BATTAGLIA v Minister for Immigration

[2006] FMCA 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BATTAGLIA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 638

MIGRATION – Migration Review Tribunal – application made out of time – application dismissed.

Migration Act 1958, s.477
Migration Regulations 1994, reg.1.15A

Applicant: ANGELO BATTAGLIA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 422 of 2006

Judgment of: Riethmuller FM

Hearing date: 26 April 2006

Date of Last Submission: 26 April 2006

Delivered at: Melbourne

Delivered on: 26 April 2006

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Mr B. Wee

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 27 March 2006 be dismissed.

2. There be no orders as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 522 of 2006

ANGELO BATTAGLIA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application seeking judicial review of a decision of the Migration Review Tribunal of 11 July 2005.  The applicant in this matter sets out that he received notification of the decision on 11 July 2005 and applies for review of that decision on the grounds that:

   (1) I wish to bring my wife to Australia as soon as possible;

   (2) I have severe diabetes and I need her help;

   (3) I have tried since 2003 to bring her here.

2. The application was not filed until 27 March 2006.  On 1 December 2005 amendments were made to the Migration Act 1958 (“the Act”) providing for a time limit of 28 days that could be extended for a further 56 days (making a potential total time limit of 84 days) under s.477 of the Act. The transitional provisions provided that that time would commence to run on 1 December 2005 with respect to matters where the decision was handed down prior that date.

3. In this case, the time limit under s.477 expired on 23 February 2006, more than one month before the application was brought. There is no provision for further extensions beyond the 84 days provided for in s.477. In these circumstances, the application is out of time and the court therefore does not have jurisdiction to hear and determine it.

4. In any event, the grounds of the application set out do not on their face demonstrate a proper ground for judicial review of a decision relating to an application for a spouse visa.  The other matters raised by the applicant in oral argument likewise do not appear to provide a proper foundation for an application for judicial review, in that he said that the decision-maker had made an error as to the year of birth of his wife.  However, this appears to have been immaterial to the substantive decision made by the tribunal which was that the tribunal was not satisfied that the applicant and his wife had a spousal relationship as required by regulation 1.15A Migration Regulations 1994.

5. The applicant also outlined evidence that was before the tribunal and produced some bank deposit slips which are referred to by the tribunal in paragraphs 19 and 40 of the decision.  It is not for the court on judicial review to review the fact finding of the tribunal, and in this case, it appears that the balance of the complaints of the applicant related to the factual finding of the tribunal rather than the conduct of the hearing or the application of the law in the sense required to demonstrate a jurisdictional error.

6. In the circumstances, therefore, I dismiss the current application.

7. I now turn to consider the issue of costs.  The first respondent has applied for costs in this matter.  The applicant has effectively been caught by the new time limits.  He was not made aware of the time limits, but rather led to believe that he could bring an application and that there would not be cost consequences.  The applicant is a pensioner and has come today in person to explain the basis of his application as best he is able.  The application has been dealt with on the first date, on a basis that the applicant was not aware of until he reached court today, namely the time limit.  I am satisfied that in the unusual circumstances of this case, it is not appropriate to make a costs order. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Melissa Gangemi

Date:  3 May 2006