FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXY17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2006 |
| Catchwords: MIGRATION – Extension of time application made pursuant to section 477(2) – extension of time in relation to the application to review the Delegate’s decision and the Tribunal’s decision – binding and significant jurisprudence preventing the Tribunal from extending time for applications to review – no authorities offered by the Applicant’s lawyer to support his contention that the Tribunal has this power – no evidence to support an extension of time being granted to the application for review filed in this Court – responsibility on legal representative properly “to consider” the reasonable prospects of success of an Application – application to extend time refused – personal costs order made against Applicant’s solicitor – consideration of operation of Code of Conduct for migration agents. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 5J(4)(b), 36(1), 36(2A), 36(2)(aa), 48B, 314(2), 412, 412(1)(b), 477(1) – (3), 486E, 486E(1)(b)(i), 486F(1)(a) & (c) |
| Applicant: | AXY17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 13 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 7 September 2017 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Hugh Ford and Associates |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application, filed 6th March 2017, be dismissed.
Pursuant to ss.486E and 486F of the Migration Act 1958, the Applicant’s solicitor pay the First Respondent’s costs in the sum of $3606.00.
Pursuant to s.486F(1)(c) of the Migration Act 1958, within 14 days of the date of these Orders, that is by close of business on 19 September 2017, the Applicant’s solicitor is to repay to the Applicant any costs she has already paid to her solicitor in relation to the current migration litigation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT |
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- Case
- [2017] FCCA 2006
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal had erred in law by finding that it lacked jurisdiction to review the delegate's decision. This turned on whether the applicant's application for review had been lodged within the prescribed time limit, as stipulated by section 412(1)(b) of the *Migration Act 1958* (Cth) and regulation 4.31 of the *Migration Regulations 1994* (Cth).
The Tribunal reasoned that the applicant was notified of the delegate's decision on 10 November 2016, and pursuant to section 494C of the Act, was taken to have been notified on that date. This meant the 28-day period for lodging a review application expired on 8 December 2016. As the application was received by the Tribunal on 9 December 2016, it was out of time, and the Tribunal therefore lacked jurisdiction. The applicant's migration agent contended that an electronic lodgement attempt was made on 7 December 2016, but due to IT system failures, the application was not successfully uploaded until 9 December 2016. The Tribunal had regard to this explanation but noted that the IT work was undertaken two weeks after the alleged problems were identified and that the agent's explanation did not overcome the statutory notification date.
The court ultimately dismissed the application for judicial review, upholding the Tribunal's finding that it lacked jurisdiction. The court found no error of law in the Tribunal's determination that the application for review was lodged outside the statutory time limit.
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