CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 22 July 2022
• Neutral Citation: [2022] FCAFC 124
• Date: 22 July 2022

Federal Court of Australia

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

Application for extension of time to appeal from:	CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1546
File number:	NSD 22 of 2021
Judgment of:	KATZMANN, CHARLESWORTH AND BURLEY JJ
Date of judgment:	22 July 2022
Catchwords:	MIGRATION — appeal from decision of Federal Court of Australia — where primary judge dismissed application for judicial review of a decision of Administrative Appeals Tribunal not to revoke mandatory visa cancellation decision — where appellant was a member of an ethnic group and expressed generalised fear of harm in country of origin — where country information indicated members of that ethnic group were most at risk of violence — whether a claim to fear harm engaging Australia’s international non‑refoulement obligations clearly emerged from the material before Tribunal — whether Tribunal failed to consider the claim — whether any failure to consider the claim was a material error ; PRACTICE AND PROCEDURE — where notice of appeal not lodged within prescribed time and raises new grounds, whether discretion should be exercised to grant extension of time and whether leave should be granted to raise the new grounds — where only one ground ultimately pressed, whether new ground meritorious — where transcript of Tribunal hearing not before primary judge, whether leave should be granted to permit applicant to tender the transcript as further evidence on appeal
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 27, 37M Migration Act 1958 (Cth) ss 5, 5H, 5J, 5L, 5M, 14, 29, 36, 37M, 47, 65, 189, 196, 197C, 198, 200, 474, 476A, 496, 499, 500, 501, 501CA ; Federal Court Rules 2011 (Cth) r 36.03
Cases cited:	Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897; 383 ALR 194 August v Commissioner of Taxation [2013] FCAFC 85; ATC ¶20–406; 94 ATR 376 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 BQQ15 v Minister for Home Affairs [2019] FCAFC 218 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 CDJ v VAJ (No 1) (1998) 197 CLR 172 CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1546 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 Coulton v Holcombe (1986) 162 CLR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496 Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754; 64 AAR 15; 310 ALR 1 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 13 Kaspune v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme [2007] FCAFC 136; 245 ALR 389 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	160
Date of last submissions:	26 May 2022
Date of hearing:	9 August 2021
Counsel for the Applicant:	Mr M Kenneally
Solicitor for the Applicant:	Mayek Legal
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

		NSD 22 of 2021
BETWEEN:	CKT20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	KATZMANN, CHARLESWORTH AND BURLEY JJ
DATE OF ORDER:	22 JULY 2022

THE COURT ORDERS THAT:

1. The time in which to commence an appeal be extended nunc pro tunc so as to expire on 11 January 2021.

2. The applicant/appellant be granted leave to rely on the first ground specified in the Draft Notice of Appeal forming annexure AC-2 to the affidavit of Ater Madit Apaac Chinmouth dated 10 August 2021, save that the ground shall not refer to Sudan as the appellant’s home country.

3. The appeal be allowed.

4. Order 1 of the orders made by the primary judge on 27 October 2020 in NSD599 of 2020 be set aside and in lieu thereof:

   1. a writ of certiorari issue quashing the decision of the second respondent made on 21 April 2020; and

   2. a writ of mandamus issue compelling the second respondent to determine, according to law, the application for review of the decision of the delegate of the first respondent made on 24 January 2020.

5. In relation to the costs of this proceeding:

   1. The parties confer with a view to reaching an agreement as to the appropriate order.

   2. In the event that no agreement is reached within 28 days of the date of these orders:

      1. by 24 August 2022 the appellant file and serve any evidence and submissions, the latter not exceeding three pages;

      2. by 7 September 2022 the first respondent file and serve any evidence and submissions in response;

      3. by 16 September 2022 the appellant file and serve any submissions...