Haque v Minister for Immigration - [2009] FMCA 705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAQUE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 705

MIGRATION – Whether Migration Review Tribunal had jurisdiction – application made to Migration Review Tribunal out of time.

Migration Act 1958 (Cth), ss.66, 347(1), 347(1)(b)(i), 477, 494B, 494C(4)(a)
Migration Regulations 1994 (Cth), regs. 2.16, 4.10(1)(a)

Jing v Minister for Immigration [2007] FMCA 747
Keo v Minister for Immigration (2008) 222 FLR 53; [2008] FMCA 1502
Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105
Saurabh v Minister for Immigration and Citizenship [2007] FCA 909
Taylor v Minister for Immigration [2005] FMCA 281

Applicant:

AHM AHSANUL HAQUE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 27 of 2009

Judgment of:

Lucev FM

Hearing date:

20 July 2009

Date of Last Submission:

20 July 2009

Delivered at:

Perth

Delivered on:

20 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr S. Thackrah

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant have leave to extend time in which to file his application to this Court to the date of actual filing of the application.
The application to this Court be dismissed.
The applicant pay the first respondent’s costs in the sum of $5,865.00 by 30 November 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 27 of 2009

AHM AHSANUL HAQUE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons edited from transcript)

This is an application made on 10 March 2009 for judicial review of a decision of the Migration Review Tribunal[1] dated 1 September 2008.[2] Although the application was made outside the 35-day time limit under s.477 of the Migration Act 1958 (Cth),[3] the first respondent, the Minister for Immigration and Citizenship,[4] does not oppose orders sought by the applicant, Mr Haque, for extension of time in which to file this application to this Court to the date of filing of the application.
[1] “the Tribunal”.
[2] “Tribunal decision”.
[3] “Migration Act”.
[4] “the Minister”.
That concession is properly made as the Tribunal did not, apparently, physically deliver the Tribunal decision to the applicant, thereby rendering the s.477 time limit ineffective. The Court refers to the judgment of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZKKC.[5] There will there be an order the applicant have leave to extend the time in which to file his application to this court to the time of actual filing.
[5] (2007) 159 FCR 565; [2007] FCAFC 105 (“SZKKC”).
The real issue in these proceedings, however, is whether the Tribunal had jurisdiction to hear the application made to it by the applicant, Mr Haque. The Tribunal concluded that it had no jurisdiction because the application to it was received outside of the mandatory time limit prescribed by s.347(1)(b)(i) of the Migration Act and reg.4.10(1)(a) of the Migration Regulations 1994

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: [2009] FMCA 705
Decision Date: 20 July 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Haque v Minister for Immigration was heard. The applicant, Haque, sought relief against the Minister for Immigration. The dispute centred around the procedural aspects of Haque's application to the Court, particularly the timeliness of his application. The applicant argued that he should be granted an extension to file his application due to exceptional circumstances.

The court was required to decide whether Haque's application was filed within the requisite time frame and whether he could be granted an extension. The legal issues included the interpretation of the relevant statutory provisions governing the timeliness of applications to the Court and the criteria for granting an extension of time. The court considered whether the applicant's circumstances were indeed exceptional and warranted an extension beyond the usual deadlines.

The court examined the circumstances leading to the late filing of Haque's application and found that, while there were some delays, they did not rise to the level of exceptional circumstances. The court concluded that the applicant had not satisfied the threshold for an extension of time. Consequently, the court dismissed Haque's application and ordered him to pay the Minister for Immigration's costs. The costs were quantified at $5,865.00, with a deadline of 30 November 2009 for payment.

Orders

Orders of the court

The applicant have leave to extend time in which to file his application to this Court to the date of actual filing of the application.

The application to this Court be dismissed.

The applicant pay the first respondent’s costs in the sum of $5,865.00 by 30 November 2009.

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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