BIL17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 31 January 2019
• Neutral Citation: [2019] FCAFC 6
• Date: 31 January 2019

FEDERAL COURT OF AUSTRALIA

BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6

Application for extension of time to appeal from:	BIL17 v Minister for Immigration and Border Protection [2017] FCCA 3092
File number:	NSD 728 of 2018
Judges:	GRIFFITHS, GLEESON AND COLVIN JJ
Date of judgment:	31 January 2019
Catchwords:	MIGRATION – application for extension of time to appeal from judgment of Federal Circuit Court of Australia dismissing application for review of Administrative Appeals Tribunal decision to deny applicants protection visas – Fijian Christian separatists – where Tribunal failed to give genuine consideration to aspect of claim, failing to engage actively and intellectually with relevant country information – application granted, appeal allowed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 7, 10B Federal Court Rules 2011 rr 1.65, 36.03 Migration Act 1958 (Cth) s 36
Cases cited:	Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 BUD17 v Minister for Home Affairs [2018] FCAFC 140 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1
Date of hearing:	29 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	70
Counsel for the First, Second, Third and Fourth Applicants:	Mr N Poynder
Counsel for the First Respondent:	Mr HPT Bevan

ORDERS

		NSD 728 of 2018
BETWEEN:	BIL17 First Applicant ; BJQ17 Second Applicant ; BJR17 Third Applicant ; BJS17 Fourth Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	GRIFFITHS, GLEESON AND COLVIN JJ
DATE OF ORDER:	31 January 2019

THE COURT ORDERS THAT:

1. Pursuant to r 36.05 of the Federal Court Rules 2011, the time for filing a notice of appeal be extended to 4.00 pm on 8 February 2019.

2. The notice of appeal filed pursuant to order 1 above state the following single ground of appeal:

The Tribunal constructively failed to exercise its jurisdiction because it acted on outdated country information and failed to consider current country information which was to the effect that it was possible that any person returning to Fiji who was accused or suspected of being involved in encouraging sedition (which in context was directed at Christian separatists) would be tracked down, arrested and prosecuted, thereby failing to engage with the true nature of the claim by considering in a realistic way the relevant evidence.

3. The appeal be allowed.

4. The orders of the Federal Circuit Court of Australia dated 8 December 2017, dismissing the application with costs, be set aside.

5. A writ of certiorari be issued quashing the decision of the second respondent dated 10 March 2017.

6. The second respondent is directed to reconsider according to law the application for review filed 29 March 2017.

7. The first respondent pay the applicants’/appellants’ costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1. The applicants (“appellants”) are four members of a family from Fiji comprising father, mother and two children. The father and mother hold Christian separatist views and are active members of two organisations of mainly ethnic Fijians established by Ms Mereoni (Oni) Kirwin, the Pacific Indigenous Samaritan Association Inc (“PISAI”) and the Fiji Native Government in Exile (“FNGE”). Ms Kirwin launched the FNGE in January 2013 in Canberra. FNGE is said to be an organisation of native Fijians, who are committed and practising Christians and who support two breakaway Christian states in western Viti Levu on the main island of Fiji. PISAI is a charitable organisation, which does charitable works to assist other Pacific indigenous communities, especially Australian Aboriginal communities.

2. The father came to Australia in May 2014 and the rest of the family came later. On 29 August 2014 the family made an application for protection visas. The father’s application described the basis for the claim to protection in terms that included concern for their safety if they were to return to Fiji because the father had been identified by the brother of Prime Minister Bainimarama at a protest held in Sydney against the government of Fiji. He said that it was well known that ‘Bainimarama is someone who carries grudges and takes revenge against those whom have challenged him, using the might of the Fiji Military Forces against unarmed Fiji civilians’. He also referred to footage being broadcast widely into Fiji. The claims were described in greater detail in a letter of support provided by Ms Kirwin to the Administrative Appeals Tribunal when the appellants sought review of the refusal of their visa applications.

3. On 10 March 2017, the Tribunal affirmed the decision to refuse the protection visa applications. An application for review in the Federal Circuit Court was unsuccessful: BIL17 v Minister for Immigration and Border Protection [2017] FCCA 3092. The appellants now wish to bring an appeal against the decision of the primary judge.

4. The appellants require an extension of time to file a notice of appeal. By r 36.03(a)(i) of the Federal Court Rules 2011, a notice of appeal is to be filed and served within 21 days after the date when the judgment appealed from was pronounced. The Court may extend time under r 36.05. In light of the exclusionary effect of r 1.61(5) applying to the time between 24 December and 14 January, the 21 day period expired on 22 January 2018. The current application for an extension of time was filed on 8 May 2018. This is a delay of 3 months and 16 days.

5. The Minister submitted that the application for an extension of time should be refused and that, if time is extended, the appeal should be dismissed.

Summary

6. For the following reasons, there should be an extension of time to bring the appeal confined to the first ground which should be upheld. The other grounds lack merit. The decision of the primary judge should be set aside and the matter should be remitted to the Tribunal for determination according to law. As no reason was advanced as to why costs should not follow the event, the Minister should be ordered to pay the costs before the primary judge and on appeal.

Grounds of appeal

7. As developed during the course of oral submissions, the appellants advanced three grounds in support of the appeal.

8. First, the Tribunal constructively failed to exercise its jurisdiction because it acted...