BKS18 v Minister for Home Affairs [2018] FCA 1731

BKS18 v Minister for Home Affairs [2018] FCA 1731

The extension of time was not refused merely because of delay, but the proposed ground of review lacked merit. The Assistant Minister considered the applicant's claimed risk of harm in South Sudan and his non-refoulement representations, but was entitled to decide that it was unnecessary to determine non-refoulement obligations for the s 501CA(4) decision because the applicant could make a valid protection visa application in which those obligations would be considered, particularly having regard to Direction 75. Sections 197C and 198 had not yet reached the point of operation, and s 501CA(4) did not require the Assistant Minister to prognosticate about future protection visa...

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Migration Judicial Review; Application for Extension of Time to Apply for Judicial Review of Non Revocation of Mandatory Visa Cancellation / Application for Extension of Time Heard and Dismissed
Outcome
Application dismissed with costs.
Legal Topics
['mandatory Visa Cancellation on Character Grounds' 'revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'jurisdictional Error' 'procedural Fairness' 'non Refoulement Obligations' 'protection Visa Decision Making' 'direction 75' 'removal of Unlawful Non Citizens Under Ss 197 C and 198']
['migration Law' 'administrative Law' 'human Rights'] ['mandatory Visa Cancellation on Character Grounds' 'revocation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'jurisdictional Error' 'procedural Fairness' 'non Refoulement Obligations' 'protection Visa Decision Making' 'direction 75' 'removal of Unlawful Non Citizens Under Ss 197 C and 198']

Case Brief

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Procedural Posture

Migration Judicial Review; Application for Extension of Time to Apply for Judicial Review of Non Revocation of Mandatory Visa Cancellation / Application for Extension of Time Heard and Dismissed

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to seek judicial review despite delay.' 'Whether the Assistant Minister denied procedural fairness, constructively failed to exercise jurisdiction, or failed to complete the statutory task by not determining whether non-refoulement obligations were owed.' 'Whether the Assistant Minister misunderstood the legal consequences of non-revocation, including the operation of ss 197C and 198 of the Migration Act 1958 (Cth).' 'Whether Direction 75 and a future protection visa application meant non-refoulement obligations could be considered later.' 'Whether the different nature of decisions under s 65 and s 501CA(4) produced practical injustice.']

Ratio Decidendi

The extension of time was not refused merely because of delay, but the proposed ground of review lacked merit. The Assistant Minister considered the applicant's claimed risk of harm in South Sudan and his non-refoulement representations, but was entitled to decide that it was unnecessary to determine non-refoulement obligations for the s 501CA(4) decision because the applicant could make a valid protection visa application in which those obligations would be considered, particularly having regard to Direction 75. Sections 197C and 198 had not yet reached the point of operation, and s 501CA(4) did not require the Assistant Minister to prognosticate about future protection visa...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs, to be assessed if not agreed."]