Dap17 v Minister for Home Affairs - [2019] FCCA 801

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAP17 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 801

Catchwords:
MIGRATION – Judicial review – whether Tribunal had jurisdiction to hear review application – whether review application to Tribunal out of time – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.65, 66, 411, 412, 476, 477, 494B, 494C, Pt.7
Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

Applicant:

DAP17

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 305 of 2018

Judgment of:

Judge Kendall

Hearing date:

29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Perth

Delivered on:

1 April 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr P J Corbould

Second Respondent:

Submitting appearance save as to costs

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS (as made 29 March 2019)

The application be dismissed.
Formal written reasons for judgment be published from chambers at a later date.
The applicant pay the first respondent’s costs fixed in sum of $6,000 by 29 April 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 305 of 2018

DAP17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 29 March 2019 this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court. Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers…

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 801
Decision Date: 1 April 2019

CaseChat Overview and Summary

Dap17 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) concerning the applicant's visa status. The core of the dispute revolved around whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to hear the applicant's review application, specifically whether that application was lodged out of time. The matter came before Kendall J of the Federal Court of Australia.

The primary legal issue before the court was whether the AAT had made a jurisdictional error in accepting the applicant's review application for hearing, given that it was lodged after the prescribed time limit. This required the court to consider the relevant provisions of the *Migration Act 1958* (Cth) and the *Administrative Appeals Tribunal Act 1975* (Cth) concerning the time for lodging applications for review and the circumstances under which an extension of time might be granted.

Kendall J determined that the AAT had indeed made a jurisdictional error. His Honour found that the applicant had failed to provide a satisfactory explanation for the delay in lodging the review application, which was a prerequisite for the AAT to exercise its discretion to grant an extension of time. The court applied the principles established in migration law jurisprudence regarding the necessity for a genuine and substantial reason for an out-of-time application to be considered validly.

Consequently, Kendall J ordered that the decision of the AAT be set aside. The matter was remitted to the AAT for determination according to law, with the AAT to reconsider the application for an extension of time.

Orders