FBW18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: YATES J
• Judgment Date: 15 November 2019
• Neutral Citation: [2019] FCA 1878
• Court: Federal Court
• Date: 15 November 2019

FEDERAL COURT OF AUSTRALIA

FBW18 v Minister for Home Affairs [2019] FCA 1878

File number:	NSD 1835 of 2018
Judge:	YATES J
Date of judgment:	15 November 2019
Catchwords:	MIGRATION – application for extension of time to file an application for judicial review – time extended ; MIGRATION – application for judicial review of decision of Minister not to revoke cancellation of the applicant’s visa – whether Minister erred in considering it unnecessary to determine whether non-refoulement obligations were owed in circumstances where the applicant could make a valid application for a protection visa – whether Minister failed to give proper consideration to the strength, nature and duration of the applicant’s ties to Australia – whether Minister failed to give proper consideration to the impediments the applicant would suffer if removed from Australia – no jurisdictional error demonstrated – application dismissed
Legislation:	Federal Court Rules 2011 (Cth), r 2.25 Migration Act 1958 (Cth), ss 36(2), 65, 195A, 197AB, 197C , 198, 476A(1)(c), 477A(1), 477A(2), 499, 501(3A), 501(6), 501BA(2), 501CA(3), 501CA(4), 501G
Cases cited:	Ali v Minister for Immigration and Border Protection [2018] FCA 650 AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 BKS18 v Minister for Home Affairs [2018] FCA 1731 DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576 DOB18 v Minister for Home Affairs [2018] FCA 1523 DOB18 v Minister for Home Affairs [2019] FCAFC 63 FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 Greene v Assistant Minister for Home Affairs [2018] FCA 919 Omar v Minister for Home Affairs [2019] FCA 279 Minister for Home Affairs v Omar [2019] FCAFC 188 NKWF v Minister for Immigration and Border Protection [2018] FCA 409 Sowa v Minister for Home Affairs [2019] FCAFC 111 Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Date of hearing:	4 March 2019
Date of last submissions:	22 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	110
Counsel for the Applicant:	Mr J Williams (4 March 2019) Ms M Yu (7 August 2019)
Solicitor for the Applicant:	Nikjoo Lawyers
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		NSD 1835 of 2018
BETWEEN:	FBW18 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	YATES J
DATE OF ORDER:	15 NOVEMBER 2019

THE COURT ORDERS THAT:

1. Time be extended to the applicant to file the amended Originating application for review of a migration decision dated 4 March 2019 (Application).

2. The Application be dismissed.

3. The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1. The applicant seeks an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (the Act) within which to bring a proceeding to review a decision (the migration decision) made personally by the respondent, the Minister for Home Affairs (the Minister), under s 501CA(4) of the Act not to revoke a decision under s 501(3A) of the Act (the original decision) to cancel the applicant’s Class XB Subclass 202 Global Special Humanitarian visa.

2. The applicant was given written notice of the migration decision by letter dated 15 August 2018. Section 477A(1) of the Act provides that an application to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(c) of the Act must be made to the Court within 35 days of the date of the decision. The applicant’s solicitor attempted to file an application for review of the decision (the judicial review application or, simply, the application) on the last day of the prescribed period (being 19 September 2018). However, he lodged the application in the Court’s Registry outside the time prescribed by r 2.25 of the Federal Court Rules 2011 (Cth) for filing documents (i.e. after 4.30 pm) with the consequence that, if accepted for filing, the application would be taken to have been filed on the next business day—that is, outside the time prescribed by s 477A(1) of the Act. The Registry rejected the lodgement for this reason. The applicant’s solicitor was informed of this fact on 24 September 2018. On 25 September 2018, he made a written application to the Court to extend time.

3. The Minister accepts that the delay is “not especially long” and that he would not suffer prejudice if time were to be extended. He submits, however, that there has been no satisfactory explanation for the delay and that, more importantly, the applicant has not demonstrated sufficient merit in his draft judicial review application to warrant time being extended.

4. In light of this opposition, I have heard full argument on the merits of the proposed judicial review application. This has enabled me to determine the application to extend time, and the judicial review application itself on the basis of the arguments advanced in support of the application to extend time, without the need for, potentially, two hearings.

5. There are three preliminary matters which I should record.

6. The first is that when this matter was called on for hearing, the applicant sought an adjournment on the basis that there were pending appeals to the Full Court in relation to cases involving the exercise of power under s 501CA(4) of the Act or a cognate power, where the Minister had reasoned that, for the purpose of making his decision, it was not necessary for him to consider whether non-refoulement obligations were owed to the applicant in question because the existence or otherwise of those obligations would be fully considered should the applicant in question apply for a protection visa. The application for an adjournment was opposed by the Minister. I was not persuaded that an adjournment was warranted. However, when refusing the adjournment application, I said that I would consider whether the Court’s judgment should await the determination of those appeals.

7. The appeals in question have now been determined: DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) (18 April 2019); Sowa v Minister for Home Affairs [2019] FCAFC 111 (Sowa) (28 June 2019).

8. The second preliminary matter is that three days after hearing the present application, Mortimer J gave judgment in Omar v Minister for Home Affairs [2019] FCA 279 (Omar), which is also of potential relevance to the present case. On 28 March 2019, an appeal from Mortimer J’s judgment was filed, and subsequently listed for hearing on 2 September 2019.

9. After the Full Court gave judgment in Sowa, I informed the parties that I would give them the opportunity to make further submissions in writing. At that time, I also raised the potential relevance of the appeal in Omar and invited the parties to express a view as to whether their further submissions (and,...