FEDERAL COURT OF AUSTRALIA
Atta v Minister for Home Affairs [2019] FCA 298
File number: NSD 1956 of 2018 Judge: ROBERTSON J Date of judgment: 6 March 2019 Catchwords: MIGRATION – application for constitutional writs directed to a judge of the Federal Circuit Court of Australia who dismissed an application seeking an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal – whether administrative error by the Department could mean that a visa which did not meet the criteria for it prescribed by the Migration Regulations may be granted Legislation: Migration Act 1958 (Cth) ss 65, 477
Migration Regulations 1994 (Cth) Sch 2 cll 572, 995
Cases cited: Atta v Minister for Immigration and Border Protection [2018] FCA 145
Formosa v Secretary, Department of Social Security [1988] FCA 291; 46 FCR 117
Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; 231 FCR 539
Date of hearing: 6 March 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr PM Knowles Solicitor for the Respondents: Mills Oakley Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs ORDERS
NSD 1956 of 2018 BETWEEN: SELIM MOHAMED MAGDY MAHM ATTA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
6 MARCH 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This application is for constitutional writs to set aside a decision of a judge of the Federal Circuit Court of Australia not to grant an extension of time and to require the Federal Circuit Court judge to decide the application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) according to law.
By s 477(1) of the Migration Act, an application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under s 476 of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. That court may, by order under s 477(2), extend that 35 day period as the court considers appropriate if: an application for that order has been made in writing to that court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The circumstances in the present case are that the…
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- Case
- [2019] FCA 298
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge had made an error in dismissing the applicant's application for an extension of time to file an application for judicial review and whether the Administrative Appeals Tribunal had made an error in finding that the visa criteria had not been satisfied. The court also considered whether the applicant's visa application met the requirements of the Migration Regulations and whether the Department's administrative error could result in the granting of a visa that did not meet the criteria.
The court found that the primary judge had not made an error in dismissing the applicant's application for an extension of time to file an application for judicial review. The court held that the Administrative Appeals Tribunal did not make an error in finding that the visa criteria had not been satisfied. The court noted that the terms of s 65 of the Migration Act were clear and that mistakes on the part of the Department could not have the effect that the applicant held a substantive visa or made an application within 28 days after the day when his last substantive visa ceased to be in effect, when it was common ground that he did not do so. The court held that the applicant's visa application did not meet the criteria prescribed by the Migration Regulations, and therefore the application was dismissed, with costs.
The final orders of the court were that the application be dismissed and that the applicant pay the first respondent's costs, as agreed or assessed. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Minister submitted that the primary judge was correct to find that the proposed ground had no reasonable prospect of success.Consideration The first matter is the status of the applicant’s affidavit affirmed on 17 October 2018. Some of the material in that affidavit appears not to have been before the primary judge. Mr Knowles of counsel, who appeared on behalf of the Minister, accepted that I could take into account the material in that affidavit and indicated that he did not wish to cross-examine the applicant. In relation to the applicant’s factual submissions from the bar table, counsel did not require the applicant to be sworn, and accepted that I could take those submissions into account. Next is the framework for considering the question whether the primary judge has made an error going to jurisdiction. The present proceeding is not an appeal from the primary judge. Although the applicant seeks review of the decision of the primary judge on the ground that it was legally unreasonable it is not necessary, in my opinion, to consider the matter by way of that concept. This is because, in the present case, whether or not the application for judicial review of the decision of the Tribunal had sufficient prospects and in turn whether or not the primary judge erred in refusing the application for an extension of time fundamentally involves the legal correctness or otherwise of the proposition that the criteria for the applicant’s visa had been satisfied. At the relevant time, 8 January 2016, the date of the applicant’s application for the visa, cl 572.211 of the Migration Regulations provided that:(3) An applicant meets the requirements of this subclause if: (a) the applicant is not the holder of a substantive visa; and(b) the last substantive visa held by the applicant was: (i) a student visa; or(ii) a special purpose visa; or (iii)a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or(iv)a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or(v) a Subclass 497 (Graduate—Skilled) visa; and(c)the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:(i)the day when that last substantive visa ceased to be in effect; or(ii)if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:(A)the day when that last substantive visa ceased to be in effect; and(B)the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and(d) the applicant satisfies Schedule 3 criterion 3005. At the relevant time, in 2012, cl 995.511 of Sch 2 to the Migration Regulations provided:995.5 When visa is in effect995.511 Temporary visa permitting the holder:(a)to travel to and enter Australia until a date specified by the Minister for the purpose; and(b) to remain in Australia:(i)if the visa was issued on the basis of the holder satisfying the primary criteria for the grant of the visa — for the duration of the holder’s status as:(A)a diplomatic or consular representative in Australia of a country other than Australia; or(B) an international representative; or(ii)if the visa was issued on the basis of the holder satisfying the secondary criteria for the grant of the visa — for the duration of the status of the person who satisfied the primary criteria as:(A)a diplomatic or consular representative in Australia of a country other than Australia; or(B) an international representative; or(iii)in any case — until an earlier date specified by the Minister.