudice to the parties.

Judge McNab considered the principles governing extensions of time in the Federal Circuit Court, particularly the overarching consideration of the interests of the administration of justice. The court weighed the applicant's reasons for the delay against the potential impact on the respondent and the court's processes. The decision would ultimately turn on whether the applicant could demonstrate a compelling reason why an extension should be granted, despite the lateness of the application.

Orders