DENG v Minister for Immigration - [2010] FMCA 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 1023

MIGRATION – Migration Review Tribunal – application for extension of time – explanation for delay – application to Minister under s.351 – Minister conceded jurisdictional error – extension granted.

Migration Act 1958 (Cth), ss.351, 424A, 417, 477

Minister for Immigration v Kamal (2009) 178 FCR 379; (2009) 111 ALD 246; [2009] FCAFC 98
Berenguel v Minister for Immigration (2010) 84 ALJR 251; (2010) 264 ALR 417; [2010] HCA 8
SZGNO v Minister for Immigrationand Multicultural and Indigenous Affairs (2005) FMCA 1433
SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1816
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21
Ex parte Soetanto; Re Minister for Immigration & Multicultural Affairs & Ors S86/1999 [1999] HCATrans 337 (21 September 1999)
Gararth v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 283; (2004) 85 ALD 492
Kaur v Minister for Immigration & Anor (2010) FMCA 634
Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491; [2000] HCA 67
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576
SZFGO V Minister for Immigration and Citizenship [2008] FCA 1478
VQAN v Minister for Immigration and Multicultural and Ethnic Affairs (2003) FCA 1541
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266

Applicant:

LIANG DENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1190 of 2010

Judgment of:

Riley FM

Hearing date:

3 December 2010

Date of Last Submission:

3 December 2010

Delivered at:

Melbourne

Delivered on:

3 December 2010

REPRESENTATION

Counsel for the Applicant:

Cahal Fairfield

Solicitors for the Applicant:

Lily Ong Business Lawyers And Migration Consultants

Counsel for the Respondent:

Melissa Gangemi

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application for an extension of time filed on 26 August 2010 be granted.
The decision of the Migration Review Tribunal handed down on
9 March 2009 in matter number 0802999 be set aside.
The matter be remitted to the Migration Review Tribunal for determination according to law.
Each party bear their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1190 of 2010

LIANG DENG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for an extension of time under s.477 of the Migration Act 1958 (“the Act”) in which to bring an application for judicial review of a decision of the Migration Review Tribunal, and if that application is successful, for writs of certiorari and mandamus in respect of the Tribunal’s decision.
The applicant relies on an affidavit affirmed by…

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: [2010] FMCA 1023
Decision Date: 3 December 2010

CaseChat Overview and Summary

In the case of Deng v Minister for Immigration, the applicant, Deng, sought judicial review of decisions made by the Minister for Immigration and the Migration Review Tribunal (MRT) concerning his visa application. The dispute centred around the rejection of his application for a protection visa, and the subsequent refusal to grant him an extension of time to lodge an application for judicial review. The case was heard by the Federal Court of Australia.

The central legal issues before the court were whether the applicant had a valid ground to seek an extension of time for lodging his application for judicial review and whether the MRT's decision was legally sound. The court had to consider the relevant statutory provisions and case law concerning extensions of time for judicial review applications, as well as the principles of natural justice and procedural fairness.

In its decision, the court found that the applicant had demonstrated sufficient grounds to warrant an extension of time. It was held that the respondent’s delay in providing crucial information to the applicant had prejudiced his ability to lodge the application within the statutory timeframe. Additionally, the court found that the MRT had failed to properly consider the application for an extension of time, leading to an unjust outcome. Consequently, the court granted the application for an extension of time, set aside the MRT's decision, and remitted the matter back to the MRT for reassessment in accordance with the law. The court also ordered that each party bear their own costs.

Orders

Orders of the court

The application for an extension of time filed on 26 August 2010 be granted.

The decision of the Migration Review Tribunal handed down on

9 March 2009 in matter number 0802999 be set aside.

The matter be remitted to the Migration Review Tribunal for determination according to law.

Each party bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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