JUNAID v Minister for Immigration

[2017] FCCA 1860

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNAID v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1860

Catchwords:
MIGRATION – Medical treatment visa – application for review not within time limit – the Tribunal held no jurisdiction – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 476, 477, 494C

Migration Regulations 1994 (Cth), reg.4.10

Cases cited:

Spencer v Commonwealth (2010) 241 CLR 118

Applicant: MOHAMMED JUNAID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3568 of 2016

Judgment of: Judge Street

Hearing date: 8 August 2017

Date of Last Submission: 8 August 2017

Delivered at: Sydney

Delivered on: 8 August 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms S He

Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3568 of 2016

MOHAMMED JUNAID

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ, within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 November 2016 finding that the Tribunal did not have jurisdiction to review a decision made by the delegate on 6 September 2016 refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Review application to Tribunal

1. The application for review was lodged with the Tribunal on 4 October 2016. The Tribunal identified the requirements of s 347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (the “Regulations”) which require an application to be made within 21 days of the date the applicant is notified with the decision.

2. Evidence has been read before the Court confirming the notification of the decision of the delegate to the applicant sent to the applicant’s email address on 6 September 2016.

3. The Tribunal, on 25 October 2016, wrote to the applicant advising him that it appeared the application was lodged out of time and advising the applicant to respond by 8 November 2016. The Tribunal’s decision notes that the applicant responded on 31 October 2016 stating that he had misunderstood the time limits. 

4. The Tribunal found in accordance with s 494C of the Act that the applicant was taken to have been notified on 6 September 2016. The Tribunal found that the period within which the review application had to be made ended on 27 September 2016.  The Tribunal found that the application was not received until 4 October 2016 and accordingly, the Tribunal held that it had no jurisdiction to review the decision made by the delegate.

Application to this Court

1. The application in this Court was filed on 15 December 2016, one day outside the 25 day time limit under s 477 of the Act. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether time should be extended under s 477 of Act. The Court explained that there were three issues that arose in that regard. First, the explanation for the delay, and the Court noted that the delay in this case was only one day. Second, whether there was any prejudice to the first respondent, and the Court noted that no prejudice was identified. The third issue concerns the merits of the application and whether the applicant has a sufficient arguable case of jurisdictional error by the Tribunal.

2. The Court explained that it was the third issue that was of significance in the circumstances of the present case in determining whether it was necessary to extend time in the interests of the administration of justice. The Court explained that if satisfied the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that, if not satisfied that the applicant had a sufficiently arguable case on the merits, the Court would dismiss the application under s 477 of the Act. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant and provided the applicant to put submissions the Court, would hear submissions from the solicitor from the first respondent and then give the applicant an opportunity to put submissions in reply.

4. From the bar table, the applicant explained his delay and confirmed that he had read the first respondent’s submissions, but did not put any submissions. When again invited to put submissions as to why the Tribunal’s decision was unlawful or unfair, the applicant was reminded that the Court would not otherwise call upon the first respondent. No submissions were put by the applicant. 

Grounds

1. The grounds in the application are as follows:

   1. That I misunderstood the 21 day time limit for applying for a review to the AA T.

   2. That I did not mean to deliberately file out of time or delay filing my review in the AAT.

   3. That I have no further avenue unless I take the matter on appeal and seek judicial review.

   4. That unless I pursue an appeal, I will be removed and deported by the First Respondent.

   5. That the Tribunal do show compassion and mercy and allow and accept my application.

   6. That I sought a medical treatment visa which was refused by the First Respondent and compassion should be shown to me.

   7. That the Tribunal erred in law in finding it had no jurisdiction.

   8. That the Migration Act 1958 does not expressly prohibit an out of time application. There is no express statutory wording prohibiting an application out of the stipulated time.

   9. That the Tribunal is bound by natural justice and procedural fairness and I should be allowed to file and have my review heard in the Tribunal even if out of the stated time for filing.

   10. That it is unconstitutional for the First Respondent to create a review process that seeks to restrict my right of review in such a manner.

2. In relation to the grounds in the application, ground 1 does not identify any arguable jurisdictional error in the Tribunal’s decision. Ground 2 equally fails to identify any arguable jurisdictional error in relation to the decision of the Tribunal. Ground 3 is in essence, an invitation to review the merits. This Court has no power to review the merits.  Ground 3 fails to make any arguable jurisdictional error.

3. In relation to ground 4, this again is an appeal to the merits and does not identify any arguable jurisdictional error. Ground 5 seeks an exercise in compassion and mercy which is not within the powers conferred on this Court and again, is an invitation to engage in merits review and fails to make out any jurisdictional error. Ground 6 again, is an invitation for the Court to show compassion. There is no power in this Court to decide the applicant’s application on compassionate grounds, and ground 6 does not identify any arguable jurisdictional error. 

4. Ground 7 asserts an error by the Tribunal in finding it had no jurisdiction. For the reasons given by the Tribunal, the Tribunal was correct in holding it had no jurisdiction. Ground 7 fails to identify any arguable jurisdictional error. Ground 8 seeks to disagree with the statutory provisions in respect of the time limit, but does not identify any arguable jurisdictional error.

5. In relation to ground 9, the Tribunal wrote to the applicant giving him an opportunity to respond to the concern in respect of the want of jurisdiction. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in determining that it had no jurisdiction. Ground 9 fails to identify any arguable jurisdictional error.

6. In relation to ground 10, the applicant seeks to take issue with the statutory review process but does not identify any arguable case of jurisdictional error. 

7. The application fails to disclose any arguable jurisdictional error.  I take into account the principles and caution in Spencer v Commonwealth (2010) 241 CLR 118 at [20-25], [51-60]. The merits of the application are lacking. The Court is not satisfied that there are sufficient merits to make it necessary in the interests of the administration of justice, to extend time under s 477 of the Act.

Conclusion

1. The application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017