Ali v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2019] FCA 1102

Appeal from:

Ali v Minister for Immigration & Anor [2018] FCCA 3153

File number:

NSD 2136 of 2018

Judge:

NICHOLAS J

Date of judgment:

12 July 2019

Catchwords:

MIGRATION – whether letter notifying appellant of delegate’s decision refusing visa application stated time within which application for review may be made – whether letter complied with requirements of s 66(2)(d)(ii) of Migration Act 1958 (Cth)

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Act 1958 (Cth) ss 66, 347, 338(2), 494B(5), 494C(5)

Migration Regulations 1994 (Cth) Reg 4.10

Cases cited:

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327, (2003) 128 FCR 469

Date of hearing:

12 July 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The applicant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The second submitted save as to costs

ORDERS

NSD 2136 of 2018

BETWEEN:

GOHAR ALI

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	12 JULY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from Transcript)

NICHOLAS J:

1. Before me is an appeal from a judgment of a judge of the Federal Circuit Court of Australia made on 2 November 2018 dismissing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) an application for judicial review on the basis that the application did not disclose any arguable case of jurisdictional error. On 14 May 2019 leave to appeal against the primary judge’s judgment was granted by consent.

2. The appellant is a citizen of Pakistan born in February 1977.  On 12 April 2017 he applied for a Medical Treatment (Visitor) (Class UB) visa (“the Visa”) which he sought for the period 12 April 2017 to 11 July 2017.  On 21 April 2017 a Delegate of the first respondent (“the Minister”)  refused the appellant’s application for the Visa. 

3. The appellant was notified of the Delegate’s decision by letter dated 21 April 2017 which was emailed to the appellant on that date at the email address nominated in his visa application form at which the appellant indicated that the Department could communicate with him.

4. The Delegate’s decision was a “Part-5-reviewable decision”: see s 338(2) of the Migration Act 1958 (Cth) (“the Act”).

5. On 25 May 2017 the appellant applied to the second respondent (“the Tribunal”) for a merits review of the Delegate’s decision. 

6. On 14 June…