Herath v Minister for Immigration

[2017] FCCA 3068

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERATH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3068

Catchwords:
MIGRATION – Application for judicial review – student visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.347(1)(b)

Migration Regulations 1994, regs.2.55, 4.10

Applicant: MUDIYANSELAGE RUSITHA BANDARA HERATH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 648 of 2016

Judgment of: Judge Riethmuller

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Melbourne

Delivered on: 9 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 30 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 648 of 2016

MUDIYANSELAGE RUSITHA BANDARA HERATH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The Tribunal determined that it did not have jurisdiction to consider a review application from a decision of a delegate refusing to grant a Student (Temporary) (Class TU) visa to the applicant. 

2. The difficulty that faced the applicant in this case was that he filed his review application four days outside of the time limit provided for by reg.4.10 of the Migration Regulations 1994, as contemplated by s.347(1)(b) of the Migration Act 1958.

3. The Tribunal considered the date that the applicant was deemed to be have been notified under reg.2.55, concluding it was 18 December 2015, and confirmed that the last date for filing a review was 8 January 2016.  The Tribunal noted that the application was received on 12 January 2016. 

4. The applicant’s explanation for the delay was as follows:

   I could not communicate with my lawyer properly due to vacation season my lawyer and me were on holidays.  As a result of that I have received the visa refusal notice which was a day before the cut off date and that was the reason why I could not apply for MRT on actual time period: see [6] of the Tribunal’s decision.

5. Neither the Tribunal nor the Court has a discretion to extend the time limit for filing an application for review.  In this case, there is nothing in the material to suggest that there was conduct by a person that would constitute a fraud on the Tribunal.  In the circumstances, the Tribunal was correct in concluding that they did not have jurisdiction in this matter. 

6. In these circumstances, the Tribunal’s decision should not be set aside by the Court. 

   [Further argument ensued]

7. On the question of costs, the applicant has been entirely unsuccessful.  Costs ordinarily follow the event.  In this case it is difficult to see that the applicant even had an arguable case.  The Minister seeks costs in the scale fee of $5,800.  The applicant says that he has no financial resources, which I accept.  However, lack of financial resources alone is not a reason to refuse a successful litigant’s costs in matters of this type.

8. I therefore dismiss the application with costs at scale ($5,800.00).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  8 December 2017