Ali v Minister for Immigration

[2018] FCCA 3153

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3153

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB visa – application lodged out of the prescribed time – whether the Tribunal was correct to find it had no jurisdiction – no arguable case of jurisdictional error made out – application dismissed under r 44.12 of the Federal Circuit Court Rules.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), s.476

Applicant: GOHAR ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2492 of 2017

Judgment of: Judge Street

Hearing date: 2 November 2018

Date of Last Submission: 2 November 2018

Delivered at: Sydney

Delivered on: 2 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr C O'Sullivan
Australian Government Solicitor

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,000.00.

DATE OF ORDER: 2 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2017

GOHAR ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 July 2017 holding that the Tribunal did not have jurisdiction in circumstances where the application for review was not made within the 21 days after the applicant was notified of the decision of the delegate.

2. These proceedings were fixed for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant asserted, when given the opportunity to put submissions, that he could not follow what was being said and he was unwell. The Court indicated to the applicant that it did not accept that explanation, given that he had earlier confirmed to the Court that he understood the nature of the hearing as explained by the Court.

4. The Court sought to clarify with the applicant whether he was seeking an adjournment and the applicant indicated he wished the Court to carry on. The applicant, when invited to do so, put no submissions as to why he said the Tribunal’s decision was unlawful or unfair or in support of the grounds in his application.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal failed to exercise its jurisdiction:

   It was error for the Tribunal to assess the application without allowing applicant to present his arguments.

   2. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.

   3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

2. The three grounds in the application fail to identify any proper basis upon which it could be said there was any arguable case of jurisdictional error by the Tribunal in holding that it did not have jurisdiction. On the face of the material before the Court, the applicant was notified, as the Tribunal held, of the delegate’s decision in accordance with the statutory regime. The grounds in the application fail to identify any arguable case of jurisdictional error.

Conclusion

1. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules. I am satisfied the application fails to disclose any arguable case of jurisdictional error.

2. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018