CQL19 v Minister for Immigration - [2019] FCCA 3460

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQL19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3460

Catchwords:
MIGRATION – Substantive application seeking review of decision of the Administrative Appeals Tribunal – whether the Tribunal complied with the relevant statutory and regulatory requirements – proposed grounds of substantive application lack merit.

PRACTICE & PROCEDURE – Application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) (the Act) within which to make a competent substantive application pursuant to s.476 of the Act – no satisfactory or reasonable explanation provided to explain the delay – application refused.

Legislation:

Migration Act 1958 (Cth), ss.189, 414, 415, 418, 425, 425A, 426A, 426B, 441A, 441C, 476, 477, 494C, div. 2 pt. 7
Migration Regulations 1994 (Cth), reg.4.35D

Cases cited:

Applicant:

CQL19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1668 of 2019

Judgment of:

Judge Nicholls

Hearing date:

29 October 2019

Date of Last Submission:

30 October 2019

Delivered at:

Sydney

Delivered on:

2 December 2019

REPRESENTATION

Applicant:

In person

Representative for the Respondents:

Ms K. Morris

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 3 July 2019 is refused.
The applicant pay the first respondent’s costs set in the amount of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1668 of 2019

CQL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENHIP, MIGRANT SERVICES AND MULTICULTURAL…

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: [2019] FCCA 3460
Decision Date: 2 December 2019

CaseChat Overview and Summary

The applicant, CQL19, sought judicial review of a decision made by the Administrative Appeals Tribunal. The core of the dispute concerned whether the Tribunal had adhered to the applicable statutory and regulatory obligations in its decision-making process. However, the court ultimately found that the proposed grounds for the substantive application lacked merit.

The primary legal issue before the court was whether the applicant had provided a satisfactory or reasonable explanation for the significant delay in filing a competent substantive application for review under section 476 of the *Migration Act 1958* (Cth). This required the court to consider an application for an extension of time made pursuant to section 477(2) of the Act.

Judge Nicholls reasoned that the applicant had failed to offer a sufficient justification for the protracted delay in lodging the substantive application. Without a reasonable explanation for the lateness, the court was unable to grant the requested extension of time. Consequently, the application for an extension of time was refused.

Orders