EKS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1363

Federal Court of Australia

EKS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1363 File number(s): VID 679 of 2020

Judgment of: O'CALLAGHAN J

Date of judgment: 15 November 2022

Catchwords: MIGRATION – application for extension of time in which to seek judicial review – application dismissed

Legislation: Migration Act 1958 (Cth) ss 477A, 477A(1), 501CA, 501CA(4)

Cases cited: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 25

Date of hearing: 28 October 2022

Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Mr K Sypott of the Australian Government Solicitor

ORDERS VID 679 of 2020

BETWEEN: EKS20 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 15 NOVEMBER 2022

THE COURT ORDERS THAT:

1. The name of the respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". 2. The application for extension of time be dismissed, with costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J:

Introduction 1 The applicant seeks an extension of time in which to apply for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the Assistant Minister) not to revoke the mandatory cancellation of the applicant's Refugee (Class XB) (Subclass 200) visa (the visa). 2 The applicant is an Afghan national who arrived in Australia on 22 October 2013 as the holder of the visa. On 22 April 2015, he was convicted of make threat to kill, contravene family violence intervention order (two counts), assault with weapon, contravene family violence final intervention order (two counts) and unlawful assault (two counts). An aggregate sentence of 12 months' imprisonment on all charges was imposed. 3 On 25 June 2015, the visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). 4 On 29 July 2015, the applicant requested revocation of the mandatory cancellation decision. In that request, and in subsequent correspondence with the Department of Immigration and Border Protection, he made representations that he had arrived in Australia as a refugee and that he feared being killed in Afghanistan as a Hazara Shi'a. 5 On 18 January 2017, the Assistant Minister decided not to revoke the mandatory cancellation decision under s 501CA(4) of the Act. 6 The Assistant Minister's decision was sent via registered post to the applicant's authorised recipient (a solicitor at Refugee & Immigration Legal Centre Inc). 7 On 16 October 2020, the applicant filed an application for an extension of time in which to seek judicial review in this Court. He was subsequently represented in this proceeding by Victoria Legal Aid, who filed two affidavits and written submissions on his behalf. 8 On 31 January 2022, I made orders, by consent, the effect of which was that the hearing of the application was held in abeyance pending the determination of, and publication of reasons for judgment in, Plaintiff M1/2021 v Minister for Home Affairs. 9 The High Court published reasons for judgment in that matter on 11 May 2022. See [2022] HCA 17; (2022) 96 ALJR 497. 10 On 8 July 2022, Victoria Legal Aid ceased acting for the applicant.