Kaur v Minister for Immigration - [2017] FCCA 1962

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1962

Catchwords:
MIGRATION – Substantive application seeking review of Administrative Appeals Tribunal decision – Tribunal affirmed decision to refuse the applicants Temporary Business Entry (Class UC) visas.

PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – consideration of factors relevant to an extension of time – whether there is an adequate explanation for the delay – whether there are reasonable prospects of success – no reasonable prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth), ss.351, 360, 476, 477

Migration Regulations 1994 (Cth), sch.2, cl.457.223

Cases cited:

SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442
SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456
MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316
MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478
Ahmed v Minister for Immigration and Border Protection[2016] FCA 751
SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158 Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344

First Applicant:

RAJINDER KAUR

Second Applicant:

GURKIRAT KAUR

Third Applicant:

KULVIR SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1965 of 2016

Judgment of:

Judge Nicholls

Hearing dates:

17 May 2017, 22 June 2017 and 1 August 2017

Date of Last Submission:

1 August 2017

Delivered at:

Sydney

Delivered on:

18 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms P Hart

Solicitors for the Respondents:

Ms G Doyle of Sparke Helmore Lawyers

ORDERS

The application for an extension of time made on 25 July 2016 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The first applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1965 of 2016

RAJINDER KAUR

First Applicant

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: [2017] FCCA 1962
Decision Date: 18 August 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal, which had affirmed the refusal of Temporary Business Entry (Class UC) visas to the applicants, Ms Kaur and others.

The primary legal issue before the Court was whether the applicants had established sufficient grounds to warrant an extension of time within which to file a competent application for judicial review. This required the Court to consider whether there was an adequate explanation for the delay in filing the application and whether the applicants had reasonable prospects of success in their substantive review.

In determining the application for an extension of time, his Honour Judge Nicholls considered the relevant factors, including the length of the delay and the reasons provided for it. Crucially, the Court found that the applicants had failed to demonstrate reasonable prospects of success in the substantive review of the Tribunal's decision. Without such prospects, the Court concluded that it was not in the interests of justice to grant an extension of time.

Consequently, the application for an extension of time was refused.

Orders