Cakau v Minister for Home Affairs

[2018] FCCA 2102

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAKAU v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2102

Catchwords:
MIGRATION – Application for extension of time – where application brought eight months after deadline – where applicant raised no reasonable explanation for delay – where criteria in SZMNO are not met – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474(2), 477(1)

Migration Regulations 1994, ss.602.213

Cases cited:

SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

Applicant: PETERO CAKAU

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 802 of 2018

Judgment of: Judge Egan

Hearing date: 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Sydney

Delivered on: 2 August 2018

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondents: Ms Saunders

Solicitors for the Respondents: DLA Piper Australia

THE COURT ORDERS ON A FINAL BASIS:

1. That the Application for an extension of time filed on 26 March 2018 be dismissed.

2. That the Applicant pay the First Respondent's costs fixed in the amount of two thousand, six hundred dollars ($2,600).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 802 of 2018

PETERO CAKAU

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a male citizen of Fiji. He arrived in Australia in January 2016 on a tourist visa. His last substantive visa ceased on 29 April 2016. In March 2017 the applicant filed an application for a medical treatment visa (sub-class 672). On 22 March 2017 the delegate refused to grant the applicant the visa on the basis that he did not satisfy the requirements of PIC3001 and clause 602.213 of the Migration Regulations 1994 (“the Regulations”). The applicant on 11 April 2017 made application to the Administrative Appeals Tribunal (“AAT”) for review of the delegate’s decision.

2. Documentation was subsequently provided in the nature of submissions and other documentation to the AAT.  The applicant appeared before the AAT on 20 June 2017 and made relevant submissions after he had presented evidence to the AAT.  On 22 June 2017 the AAT affirmed the decision under review.  In paragraph 8 of the reasons of the AAT, the applicant was recorded as having conceded that he was unable to meet the criteria for the grant of the visa for which he had applied. 

3. The AAT found that the applicant did not satisfy criterion 3001 and also did not satisfy clause 602.213 of the Regulations, as the applicant’s substantive visa (sub-class 601) had expired on 29 April 2016 with the then application having been made on 30 March 2017.

4. The decision of the AAT is a privative clause decision as provided for in section 474(2) of the Migration Act 1958 (Cth) (“the Act”). As to the applicant’s application filed on 26 March 2018 seeking an extension of time to apply for relief in respect of the decision of the AAT, such application on its face contains four grounds.

5. No amended application was sought to be filed. Further, the applicant has not filed any submissions or outline of argument in support of his application. Pursuant to section 477(1) of the Act, the application for judicial review needed to be filed within thirty-five (35) days of the date of the AAT decision. The date for the filing of any such application for review, therefore, expired on 27 July 2017. The application before the court was therefore filed eight months out of time, something which was acknowledged by the applicant.

6. The court has power pursuant to section 477(2) of the Act to extend time if satisfied that it is necessary in the interests of the due administration of justice for that to be done. The first respondent contends that there is no proper basis for the granting of any such extension of time. The case of SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] confirmed that the criteria which ought to be taken into consideration concerning the exercise of a court’s discretion on applications such as the present include the following:

   a)the length of the delay and the reason for the delay in the filing of the application, including whether there is any acceptable explanation for the delay;

   b)the merits of the substantive application;

   c)any prejudice to the respondents. 

7. It is properly conceded by Ms Saunders on behalf of the first respondent that there is no relevant prejudice consideration applicable.  As to the question of delay, I accept the submission on behalf of the first respondent that a delay of eight (8) months is a substantial delay.  The applicant provided evidence to support the reasons for the delay. However, the applicant has not explained how his circumstances have prevented him, or had prevented him, from filing the application for review within time. 

8. In the absence of any such explanation, the court is unable to find itself in a position where the first of the criteria as set out in SZMNO has been satisfied. 

9. As to the question of the merits of the substantive application, the first respondent submits that the applicant has failed to raise an arguable claim of jurisdictional error, contending that, at best, the applicant’s application for review is an unacceptable attempt at trying to convince the court to undertake an impermissible merits review. 

10. The AAT found that the applicant did not satisfy schedule 3 criterion 3001 which required that the applicant lodge the visa application within twenty-eight (28) days after the expiry of his last substantive visa.  Such submission was based upon the proposition that such criterion was strict and must be complied with.  It is clear that the applicant did not comply with such criterion and, accordingly, it is clear that there has been no jurisdictional error which has been demonstrated in the conduct of the proceedings before the AAT.  In those circumstances, the application for extension of time filed on behalf of the applicant is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  21 August 2018