Dhillon v Minister for Immigration - [2020] FCCA 1998

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1998

Catchwords:
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – minimal delay but substantive application has no merit – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.359, 359B, 359C, 360, 363A, 379A, 379C, 477

Migration Regulations 1994 (Cth), reg.4.17, cls.500.211, 500.212

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600
Cheng v Minister for Immigration & Citizenship (2011) 198 FCR 559
Craig v State of South Australia (1995) 184 CLR 163
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant:

HARMAN SINGH DHILLON

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 115 of 2020

Judgment of:

Judge Kendall

Hearing date:

22 July 2020

Date of Last Submission:

22 July 2020

Delivered at:

Perth

Delivered on:

23 July 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application for an order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 115 of 2020

HARMAN SINGH DHILLON

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India. He arrived in Australia on 1 October 2017 (Court Book (“CB”) 41).
On 30 October 2017, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-15). The applicant indicated that he intended to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.
On 19 December 2017, the applicant was sent a letter inviting him to provide more information in relation to his visa (CB 17-25). The applicant responded on 23 January 2018. He provided information that included confirmation of enrolment documents and a Genuine Temporary Entrant Statement (CB 26-35).
On 14 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 36-43). The delegate found that the applicant did not…

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.

Keep reading for free

Create a free CaseChat account to read Dhillon v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 1998
Decision Date: 23 July 2020

CaseChat Overview and Summary

In *Dhillon v Minister for Immigration*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse an extension of time to lodge a substantive application for review of a student visa refusal. The applicant had lodged the application for an extension of time significantly out of time, although the delay was described as minimal.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by refusing to grant the applicant an extension of time to lodge their substantive application. This required the court to consider the principles governing the exercise of the AAT's discretion to grant extensions of time, particularly in circumstances where the substantive application itself lacked merit.

Justice Kendall found that the AAT had not erred in law. The Tribunal was entitled to consider the merits of the substantive application when deciding whether to grant an extension of time. In this instance, the AAT had correctly identified that the substantive application had no prospect of success, and therefore, it was open to the Tribunal to refuse the extension of time on that basis, notwithstanding the minimal delay. The court affirmed that an extension of time is a discretionary power that should not be exercised in favour of an applicant whose case is demonstrably without merit.

Orders