CALIN v Minister for Immigration - [2018] FCCA 1651

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALIN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1651

Catchwords:
MIGRATION – Substantive application seeking review of Administrative Appeals Tribunal decision.

MIGRATION – Amended application for the Minister to consider exercising the power under s.351 of the Migration Act 1958 (Cth) – Decision made by Assistant Minister – whether decision falls outside s.474(7) of the Migration Act 1958 (Cth) – s.19 of the Acts Interpretation Act 1901 (Cth) – Court has no jurisdiction – amended application dismissed.

PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – factors considered – whether there are reasonable prospects of success – no reasonable prospects of success – application refused.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.19, 34AAB(5)
Constitution of the Commonwealth of Australia, s.64
Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2)(c)
Migration Act 1958 (Cth), ss.351, 474(7), 476, 477, 501(4)
Migration Regulations 1994 (Cth), regs.1.23, 1.24, cl. 801.221
Ministers ofState Act 1952 (Cth), s.4

Cases cited:

Applicant:

LILIAN CALIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 443 of 2017

Judgment of:

Judge Kendall

Hearing date:

23 April 2018

Date of Last Submission:

14 May 2018

Delivered at:

Perth

Delivered on:

22 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr A. Aristei

Solicitors for the Applicant:

Irwin Legal

Counsel for the Respondents:

Ms S. Oliver

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application to extend time made 17 August 2017 is refused.
The amended application seeking review of a decision made by the Assistant Minster on 25 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 443 of 2017

LILIAN CALIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1651
Decision Date: 22 June 2018

CaseChat Overview and Summary

In this matter before Judge Kendall of the Federal Circuit Court of Australia, the applicant sought judicial review of a decision made by the Assistant Minister for Immigration. The core of the dispute concerned the applicant's amended application, which sought to have the Minister consider exercising the power under s.351 of the *Migration Act 1958* (Cth). The applicant also sought an extension of time to make a competent application to the Court.

The Court was required to determine two primary legal issues. Firstly, whether the decision made by the Assistant Minister fell outside the scope of s.474(7) of the *Migration Act 1958* (Cth), and consequently, whether the Court possessed jurisdiction to review it, considering the operation of s.19 of the *Acts Interpretation Act 1901* (Cth). Secondly, the Court had to assess whether to grant the applicant an extension of time to file a competent application, which involved considering the reasonableness of the delay and the prospects of success of the substantive application.

In relation to jurisdiction, the Court found that the amended application, seeking consideration of the Minister's s.351 power, did not fall within the types of decisions amenable to judicial review under s.474(7). Therefore, the Court concluded it had no jurisdiction to hear the amended application. Regarding the extension of time, the Court applied established principles, including those from *SZSDA v Minister for Immigration & Citizenship* and *MZZLD v Minister for Immigration & Border Protection*, which require an assessment of whether the substantive application has "reasonable prospects of success" and a satisfactory explanation for any delay. The Court was not persuaded that the applicant had provided a reasonable explanation for the delay, noting that ignorance of appeal rights, without more, is generally insufficient. Furthermore, the Court found that the substantive application lacked reasonable prospects of success.

Consequently, the Court dismissed the amended application for want of jurisdiction and refused the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to an applicant’s appeal rights generally, the Fact Sheet relevantly reads as follows:The Minister may substitute a more favourable decisionThe Minister has powers under the Migration Act 1958 to substitute our decision with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations.Review of decisionsApplicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time. It is clear that the Fact Sheet advises that an applicant can apply to this Court for judicial review within 35 days of the date of the Tribunal’s decision. It also advises that the Minister may substitute a more favourable decision. The Court is of the opinion that there is nothing on the face of this document that would suggest that the applicant could only choose between a request for Ministerial intervention or application to this Court. In SZSDA v Minister for Immigration & Citizenship [2012] FCA 131 Foster J observed that:38. In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the … Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. In circumstances where the applicant has not articulated how the Fact Sheet affected her understanding of her appeal rights other than to make a bare assertion of having been misled, the Court is not persuaded that this is a reasonable explanation for the delay. This weighs against granting the extension of time. In relation to whether the applicant’s substantive application has merit the Court is guided by the comments of Murphy J in MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201(“MZZLD”) at [19] :In MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 (at [62]-[63]) Mortimer J said that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. This is long established. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 97, [29] French J described the test as whether the substantive application has a reasonable prospect of success, which was “to say no more than that there is a finite non-trivial probability that it will succeed” based upon a necessarily incomplete consideration of the case. His Honour then noted that “[i]t is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account”.

Ratio Decidendi

Legal Principle Established

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