Barton v Minister for Home Affairs

[2019] FCA 120

FEDERAL COURT OF AUSTRALIA

Barton v Minister for Home Affairs [2019] FCA 120

File number:

NSD 2017 of 2018

Judge:

LEE J

Date of judgment:

25 January 2019

Catchwords:

MIGRATION – application for review of a Tribunal decision to affirm a decision of a delegate of the minister not to revoke a cancellation decision – whether application is incompetent and liable to be dismissed pursuant to FCR 31.24(5) – application treated as an application for extension of time – discretion as to whether or not an extension of time should be granted – grounds of the application do not allege any jurisdictional error in the Tribunal decision – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 477A, 501

Federal Court Rules 31.24

Date of hearing:

25 January 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr D McLaren

Solicitor for the First Respondent:

Minter Ellison Lawyers

Counsel for the Respondents:

The Second Respondent entered a submitting notice, save as to costs

ORDERS

NSD 2017 of 2018

BETWEEN:

DAENA BARTON

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LEE J
DATE OF ORDER:	25 JANUARY 2019

THE COURT ORDERS THAT:

1.Leave be granted to treat the application made by the applicant on 29 October 2018 as an application to extend time to bring an application to review the decision of the second respondent.

2.The application to extend time be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Revised from the Transcript

LEE J:

1. By application filed on 29 October 2018, the applicant, Mr Barton, listed the “Minister of Immigration” and the “Federal Court of Australia” as respondents.  The application sought relief in the following terms: “not to revoke cancellation of visa”.  The grounds of the application were identified as follows:

   1.I was a Mannus correctional centre in Wagga Wagga from October 31, 2017 to February 27, 2018 and while I was in the care of Mannus correctional centre I was issued with the notice of my visa cancellation.  On August 29, 2018 I sat before the A.A.T.  And the decision to revoke the cancellation was affirmed to not revoke my visa, which lead’s me to the Federal court.

   2.I have been a resident in Australia since 2002, 16 years, I have been active in the working community since my arrival 2002 and stopped working in 2015 due to work related injuries.  I have 2 beautiful teenage daughter’s that were both born here in Liverpool Hospital and to be honest they need me in there live’s to support them while growing up in these critical stages of there lives.  I get visit’s every week which is critical to my mental well being because visit’s to me is all I have of the outside world and to me family is everything.

2. Unsurprisingly in these circumstances, the first respondent (Minister) submits that the application is incompetent and accordingly is liable to be dismissed under FCR 31.24(5). 

3. Having noted this submission, it seems to me that the more appropriate course would be to treat the material filed by the applicant, including an affidavit which was sworn by him annexing a deficient application for extension of time, as constituting a valid application by which he seeks to extend the time within which he may bring an application for review of the Tribunal decision made on 6 September 2018 to affirm a decision of a delegate of the Minister not to revoke a cancellation decision.

4. The background can be shortly stated.  The applicant is a citizen of New Zealand who held a temporary visa.  He has a lengthy criminal record in respect of offences for which he has been convicted in both Australia and New Zealand. On 12 October 2017, the applicant was convicted of two offences: a contravention of a condition of his Apprehended Violence Order, and a domestic violence offence.  In relation to these 2017 convictions, Mr Barton was sentenced to a term of imprisonment for a period of 12 months with a non-parole period of six months. 

5. As a result of this sentence, Mr Barton’s visa was cancelled pursuant to s 501(3A) of the Migration Act1958 (Cth) (Act) in November 2017.  Shortly after, on 24 November 2017, the applicant submitted a request for revocation of the cancellation decision. As I have already explained, the delegate of the Minister decided not to revoke the original decision. Mr Barton then sought review of the delegate’s decision in the Administrative Appeals Tribunal (Tribunal).

6. As I have indicated above, the application does not make clear which decision the applicant seeks the Court to review. On the assumption he was seeking review of the Tribunal decision, it must be noted that such an application is required to be made within 35 days of the date of the decision: see s 477A(1) of the Act. Mr Barton’s application was made after this time period had elapsed. It is trite that even if I was to leave aside the issues as to competency of the application, my discretion as to whether or not an extension of time should be granted would involve consideration of, among other things, the merits of the proposed application.

7. Needless to say, for substantive relief to be available, it would be necessary for me to reach the conclusion that the Tribunal fell into jurisdictional error.  For me to be satisfied that there was some prospect of that occurring, it would, even on an application of this level of informality, be necessary to identify at least some intelligible basis upon which it might be arguable that jurisdictional error may be found. 

8. Regrettably for Mr Barton, the grounds of the application do not even allege, much less establish, any jurisdictional error in the Tribunal decision.  Hence, the application does not raise any reasonably or sufficiently arguable case of jurisdictional error, and hence the application for extension of time must, in these circumstances, be dismissed

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:       13 February 2019