BDA16 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 07 June 2019
• Neutral Citation: [2019] FCA 874
• Court: Federal Court
• Date: 07 June 2019

FEDERAL COURT OF AUSTRALIA

BDA16 v Minister for Home Affairs [2019] FCA 874

Review of:	BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370
File number(s):	NSD 171 of 2019
Judge(s):	FARRELL J
Date of judgment:	7 June 2019
Catchwords:	MIGRATION – judicial review application under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Federal Circuit Court of Australia to refuse an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to make an application under s 476 of the Migration Act seeking review of a decision of the Refugee Review Tribunal – where Tribunal affirmed a decision of the Minister’s delegate to refuse to grant protection visas to the applicants – where applicants accepted legal advice to request Ministerial intervention under s 417 of the Migration Act instead of judicial review of the Tribunal’s decision – where Minister took 31 months to make a decision – where the request for Ministerial intervention was not successful – where application to Federal Circuit Court was 33 months out of time – whether Federal Circuit Court failed to appreciate or deal with the applicants’ claim that the time taken by the Minister to make a decision on their request for Ministerial intervention under s 417 was blameworthy and that it was part of the reason for claiming an acceptable reason for the delay – application dismissed
Legislation:	Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 417, 476A, 477
Cases cited:	ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370 BDA16 v Minister for Home Affairs [2019] FCA 85 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Daniel v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 21; 205 ALR 198 FEZ17 v Minister for Home Affairs [2019] FCAFC 76 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; 212 ALR 520 Mitco DB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712 Re Commonwealth; Ex Parte Marks [2000] HCA 67; 177 ALR 491 SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478 SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456
Date of hearing:	3 June 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	40
Solicitor for the Applicants:	Mr R Turner of Turner Coulson Immigration Lawyers
Solicitor for the First Respondent:	Mr J Hutton of Australian Government Solicitor
Counsel for the Second and Third Respondents:	The Second and Third Respondents submitted to any order of the Court, save as to costs

ORDERS

		NSD 171 of 2019
BETWEEN:	BDA16 First Applicant ; BDB16 Second Applicant ; BDC16 (and others named in the Schedule) Third Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent ; FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	7 JUNE 2019

THE COURT ORDERS THAT:

1. The applicants have leave to file a further amended originating application to include a prayer for relief in the nature of a writ of mandamus.

2. The further amended application is dismissed.

3. The first and second applicants must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J

Introduction

1. This application is made under s 39B of the Judiciary Act 1903 (Cth). The applicants seek judicial review of a decision of the Federal Circuit Court of Australia delivered on 30 August 2018: see BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370. The Federal Circuit Court dismissed an application brought under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to bring an application for judicial review of a decision of the Refugee Review Tribunal.

2. The first applicant (father) and second applicant (mother) are married. The third to fifth applicants are their children. All are Jordanian nationals. They arrived in Australia on 19 September 2011 as the holders of visitor visas. They applied for protection visas on 28 October 2011. The father made claims to fear harm. The other applicants applied as members of his family unit. Although the mother also holds Iraqi citizenship, the Minister exercised his discretion under s 91Q of the Migration Act to permit her to make a protection visa application.

3. A delegate of the Minister responsible for administering the Migration Act refused to grant the visas to the applicants on 26 July 2012.

4. The following chronology is relevant on this application and the factual matters set out below are recorded in the Federal Circuit Court’s reasons for judgment. The Court does not understand them to be disputed:

1. The Tribunal affirmed the delegate’s decision on 19 August 2013.

2. It is the mother’s evidence that the applicants acted on legal advice obtained around 23 August 2013 that there was a “good chance” of success of a request for Ministerial intervention under s 417 of the Migration Act and it was cheaper than pursuing an application for judicial review of the Tribunal’s decision by the Federal Circuit Court. That advice was accepted.

3. On 10 September 2013, the applicants requested Ministerial intervention under s 417 of the Migration Act.

4. The applicants were advised that the request for Ministerial intervention had not been successful on 31 March 2016.

5. The applicants applied for an extension of time to seek judicial review of the Tribunal’s decision by the Federal Circuit Court under s 477(2) of the Migration Act on 12 May 2016 and that application was dismissed with costs on 30 August 2018.

5. On 13 September 2018, the applicants lodged in this Court an application for leave to appeal from the Federal Circuit Court’s decision. On 6 February 2019, Griffiths J upheld the Minister’s objection to the competency of that application and dismissed the application because it fell foul of the jurisdictional bar in s 476A(3)(a) of the Migration Act on appeals to this Court from decisions made by the Federal Circuit Court under s 477(2) of the Migration Act: see BDA16 v Minister for Home Affairs [2019] FCA 85.

Reasons of the Federal Circuit Court

6. At J[8]-[11], the Federal Circuit Court set out the principles to be applied in determining an application for extension of time under s 477(2) of the Migration Act as follows:

8. The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive....