BXT17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 12 February 2021
• Neutral Citation: [2021] FCAFC 9
• Date: 12 February 2021
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

BXT17 v Minister for Home Affairs [2021] FCAFC 9

Appeal from:	BXT17 v Minister for Immigration & Anor [2019] FCCA 1459
File number:	VID 692 of 2019
Judges:	MARKOVIC, O'CALLAGHAN AND ANASTASSIOU JJ
Date of judgment:	12 February 2021
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where the Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa – whether the designation of a person as an “unauthorised maritime arrival” pursuant to s 5AA of the Migration Act 1958 (Cth) (Act) can come to an end – whether the Authority assessed new information in accordance with s 473DD of the Act – whether non-compliance was material – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 5, 5AA, 5J, 46A, 78, 189, 198AD, 198AHA, 198AJ, 336F, 473DD, 494AA, Subdiv AJ Migration Amendment (Detention Arrangements) Act 2005 (Cth) Migration Amendment (Excision from Migration Zone) Amendment Act 2001 (Cth) Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) Migration Amendment (Protection and Other Measures) Act 2015 (Cth) Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth)
Cases cited:	AJZ17 v Minister for Home Affairs [2019] FCA 1485 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 CLM18 v Minister for Home Affairs (2019) 272 FCR 639 Coulton v Holcombe (1986) 162 CLR 1 DBE17 v Commonwealth of Australia [2018] FCA 1307; (2018) 361 ALR 423 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing:	5 June 2020 and 6 July 2020
Date of last submissions:	12 November 2020 (Appellant) 19 November 2020 (First Respondent)
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	207
Counsel for the Appellant:	Mr M Albert
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr S Lloyd SC and Mr A Yuile
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 692 of 2019
BETWEEN:	BXT17 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGES:	MARKOVIC, O’CALLAGHAN AND ANASTASSIOU JJ
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

1. Leave be granted to the appellant to raise ground 1 of the further amended notice of appeal for the first time on appeal.

2. The appeal be dismissed.

3. The appellant’s amended interlocutory application filed on 4 June 2020 (Interlocutory Application) be otherwise dismissed.

4. The appellant pay the first respondent’s costs of the Interlocutory Application and the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Authority): see BXT17 v Minister for Immigration & Anor [2019] FCCA 1459 (BXT17). The Authority had affirmed a decision made by a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

2 By amended interlocutory application filed on 4 June 2020, the appellant seeks leave to rely on a further amended notice of appeal in which he seeks to raise four grounds of appeal set out at [19] below. Grounds 1, 3 and 4 were not raised in the Federal Circuit Court and, accordingly, it is in relation to those grounds only that a grant of leave is required. The Minister does not oppose leave being granted to the appellant to rely on ground 1 but opposes a grant of leave in relation to grounds 3 and 4.

3 For the reasons that follow, we would grant leave to the appellant to raise ground 1 of the further amended notice of appeal for the first time on appeal, decline to grant leave to the appellant to rely on grounds 3 and 4 and otherwise dismiss the appeal. Our reasons for reaching those conclusions follow.

BACKGROUND

4 The appellant is a Lebanese national who arrived in Australia by boat at Christmas Island on 25 April 2013.

5 On 28 October 2016 the appellant applied for a SHEV. His claims are set out in a statement annexed to his application. In summary, they are:

(1) the appellant suffers from a significant physical disability, presumed to be congenital nystagmus (also referred to as idiopathic infantile nystagmus) and from mental illness. He has been under a compulsory treatment plan under the Mental Health Act 2007 (NSW)...