BZABH v Minister for Immigration
[2011] FMCA 722
•23 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZABH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 722 |
| MIGRATION – Application to extend time within which to commence review application – delay of 6 months and 2 weeks – explanation for delay unsatisfactory – no merit in proposed application. |
| Migration Act 1958 (Cth), s.351, 359A Migration Regulations 1994, cl 808.211 |
| Das v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 Fisher v The Minister for Immigration and Citizenship (2007) 162 FCR 299 MZXLD v Minister for Immigration and Citizenship [2009] HCA Trans 282 Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCA Trans 279 Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCA Trans 364 Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 |
| Applicant: | BZABH (AN INFANT) BY HIS LITIGATION GUARDIAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 520 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 1 September 2011 |
| Date of Last Submission: | 1 September 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 23 September 2011 |
REPRESENTATION
| The Applicant appeared by his litigation guardian. |
| Solicitor advocate for the Respondents: | Ms Slack |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an extension of time filed on 27 June, 2011 be dismissed.
Otherwise the application filed on 27 June, 2011 be dismissed as incompetent.
The applicant’s litigation guardian pay the first respondent’s costs fixed in the sum of $3,673.65.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 520 of 2011
| BZABH (AN INFANT) BY HIS LITIGATION GUARDIAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a child born in Australia in September, 2005.
His parents came to Australia from India in 2002. They have unsuccessfully applied for protection visas and they have exhausted all of their avenues of review. Whilst they were pursuing their options in respect of their protection visa applications, the applicant’s mother gave birth to two children in Australia. The present applicant is the younger of those two children.
On 28 July, 2011 I ordered that the applicant be known by a pseudonym and that his father be appointed his litigation guardian.
By these proceedings, the applicant seeks to extend the time within which he might commence an application for the review of a decision of a migration review tribunal which affirmed an earlier decision of a delegate of the Minister to refuse the applicant a Confirmatory (Residence) (Class AK) visa. The delegate’s decision was made on
21 July, 2010. The application to extend time is made in the same document that would constitute the application for review if time is extended (which by leave was amended on the day of the hearing before me). It sets out the proposed grounds of review of the tribunal’s decision.
The tribunal’s decision was made on 9 December, 2010 and notified to the applicant on 10 December, 2010. This application was commenced on 27 June, 2011, and to the extent that it constitutes the application for review, the applicant concedes that it is 6 months and 2 weeks out of time.
The first respondent opposes the extension of time and points out that an extension of time should only be granted if:
a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court considers it necessary, in the interests of the administration of justice to make the order extending time.
The first respondent accepts that the first requirement just set out has been met by the amended application for review filed by leave before me.
The first respondent submits, and I accept, that in terms of the second requirement, the factors that need to be considered to determine whether it is in the interests of the administration of justice to extend time include, but are not necessarily limited to:
a)the extent of the delay in commencing the application;
b)the reasons for the delay in commencing the application;
c)any prejudice to the respondent if time is extended;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large; and
f)the merits of the proposed substantive application.
The respondent points out the consideration of the interests of the administration of justice involves “consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”: Fisher v The Minister for Immigration and Citizenship (2007) 162 FCR 299 at [35].
The delay is conceded by the applicant to be 6 months and 2 weeks. The respondent says that there is no acceptable explanation for that delay.
On the applicant’s case, the delay came about because:
a)he applied for Ministerial intervention in respect of his application and was awaiting the outcome of that application before commencing these proceedings;
b)he followed his lawyer’s advice and was never told that an application for review could have been filed in the Federal Magistrates Court of Australia and that he was not aware of the time limits for such an application.
The applicant’s parents swear in their affidavit filed on 27 June, 2011 in support of this application that:
“We were of the opinion upon receiving copy of the Migration Review Tribunal decision on or about 15 December, 2010 that the best course of action is to submit an application under s.351 of the Migration Act to the Minister. But that application was declined on 06 June 2011.”
