Kio v Minister for Home Affairs

[2019] FCA 579

FEDERAL COURT OF AUSTRALIA

Kio v Minister for Home Affairs [2019] FCA 579

File number:

VID 1114 of 2018

Judge:

MURPHY J

Date of judgment:

19 March 2019

Catchwords:

MIGRATION – application for an extension of time – application allowed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Guo v Minister for Immigration and Border Protection [2018] FCAFC 34

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

Mentink v Minister for Home Affairs [2013] FCAFC 113

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110

Date of hearing:

19 March 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

Ms G Costello

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms C Symons

Solicitor for the Respondent:

Sparke Helmore

ORDERS

VID 1114 of 2018

BETWEEN:

CHAN BIK KIO

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	19 MARCH 2019

THE COURT ORDERS THAT:

1.The application for an extension of time within which to lodge an application for review against the Respondent's decision of 19 June 2018 is allowed.

2.The Applicant have leave to file an amended application for review within 14 days.

3.Costs in the cause.

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

REASONS FOR JUDGMENT (revised from transcript)

MURPHY J:

1. This is an application for extension of time within which the applicant, Mr Chan Bik Kio, may file an application for judicial review of the decision of the respondent, the Minister for Home Affairs (Minister) made 19 June 2018 to cancel the applicant’s Class XB Subclass 200 (Refugee) visa (visa). The Minister decided to cancel the applicant’s visa under s 501(3)(b) of the Migration Act 1958 (Cth) (the Act) on the basis that he reasonably suspected that the applicant has a substantial criminal record as defined and therefore did not pass the character test under the Act, and the Minister was satisfied that the cancellation of the applicant’s visa was in the national interest.

2. Section 476A(1)(c) of the Act confers original jurisdiction on this court to review the Minister’s decision. Pursuant to s 477A(1) of the Act an application to this Court for a remedy to be granted in exercise of the court’s original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision must be made within 35 days of the date of the decision. The Minister made the relevant decision on 19 June 2018 and the applicant was therefore required to lodge any application for review of the decision by 24 July 2018.

3. The applicant did not file an application for review by that date. Instead, on 5 September 2018, he filed an application under s 477A(2) of the Act seeking an extension of time within which to lodge an application for review. He was therefore 45 days late in seeking review of the Minister’s decision.

4. Under s 477A(2) the Court has power to extend the 35 day period for lodging an application where it is satisfied that it is necessary in the interests of the administration of justice to grant an extension of time. In considering whether to exercise the discretion in the applicant’s favour, the Court considers, amongst other things, the applicant’s reason for delay and whether the application, if an extension of time were granted, would have any prospects of success: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J). The factors set out are not exhaustive, and the outcome of an application to extend time depends upon the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with Edmonds J agreeing).

5. In the present case the salient considerations include:

   (a)the length of the delay;

   (b)the adequacy of the explanation for the delay;

   (c)whether the application for review would have any prospects of success if an extension of time were granted; and

   (d)the prejudice, if any, that the Minister might suffer if an extension were granted. 

6. First, I do not consider a delay of 45 days to be significant in the circumstances of this case, and in my view the applicant has provided an adequate explanation.  The applicant has been in immigration detention since the Minister’s decision and he states that he could not meet the 35 day time limit because he could not obtain firm legal advice due to language difficulties and difficulty in finding someone to represent him within the time limit allowed.  At the time he was required to file the application for review he was waiting for advice from Victoria Legal Aid as to whether they would provide legal assistance. 

7. The applicant cannot speak English without an interpreter, and the relevant law is complex.  It is appropriate that he sought to obtain firm legal advice before lodging an application for review.  Having regard to those matters and the understandable delays within Victorian Legal Aid the delay is not gross and the applicant’s explanation is adequate. 

8. Second, the Minister did not argue that he would be prejudiced by the delay.  As against that, if an extension of time is not granted and the applicant is removed to his country of origin he submits that he will suffer serious consequences, including the possibility of execution.  Those factors militate strongly in favour of a grant of leave. 

9. Third, in relation to whether the proposed application has reasonable prospects of success, the applicant put forward five grounds under which he contends his application for review will succeed.  In the course of the hearing of the application for an extension of time the applicant also proposed a sixth ground. 

10. A decision as to whether an application has reasonable prospects of success does not require the Court to decide whether the application will or does succeed.  What is required is an examination of the proposed grounds at “a reasonably impressionistic level” and the Court should not descend into a full consideration of the arguments for and against each ground.  The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63] (Mortimer J); MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] (Siopis, White and Perry JJ).

11. The parties have each filed written submissions on the five grounds in the draft notice of application, and counsel made detailed submissions.  I will not consider the new sixth ground which was proposed in the course of the hearing.

12. It is unnecessary to say much about the five grounds beyond what was discussed with counsel in the course of the application, and the parties indicated that they did not require further reasons.  In my view grounds 2 and 5 are reasonably arguable and it is appropriate to grant the extension of time.  That does not mean, however, that the applicant is restricted to grounds 2 and 5.  Having been granted an extension of time the applicant should be allowed to advance the case that he and his legal advisers contend is appropriate, and I also grant leave to advance the new ground 6. 

13. The following orders will be made:

    (1)The application for an extension of time within which to lodge an application for review of the Minister’s decision of 19 June 2018 be allowed. 

    (2)The applicant have leave to file an amended application for review within 14 days.

    (3)Costs in the cause.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: 

Dated:       26 April 2019