Aciek v Minister for Immigration - [2017] FCCA 3237

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACIEK v MINISTER FOR IMMIGRATION

[2017] FCCA 3237

Catchwords:

MIGRATION – Application to extend time for applying for judicial review of the sending of a notice purportedly pursuant to s.501CA(3) of the Migration Act 1958 (Cth) (Act) in relation to a decision made under s.501(3A) of the Act to cancel the applicant’s visa – whether applicant gave reasonable explanation for delay – whether it was reasonably arguable that the respondent owed the applicant a duty to accord the applicant procedural fairness when sending the purported notice – whether it was reasonably arguable that the purported sending of the notice was invalid because the tasks prescribed by s.501CA(3) of the Act could only be performed by the respondent personally or by a person to whom the power to give the notice had been delegated under s.496 of the Act, and the notice was not given by the respondent personally or by a person to whom the power to give the notice had been delegated – whether it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act – order extending time made – person who purported to give notice did not have power to do so – relief granted.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2), 496, 497, 501A(2), 501BA, 501(3A), 501(6), 501(6)(a), 501(7), 501CA, 501CA(2), 501CA(3), 501CA(4), 501F, 501G

Migration Regulations 1994 (Cth), reg.2.52(2)(b), 2.55

Cases cited:

Annetts v McCann (1990) 170 CLR 596

Carltona Ltd v Commissioners of Works & Ors [1943] 2 All ER 560
CPCF v Minister for Immigration and Border Protection [2015] HCA 1

Dainford Ltd v Smith (1985) 155 CLR 342
Faalogo v Minister for Immigration [2016] FCCA 2556

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
Racecourse Co-operative Sugar Association Ltd v Attorney of the State of Queensland (1979) 142 CLR 460
Re Patterson [2001] HCA 51; (2001) 207 CLR 391
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director-General of Social Services (1979) 2 ALD 86
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant:

ACIEK AKEC ACIEK

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2837 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

5 December 2017

Date of Last Submission:

5 December 2017

Delivered at:

Sydney

Delivered on:

20 December 2017

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner of Turner Coulson Immigration Lawyers

Solicitors for the Respondent:

Ms M Donald of Sparke Helmore

ORDER

Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the time for the applicant making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Court’s jurisdiction under s.476 of the Act is extended to 13 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 3237
Decision Date: 20 December 2017

CaseChat Overview and Summary

Aciek (the applicant) sought an extension of time to apply for judicial review of a notice sent by the Minister for Immigration (the respondent) under s 501CA(3) of the *Migration Act 1958* (Cth). This notice related to a decision made under s 501(3A) of the Act to cancel the applicant's visa. The application was heard by Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the applicant had provided a reasonable explanation for the delay in filing the application for judicial review. Further, the court considered whether it was reasonably arguable that the respondent owed the applicant a duty to accord procedural fairness when sending the notice. A key issue was whether the notice was invalid because the tasks prescribed by s 501CA(3) could only be performed by the respondent personally or by a delegate under s 496 of the Act, and the notice was not issued by either. Finally, the court had to assess whether an order extending time was necessary in the interests of the administration of justice under s 477(2) of the Act.

Judge Manousaridis found that an extension of time should be granted. The court reasoned that there was a reasonably arguable case that the person who purported to give the notice under s 501CA(3) did not have the power to do so, as the tasks prescribed by that section were not performed by the respondent personally or by a valid delegate. This raised a significant question about the validity of the notice itself. Given this arguable jurisdictional error, the court concluded that it was necessary in the interests of the administration of justice to extend the time for the applicant to seek judicial review. The court ultimately made an order extending time.

Orders