DKX17 v Federal Circuit Court of Australia

• Jurisdiction: Australia Federal only
• Judge: REEVES, RANGIAH AND BROMWICH JJ
• Judgment Date: 08 February 2019
• Neutral Citation: [2019] FCAFC 10
• Date: 08 February 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10

Appeal from:	DKX17 v Federal Circuit Court of Australia [2018] FCA 515
File number:	NSD 247 of 2018 NSD 246 of 2018 NSD 244 of 2018 NSD 245 of 2018
Judge:	REEVES, RANGIAH AND BROMWICH JJ
Date of judgment:	8 February 2019
Catchwords:	MIGRATION – appeals against primary judge’s dismissal of applications for certiorari and mandamus directed to Federal Circuit Court – where Federal Circuit Court refused adjournment and dismissed applications for extensions of time – whether refusal to grant adjournment was unreasonable – whether appellants were denied procedural fairness – whether Federal Circuit Court overlooked clearly arguable jurisdictional errors – whether misunderstanding a relevant fact was a jurisdictional error – appeals dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 28(1) Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 417, 476, 476A(3)(a), 477(1) and 477(2)
Cases cited:	Allesch v Maunz (2000) 203 CLR 172 Annetts v McCann (1990) 170 CLR 596 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Craig v South Australia (1995) 184 CLR 163 CRI028 v Republic of Nauru (2018) 92 ALJR 568 DKX17 v Minister for Immigration [2017] FCCA 2627 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v The District Court of the Metropolitan District Holden at Sydney (1966) 116 CLR 644 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Sali v SPC Ltd (1993) 67 ALJR 841 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 SZTSU v Federal Circuit Court of Australia [2015] FCA 224 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Date of hearing:	8 August 2018
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	109
Counsel for the Appellants:	Mr D Godwin
NSD 247, 246 and 245 of 2018
Counsel for the Appellants:	Mr D Godwin
Counsel for the Second Respondent:	Mr G Johnson
Solicitor for the Second Respondent:	Minter Ellison
Counsel for First and Third Respondents:	The First and Third Respondents filed submitting notices
NSD 244 of 2018
Counsel for the Appellant:	Mr D Godwin
Counsel for the Third Respondent:	Mr G Johnson
Solicitor for the Third Respondent:	Minter Ellison
Counsel for First and Second Respondents:	The First and Second Respondents filed submitting notices

Table of Corrections
20 March 2019	In the fourth sentence of paragraph 63, the words “Federal Circuit Court Judge” have been replaced with “Tribunal”.

ORDERS

	NSD 247 of 2018
BETWEEN:	DKX17 First Appellant ; DKY17 Second Appellant
AND:	FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; MINISTER FOR IMMIGRATION AND BORDER PROTECTION Second Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent
	NSD 246 of 2018
BETWEEN:	DNF17 Appellant
AND:	FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; MINISTER FOR IMMIGRATION AND BORDER PROTECTION Second Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent

		NSD 244 of 2018
BETWEEN:	DNG17 Appellant
AND:	FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent ; MINISTER FOR IMMIGRATION AND BORDER PROTECTION Third Respondent

	NSD 245 of 2018
BETWEEN:	DNH17 Appellant
AND:	FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; MINISTER FOR IMMIGRATION AND BORDER PROTECTION Second Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent

JUDGES:	REEVES, RANGIAH AND BROMWICH JJ
DATE OF ORDER:	8 FEBRUARY 2019

THE COURT ORDERS THAT:

1. The appeals be dismissed.

2. The appellants pay the costs of the Minister for Immigration and Border Protection as agreed or assessed.

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

REASONS FOR JUDGMENT

REEVES J:

1. I have had the benefit of reading the reasons of Rangiah J in draft form. I agree generally with those reasons and the orders his Honour has proposed.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 8 February 2019

REASONS FOR JUDGMENT

RANGIAH J:

2. There are four related appeals before the Court. The appellants are all members of the same family. Appellants DKX17 and DKY17 are husband and wife respectively, while DNF17 is their elder daughter, DNG17 is their younger daughter and DNH17 is their son.

3. The appeals are against orders of a judge of this Court (the primary judge) dismissing the appellants’ application for writs of certiorari and mandamus directed to the Federal Circuit Court of Australia. A judge of the Federal Circuit Court (the trial judge) had dismissed the appellants’ application for an extension of time to seek judicial review of decisions of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed decisions of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant protection visas to the appellants.

4. I will summarise the decisions of the Tribunal, the trial judge and the primary judge, before considering the...