Ban v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1693

MIGRATION – Judicial Review – child migrant visa – whether jurisdictional error – meaning of “reasonable time” and “completing”.

Migration Act 1958, ss.477, 359A
Family Law Act 1975

Sok v Minister for Immigration [2005] FMCA 190
Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473

Applicant: CIPRIAN BAN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 525 of 2006

Judgment of: McInnis FM

Hearing date: 31 October 2006

Delivered at: Melbourne

Delivered on: 17 November 2006

REPRESENTATION

Applicant: No appearance (Mr Ronald Cain, husband of the Applicant’s sponsor appeared)

Counsel for the First Respondent: Ms K. Walker

Solicitors for the First Respondent: Phillips Fox

ORDERS

1. The time for filing the application be extended to 20 April 2006.

2. The application be dismissed.

3. The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 525 of 2006

CIPRIAN BAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application, judicial review is sought of a decision of the Migration Review Tribunal (the Tribunal) which had affirmed the decision of a delegate of the First Respondent to refuse to grant a child (migrant) (class AH) visa to the Applicant (the child visa).

2. The Tribunal decision was handed down on 15 March 2006 and the visa Applicant has indicated in his application to the court that he was notified of the Tribunal decision on the same day. The application was filed in this court on 20 April 2006. Accordingly, it is argued by the First Respondent that the Applicant requires an extension of time pursuant to s.477 of the Migration Act 1958 (the Migration Act).

   
   

   Any application for an extension of time is opposed.  Given the short duration of time whereby the extension is required and noting that there is at least an arguable case, I am satisfied that it is appropriate in the exercise of the court’s discretion to extend the time for the filing of the application to 20 April 2006.

3. The Applicant is a citizen of Romania born on 8 March 1979.  On 9 January 2004, he applied for the child visa which was lodged at the Australian Embassy in Belgrade.  The Applicant was sponsored by his mother, Mrs Elena Cain, who is an Australian permanent resident (the sponsor). 

4. At the hearing before this court it was noted that Mr Ronald Cain, the husband of the sponsor, described himself in various documents as "Authorised Representative of Elena Cain (nee Ban)" and I note in Tribunal documents that he even provided a letterhead with that description. 

5. The court was not made aware of any documents whereby the sponsor had authorised her husband to act for and on her behalf, however I note that in the Court Book the Applicant appears to have…