Wzatc v Minister for Immigration

[2019] FCCA 2448

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZATC v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2448

Catchwords:
MIGRATION – Judicial review application – substantive application heard but application for an extension of time not heard.

PRACTICE AND PROCEDURE – Extension of time – substantive application heard but application for an extension of time not heard.

Legislation:

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

Federal Circuit Court of Australia Act 1999 (Cth), s.75
Federal Circuit Court Rules 2001 (Cth), r.44.05(2)

Applicant: WZATC

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 203 of 2013

Judgment of: Judge Antoni Lucev

Hearing dates: 1, 6 and 29 May and 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Perth

Delivered on: 6 September 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicant: Mr S Walker

Counsel for the First Respondent:

For the Second Respondent:

Mr A Gerrard

Submitting appearance save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The applicant file and serve any amended application to extend time under s.477(2) of the Migration Act, together with any affidavits in support, and accompanied by an outline of submissions, by 16 September 2019.

3. The Minister file and serve any affidavits in opposition to the applicant’s application to extend time, and an outline of submissions, by 23 September 2019.

4. The application to extend time (or if amended, the amended application to extend time) be listed for hearing at 2.00pm on 24 September 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 203 of 2013

WZATC

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In the course of preparing Reasons for Judgment in relation to an application for judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant in relation to a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision and “Tribunal” respectively), affirming a decision of a Delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”), to refuse the applicant a Protection (Class XA) visa (“Protection Visa”), the Court’s attention has been drawn to the fact that the application was not filed within the time prescribed under s.477(1) of the Migration Act, and that without an order of this Court extending time, the application is incompetent under s.477(2) of the Migration Act.

Procedural history

1. The relevant procedural history is as follows:

   a)the application was filed on 6 August 2013;

   b)the application seeks an extension of time (“Extension of Time Application”) on the following grounds:

   1.I do not understand English

   2. I don’t know court procedure

   3. I do not have severvice [sic] of a lawyer

   c)the applicant’s affidavit affirmed 4 August 2013 (“Applicant’s Affidavit”) filed together with the application contains no evidence in support of the Extension of Time Application, and merely attaches (as is required in any event) a copy of the Tribunal Decision;

   d)on 4 September 2013 a Registrar of this Court made orders, including orders for the filing and service of any amended application and any affidavits, and an order as follows:

   7. The application, and the application for an extension of time, be listed for final hearing at 2.15pm on 25 February 2014 before a Judge.

   e)pursuant to consent orders made on 19 February 2014 the hearing on 25 February 2014 was vacated pending the outcome of certain High Court proceedings;

   f)on 26 May 2014 time for compliance with one of the Registrar’s orders of 4 September 2013 was extended, and an order was made by the Court that:

   2. The application, and the application for an extension of time, be re-listed for hearing at 2.15pm on 11 August 2014.

   g)pursuant to consent orders made on 7 August 2014 the hearing on 11 August 2014 was vacated, time for compliance with one of the Registrar’s orders of 4 September 2013 was again extended, and a further order was made by the Court as follows:

   3. The application, and the application for an extension of time be re-listed for a final hearing at 10.15am on 1 May 2015.

   h)on 1 May 2015 the matter was adjourned to 9.00am on 6 May 2015 with leave to the applicant’s Counsel to appear by telephone;

   i)on 6 May 2015 further procedural orders with respect to an amended application and outline of submissions to be filed and served by the applicant, and amended outline of submissions to be filed and served by the Minister were made, and a further order was made by the Court as follows:

   3. The matter be listed for hearing at 3.00pm on 29 May 2015.

   j)on 15 May 2015 an amended application was filed, but it did not amend the grounds of the Extension of Time Application; and

   k)on 29 May and 28 July 2015 the matter was heard, and judgment was reserved, but at no stage was the Extension of Time Application either raised or argued.

Legislative provisions

1. Section 477(1) of the Migration Act provides that the application had to be filed within 35 days of the date of the Tribunal Decision. In this case the date of the Tribunal Decision is 23 April 2013. The application was therefore required to be filed by 28 May 2013, but was not filed until 6 August 2013, and was therefore some 70 days out of time.

2. Section 477(2) of the Migration Act provides that this Court may extend the 35 day limitation period if an application for such an order has been made in writing to this Court specifying why it is necessary in the interests of the administration of justice to make an order extending time, and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. Rule 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) also provides that any application for an extension of time “must be supported by an affidavit including the evidence explaining the delay, and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension. It is not necessary that the affidavit in support under r.44.05(2)(c) of the FCC Rules be filed at the same time as the application.

The application and the Extension of Time Application

1. Neither the applicant nor the Minister acknowledged or addressed the Extension of Time Application (and it was not raised by the Court) in the course of the hearing of the application. There is nothing to indicate why it is that the Extension of Time Application was not raised or heard. The application is presently incompetent by reason of it not being filed within time. It may be made competent if the Extension of Time Application were to be heard and be successful. The difficulty here is that although it might have been anticipated that the Extension of Time Application would be argued, that did not occur.

2. It was only in the preparation of these Reasons for Judgment that the Court has identified that the Extension of Time Application was not heard. That is very unfortunate given that the matter has been substantively heard, and the reserved judgment significantly delayed.

3. In the circumstances, there will be an order that the applicant file and serve any amended Extension of Time Application under s.477(2) of the Migration Act, together with any affidavits in support, and accompanied by an outline of submissions, within 14 days, and that the Minister file and serve any affidavits in opposition to the Extension of Time Application (or if amended, the amended Extension of Time Application), and an outline of submissions, within 28 days, and that the Extension of Time Application (or if amended, the amended Extension of Time Application) be listed for hearing at a time and on a date to be determined before a Judge of the Court.

4. There will also be an order that the name of the Minister be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  6 September 2019