High Court. Plaintiff missed AAT deadline and thus applied to HCA for judicial review (JR). Could HCA remit matter to FCA or FCCA? Was delay of 6 months in JR application substantial? What is required for the Minister to discharge his/her obligations under s 57(2)? Although s 55(2) provided that Minister was not "required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information", can it be legally unreasonably for Minister to fail to delay?
Some of the questions to the High Court (FCA) were as follows:
Question 1: The Plaintiff missed the deadline for the making of a valid application to the Tribunal and therefore applied to the HCA in its original jurisdiction for judicial review of the delegate's decision to refuse to grant him a protection visa. Could the HCA remit the matter to the Federal Circuit Court or Federal Court?
Question 2: The Plaintiff brought proceedings in the HCA more than 6 months after the deadline stipulated by s 486A of the Migration Act 1958 (Cth). Was the delay "not substantial, and not so significant that exceptional circumstances would need to be present to justify granting the extension"?
Question 3: What is required for the Minister to discharge his or her obligations under s 57(2)?
Question 4: Was commentary added by the Department in its file to photos of the Plaintiff obtained from "open source social media" relevant information within the meaning of s 57(1)?
Question 5: "On 11 June 2020, the plaintiff provided the delegate with "additional documentation as part of [his] protection visa application" which included what was described as an untranslated "[d]ocument related to disinheritance". The plaintiff told the delegate that he would be able to provide an official certified translation of the disinheritance document immediately after he received his next fortnightly salary on 15 June 2020. The next day, 12 June 2020, and without waiting for a translation of the disinheritance document, the delegate made the impugned decision". Grounds 4 and 6 of the judicial review application were summarised as follows: "The delegate failed to assess an integer of the plaintiff's claims, namely that his father had disinherited him in the presence of a magistrate and that "as a result of legal formalities of disinheritance in Pakistan [the plaintiff had] only received one financial transaction from [his] father as part of magistrate orders from Pakistan". The delegate attributed no weight to the disinheritance document the plaintiff submitted, did not refer to the plaintiff's request for further time to provide a translation of the disinheritance document and did not consider the claim". Were grounds 4 and 6 made out?
The HCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.