Ail19 v Minister for Home Affairs - [2019] FCCA 1894

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIL19 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1894

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal not to grant to the applicant a Bridging E (Class WE) visa – applicant needed a 20 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable prospects of success for proposed substantive grounds – application for extension refused.

Legislation:

Migration Act 1958 (Cth), ss.189, 194, 195, 477

Migration Regulations 1994 (Cth)

Cases cited:

Bechara v Bates [2018] FCA 460
BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483

EJB17 v Minister for Immigration and Border Protection [2019] FCA 742

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

Applicant:

AIL19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 185 of 2019

Judgment of:

Judge Dowdy

Hearing date:

21 June 2019

Delivered at:

Sydney

Delivered on:

21 June 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms A. Nanson

Solicitors for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 185 of 2019

AIL19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant is a male citizen of India aged 38 years, having been born on 21 March 1981.
By Application filed in this Court on 30 January 2019, he seeks:
(a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 20 days outside the 35-day time limit prescribed by s.477(1) to make his substantive application to this Court; and
(b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 December 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 28 November 2018 refusing to grant to him a Bridging E (Class WE) visa (WE Bridging visa) under s.73 of the Act.

Background

On 1 June 2009 the Applicant was granted a Student (Class TU) (Subclass 572) visa (Student visa) as the dependent spouse of his wife as primary Student visa holder. On 18 November 2010, his Student visa was cancelled due to a breakdown in his marital relationship which ultimately resulted in a divorce in Australia. He thus became an unlawful non-citizen on 18 November 2010.
On 18 November 2011, he lodged an application for a Protection (Class XA) (Subclass 866) visa (Protection visa) and was granted an…

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: [2019] FCCA 1894
Decision Date: 21 June 2019

CaseChat Overview and Summary

The applicant, Ail19, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a Bridging E (Class WE) visa. The applicant required a 20-day extension of time under section 477(2) of the *Migration Act 1958* (Cth) to lodge their application with the Federal Court.

The central legal issue before the Court was whether the applicant had demonstrated reasonable prospects of success for the substantive grounds of their proposed judicial review application, which was a prerequisite for granting the extension of time sought under section 477(2).

Dowdy J considered the applicant's proposed grounds for judicial review and found that they lacked reasonable prospects of success. Consequently, the Court determined that the threshold requirement for granting an extension of time under section 477(2) had not been met. The application for an extension of time was therefore refused.

Orders