FZU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2020] HCATrans 101 (5 August 2020)

Last Updated: 6 August 2020

[2020] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S21 of 2020

B e t w e e n -

FZU18

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

FEDERAL COURT OF AUSTRALIA

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 5 AUGUST 2020, AT 9.33 AM

Copyright in the High Court of Australia
HIS HONOUR: In this matter the orders I make are as follows:

1. The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff pay the costs of the first defendant.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

This application for a constitutional or other writ seeks orders in terms substantially identical to those sought in the application in CIC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, with which I have just dealt. To the extent that it seeks a declaration that s 33(4B) of the Federal Court of Australia Act 1976 (Cth) is invalid and leave to file an application for special leave to appeal from a decision of the Federal Court, it is similarly unarguable. To the extent that it seeks a writ of certiorari to quash a decision of the Administrative Appeals Tribunal and a related injunction against the Minister, it is similarly an abuse of process.

To the extent that it seeks a writ of certiorari to quash a decision of the Federal Court of Australia dismissing an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court, the application is similarly bound to fail for want of jurisdictional error. The balance of these reasons is addressed to that aspect of the application.

The plaintiff is a citizen of Bangladesh who arrived in Australia on a work and holiday visa and applied for a protection visa which a delegate of the Minister refused to grant in a decision which was affirmed by the Tribunal. His application to the Federal Circuit Court for judicial review of the Tribunal’s decision was summarily dismissed by Judge Driver under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). His application to the Federal Court for an extension of time and leave to appeal from the decision of Judge Driver was dismissed by Jagot J, her Honour finding that there was no real doubt about the correctness of the Federal Circuit Court’s decision: FZU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 140.

The plaintiff challenges three aspects of her Honour’s decision. First, he argues that her Honour erred in not finding that the Tribunal failed properly to apply s 36(2)(aa) of the Migration Act 1958 (Cth). Second, he argues that her Honour erred by not finding that the Tribunal failed to comply with Ministerial Direction No 56 made under s 499 of the Migration Act. Third, he argues that her Honour erred by not finding that the Tribunal failed to comply with s 424A or s 424AA of the Migration Act by not providing him with information about the date he arrived in Australia and the date he applied for a protection visa.

The challenges are repetitions of the arguments on which the plaintiff relied in his application to the Federal Court, all of which Jagot J properly rejected as without merit. In relation to the first, her Honour correctly found that the Tribunal gave separate and distinct consideration to the plaintiff’s refugee and complementary protection claims. In relation to the second, her Honour correctly found no basis for an inference that the Tribunal failed to comply with the Direction. In relation to the third, her Honour correctly found by reference to the plaintiff’s protection visa application tendered in evidence before her that information about the dates was information given by the plaintiff during the protection visa application process.

The orders I will make are:

1. The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff pay the costs of the first defendant.

The Court will now adjourn.

AT 9.33 AM THE MATTER WAS CONCLUDED