FMK18 v Minister for Home Affairs - [2018] FCCA 3758

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMK18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3758

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction due to late lodgement of the review application – refusal of an extension of time for a show cause application – the Tribunal had no discretion to extend the time limit on review applications.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 36, 477, 494C

Migration Regulations 1994 (Cth)

Cases cited:

Beni v Minister for Immigration [2018] FCAFC 228

Brown v Minister for Home Affairs [2018] FCA 1643
Brown v Minister for Home Affairs (No.2) [2018] FCA 1787
EXU17 v Minister for Immigration [2018] FCA 1675
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344
SZNJG v Minister for Immigration [2018] FCA 334
SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

Applicant:

FMK18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2926 of 2018

Judgment of:

Judge Driver

Hearing date:

17 December 2018

Delivered at:

Sydney

Delivered on:

17 December 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2926 of 2018

FMK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 May 2018. The Tribunal found that it did not have jurisdiction in the matter because the merits review application was lodged out of time.

The present proceeding

The judicial review application to this Court was filed on 18 October 2018, having been lodged the previous day. That application was filed some 114 days outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act).
The applicant seeks an extension of time under s.477(2). The application is supported by a short affidavit filed with it which annexes the decision of the Tribunal. I also have before me as evidence the court book filed on 12 November 2018. Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from the applicant this morning. He confirmed what is said in the application: that there was a delay in him obtaining the Tribunal decision. That is his explanation for the delay in coming to court.
The court book confirms[1] that the Tribunal decision was sent to the applicant at his nominated email address on 22 May 2018. The…

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: [2018] FCCA 3758
Decision Date: 17 December 2018

CaseChat Overview and Summary

FMK18 sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to consider FMK18's application for review. The AAT's determination was based on the late lodgement of FMK18's review application and its refusal to grant an extension of time for a related show cause application. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT possessed the discretion to extend the time limit for lodging an application for review under the relevant migration legislation, notwithstanding the express timeframes stipulated. This question hinged on the interpretation of the statutory provisions governing the AAT's review powers in migration matters.

Judge Driver reasoned that the Migration Act 1958 (Cth) and associated regulations clearly prescribed strict time limits for the lodgement of review applications. The Court found that the AAT did not have an unfettered discretion to extend these time limits in the absence of specific statutory authorisation. The legislative framework indicated that the timeframes were mandatory, and failure to comply meant the AAT lacked jurisdiction to proceed with the review. Consequently, the AAT's decision to refuse the extension of time and consequently find it lacked jurisdiction was upheld.

Orders