AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 02 November 2022
• Neutral Citation: [2022] FCAFC 176
• Date: 02 November 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176

Appeal from:	Application for an extension of time to appeal: AZAFF v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1540
File number(s):	SAD 13 of 2021
Judgment of:	COLLIER, FARRELL AND ABRAHAM jJ
Date of judgment:	2 November 2022
Catchwords:	MIGRATION – application for an extension of time in which to appeal decision of the (then) Federal Circuit Court – r 36.05 of the Federal Court Rules 2011 (Cth) –– where the primary Judge dismissed an application for review of a decision of the Immigration Assessment Authority affirming decision not to grant protection visa – where applicant claims the IAA did not consider best interests of child applicant – art 3(1) Convention on Rights of the Child – where applicant claims error of jurisdiction of IAA not to seek further information under s 473DC(3) of the Migration Act 1958 (Cth) - where inadequate reason for delay – application filed after a delay of 218 days - principles for extension of time to file an appeal – application for extension of time dismissed ; PRACTICE AND PROCEDURE - application for leave to rely on new grounds not before the primary Judge – whether adequate reasons provided for failure to raise grounds before primary Judge – degree of prejudice to be faced by the parties - whether proposed new grounds have sufficient merit – leave to rely on new grounds refused
Legislation:	Migration Act 1958 (Cth) ss 5H(1), 36, 65, 91W, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB) Federal Court Rules 2011 (Cth) r 36.03
Cases cited:	AAM15 v Minister for Immigration ad Border Protection [2015] FCA 804; (2015) 231 FCR 452 ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 AZAFF v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1540 BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 BVG17 v BVH17 [2019] FCAFC 17 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107 DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 Han v Minister for Home Affairs [2019] FCA 331 Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 Murad v Assistance Minister for Immigration and Border Protection [2017] FCAFC 73 Nweke v Minister for Immigration and Citizenship [2012] FCA 266 NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Poroa v Minister for Immigration and Border Protection [2017] FCA 826 Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 Raibevu v Minister for Home Affairs at [95]; AAD16 v Minister for Immigration and Boarder Protection [2018] FCA 1433 Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 Singh v Minister for Home Affairs [2020] FCAFC 7 Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 Vaitaiki v Minister for Immigration & Ethnic Affairs [1998] FCA 5 Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	97
Date of hearing:	8 November 2021
Counsel for the Applicants:	Dr S Churches with Ms C Follett
Solicitor for the Applicants:	MSM Legal
Counsel for the First Respondent:	Ms K Hooper with Mr T Ellison
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		SAD 13 of 2021
BETWEEN:	AZAFF First Applicant ; AZAFG Second Applicant ; AAB18 Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	COLLIER, FARRELL AND ABRAHAM jJ
DATE OF ORDER:	2 november 2022

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2. The application for an extension of time filed on 5 February 2021 be dismissed.

3. Leave to rely on the amended draft notice of appeal annexed to the affidavit of Catherine Follett filed on 6 October 2021 be refused.

4. The applicants pay the costs of the first respondent to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

THE COURT:

introduction

1. Before the Court is an application for an extension of time to appeal a decision of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) delivered ex tempore on 3 June 2020 (AZAFF v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1540 (primary decision)). The applicant also seeks leave in the appeal to rely on new arguments not raised before the primary Judge.

2. Before the primary Judge the present applicants sought judicial review of a decision of the second respondent, the Immigration Assessment Authority, (IAA) made on 11 December 2017, affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) of 20 October 2017 to refuse protection visas to the applicants.

3. The amended draft notice of appeal (amended draft notice of appeal) on...