Chai v Minister for Immigration and Border Protection

[2018] FCA 1298

FEDERAL COURT OF AUSTRALIA

Chai v Minister for Immigration and Border Protection [2018] FCA 1298

Appeal from:	Application for extension of time: Chai v Minister for Immigration & Anor [2018] FCCA 1002
File number:	VID 243 of 2018
Judge:	DAVIES J
Date of judgment:	28 August 2018
Catchwords:	MIGRATION – application for extension of time in which to appeal decision of the Federal Circuit Court of Australia – whether appeal has reasonable prospects of success
Date of hearing:	28 August 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr C Tran
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

VID 243 of 2018

BETWEEN:

SHENGCHAN CHAI

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	28 AUGUST 2018

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 5 March 2018 be dismissed.

2.The applicant pay the first respondent’s costs of the application fixed in the sum of $2500.

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

REASONS FOR JUDGMENT

DAVIES J:

1. The applicant has applied for an extension of time to appeal from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a Skilled (Residence) (Class VB) visa. 

2. The applicant provided an explanation for not filing his appeal within time, which I accept.  However, unless the proposed appeal has some reasonable prospect of success there is no utility in granting an extension of time.  For the reasons that follow I am not satisfied that the proposed appeal has any reasonable prospects of success.

3. Five proposed grounds of appeal have been advanced:  

   Grounds of appeal

   1.The [C]ourt did not exercise procedural fairness to the applicant[‘s] request for the adjourn[ment] of the proceeding. The applicant did not have enough time to prepare for the final hearing.

   2.The [r]espondent’s court book was received late. That allowed the applicant to have no time to prepare for the final hearing.

   3.In the respondent’s court book, did not have any dob-in materials, however my visa was refused by case officer base[d] on the dob-in materials.

   4.The [C]ourt did not conduct a proper review of the [Tribunal’s] decision.

   5.The [C]ourt was too rigid in applying its decision and did not have regard to the individual merits and circumstances of the [a]pplicant[’s] case.

4. As to proposed grounds 1 and 2, during the course of today’s hearing the applicant informed the Court that he had not, in fact, applied for any adjournment of the proceeding before the Federal Circuit Court of Australia.  That is consistent with an affidavit dated 21 August 2018 of a Ms Melinda Jackson from the Australian Government Solicitor, in which she deposed that she has examined the files held by the Australian Government Solicitor in respect of the applicant’s Federal Circuit Court proceeding and could not locate any reference to a request for an adjournment of the hearing before the Federal Circuit Court. 

5. Proposed ground 3 does not arise out of the decision of the Federal Circuit Court as nothing was advanced before the Federal Circuit Court that turned on the “dob-in” materials.  Moreover, the Tribunal’s reasons indicate that the Tribunal, in any event, gave no weight to the “dob-in” materials in reaching its decision: at [41] and [57].

6. Proposed grounds 4 and 5 are not proper grounds of appeal, and to the extent that the applicant addressed what he proposes to advance in support of those grounds the applicant was inviting the Court to engage in impermissible merits review.  The jurisdiction of the Federal Circuit Court on judicial review of the Tribunal’s decision is confined to determining whether there was jurisdictional error in the decision of the Tribunal.  The Federal Circuit Court does not engage in a fresh investigation or fact finding of its own, and there was no error by the Federal Circuit Court in not undertaking its own investigations or re-examining the evidence for itself.

7. Accordingly, the application for an extension of time is refused.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:       4 September 2018