Azmerul Haque v Minister for Immigration

[2017] FCCA 2637

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZMERUL HAQUE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2637

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an extension of time under s 477 – application filed outside 35 day period – not necessary in the interests of the administration of justice to extend time – no jurisdictional error identified – application for an extension of time is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AKM AZMERUL HAQUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2345 of 2017

Judgment of: Judge Street

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Sydney

Delivered on: 30 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2345 of 2017

AKM AZMERUL HAQUE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 May 2017, holding that the Tribunal did not have jurisdiction. The applicant is a citizen of Bangladesh and on 7 April 2017 filed an application for review of a delegate’s decision made on 8 October 2013, notifying a refusal of a nomination under an employer-sponsored nomination. The right of application for review to the Tribunal under the statutory regime was a right under the Migration Regulations 1994 (“the Regulations”) and statute for the employer to seek review, not the applicant who is the proposed nominee employee.

2. The Tribunal wrote to the applicant on 27 April 2017, identifying that the application appeared to be invalid and giving the applicant an opportunity to comment in relation to the invalidity both in respect of time and in respect of the failure of the employer to seek review, as opposed to the applicant. The applicant responded to that letter, making assertions of authority that had no substance.

3. The Tribunal in its reasons identified the legislative regime in respect of an application for review, identified the time in respect of which there was no discretion to extend time, found that the application was not made by a relevant person within the Regulations, being the employer. That finding was correct on the material before the Tribunal. The Tribunal also found it had no jurisdiction because the application was not made in time. That finding was also correct on the face of the Tribunal’s decision.

Before this Court

1. The proceedings in this Court were commenced on 23 July 2017 outside the 35 day period, and an extension of time is required under s 477 of the Act.

2. At the commencement of the hearing, the Court explained to the applicant that the extension of time involved three issues. Firstly, the explanation for the delay. Secondly, the consideration of prejudice and there was no prejudice suggested in the present case and thirdly, the merits of the application. The Court explained that the merits involved whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

3. The Court explained to the applicant that if satisfied that the applicant had an adequate explanation for the delay and a reasonable argument that the Tribunal’s decision was unlawful or unfair, that the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied that the applicant had a sufficient explanation for the delay and a sufficiently arguable case, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel of the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted that he should have been given a further opportunity to respond to provide an explanation for his delay. It is apparent from the applicant’s submissions that he fully appreciates the distinction between a discretionary power and a power in which there is no discretion. The Tribunal identified that it had no discretion to extend time.

2. The Tribunal was correct in holding that it had no jurisdiction because the application was not filed within time. The applicant’s assertions that he should have been given an opportunity to provide an explanation are lacking in identifying any relevant legal error by the Tribunal. The applicant also sought to take issue with his submissions from the bar table as to his authority to represent the employer. Nothing said by the applicant identified any arguable case of jurisdictional error by the Tribunal.

3. The grounds in the amended application are almost unintelligible and fail to identify an arguable jurisdictional error. A large amount of material was filed by the applicant and was submitted into evidence subject to relevance. Almost all of the material put on by the applicant, other than that which was before the Tribunal, was irrelevant.

4. The amended application fails to identify any arguable case of jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

5. The applicant’s explanation for the delay in relation to his other potential proceedings and demands on his time, are not a satisfactory explanation for the delay in this Court. As I have identified, the merits are sufficiently lacking for the Court to be satisfied that it is necessary to extend the time in the interests of the administration of justice under s 477 of the Act. The Court finds that it is not necessary in the interests of the administration of justice to extend time in the present circumstances. 

6. Accordingly, the application for an extension of time is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2017