I agree with the applicant’s submissions that an application to the Minister does not disqualify the applicant from pursuing justice in this Court, but there was nothing to prevent the applicant from commencing proceedings in this court before the outcome of the application for ministerial intervention was known and before the expiration of the relevant time limit.
As the Minister points out, the authorities demonstrate that pursuing alternative forms of redress such as Ministerial intervention is generally not seen as a sufficient explanation for delay in commencing review proceedings: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCA Trans 364; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCA Trans 279; MZXLD v Minister for Immigration and Citizenship [2009] HCA Trans 282; Das v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229.
The applicant’s explanation for the delay in commencing these proceedings does not, of itself, satisfy me that the time for commencing the principal proceedings should be extended.
No particular prejudice would be caused to the respondent if the extension was allowed, save that the very clear time limits set out in the Act would have served no particular purpose.
If the application is refused, the applicant argues that he would suffer prejudice because he would be held out of arguing what he says is a reasonable and meritorious application. This factor, then, is closely connected to the merits of the proposed application, to which I will now turn.
The criteria for the grant of subclass 808 visas are set out in schedule 2 of the Migration Regulations 1994. Clause 808.211 requires that an applicant for a subclass 808 visa must hold certain other visas at the time of the relevant visa application. The precise nature of those other visas is not important as the applicant concedes that he did not meet this criterion. He held no other relevant visa at the date of his application for the subclass 808 visa.
I accept the first respondent’s submission that the whole purpose of the applicant’s subclass 808 visa application was to acquire access to the Minister’s discretion to substitute a more favourable decision pursuant to s.351 of the Migration Act 1958. The applicant concedes as much in submissions made on his behalf to both the delegate and the tribunal.
I am not satisfied that the application which the applicant wishes to pursue has any merit. On the day of the hearing before me the applicant sought leave to file an amended application setting out the grounds of his proposed application for review of the tribunal’s decision. The sole ground relied upon by him will be that the decision of the migration review tribunal was affected by jurisdictional error in that the tribunal failed to accord the applicant procedural fairness or natural justice. The particulars of that ground are set out in the application:
“The Tribunal obviously had concerns about the application as it found appropriate to internally refer the application to the Ministerial intervention unit. In this situation, the Tribunal was obliged to give me a further opportunity to address these concerns and further oral hearing and thus to give evidence to wider issues of concern.
The Tribunal was obliged to inform me of the essential and significant issues upon which the review would turn because the Tribunal decision turned on a completely different issue to that considered by DIAC.
I submit that the Tribunal breached s.359A of the Migration Act by not disclosing that it had concerns about my predicament and that it was considering referring the situation to the Honourable Minister."
The grounds of the proposed application and the particulars which inform it, are misconceived because:
a)The decision of the tribunal did not turn upon a completely different issue to that considered by the Minister’s delegate. Both decisions were made on the basis that the applicant could not fulfil the statutory criteria necessary to permit the grant of the visa. The applicant conceded that he could not meet the relevant criterion as set out above.
b)The tribunal did, in its reasons, express some sympathy for the applicant’s position, particularly in paragraphs 21 to 25 of its reasons. The tribunal expressed the view that the applicant’s circumstances gave rise “to referring the matter to the Department”.
c)However, that the tribunal decided to refer the matter to the “Department” had nothing whatsoever to do with the tribunal’s decision on the review application then before it. The review was decided upon the very clear ground I have earlier set out.
d)The tribunal’s concerns about the application and the intention to refer the applicant to the “Department” clearly were not matters that the tribunal considered was the reason, or a part of the reason, for affirming the decision under review before it. Section 359A of the Act is not engaged in the circumstances.
Having regard to the:
a)Length of the delay in instituting these proceedings;
b)The explanation for the delay in instituting these proceedings;
c)The unmeritorious nature of the proposed application
the appropriate order is that the application for the extension of time be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 23 September 2011
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