FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3128 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – application for an extension of time – where minimal delay, satisfactory explanation and lack of prejudice – no merit in substantive application – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 348, 476, 477 Migration Regulations 1994 (Cth), cl.500.215 of sch.2 |
| Applicant: | MUHAMMAD SABOOR KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 217 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant pay the first respondent’s costs fixed in the sum of $5,250.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 217 of 2019
| MUHAMMAD SABOOR KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 13 June 2019, the applicant, Mr Khan, applies for an extension of time in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) dated 8 April 2019.
The Tribunal found that it had no jurisdiction in relation to the applicant’s purported application for review of a decision of the then Minister for Home Affairs (the “Minister”) made on 28 November 2018 to refuse to…
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Details
- Case
- [2019] FCCA 3128
- Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr Khan for review of a decision made by a delegate of the Minister for Immigration on 28 November 2018 to refuse to grant him a Student (Temporary) (Class TU) visa. Mr Khan lodged his review application with the Tribunal on 21 February 2019. The Tribunal found that it had no jurisdiction to review the delegate's decision.
The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the delegate's decision, given that a prior application for review of the same decision had already been made to the Tribunal. The Tribunal was required to determine if a decision, once validly reviewed by the Tribunal, remained a "reviewable decision" for the purposes of further review.
The Tribunal reasoned that once it had received a valid application for review of a reviewable decision and discharged its statutory duty to conduct that review, the original decision ceased to be a reviewable decision. This principle, supported by case law such as *SZBWJ v MIAC* [2008] FMCA 164, *Jayasinghe v MIEA* (1997) 76 FCR 301, and *SZASP v MIAC* [2007] FCA 771, established that the Tribunal lacks the authority to review a delegate's decision on more than one occasion. The applicant's subsequent letter, detailing his efforts to rectify issues with his university course and visa, did not alter the fact that the delegate's decision had already been the subject of a prior, valid review.
Consequently, the Tribunal concluded that it did not have jurisdiction in the matter.
The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the delegate's decision, given that a prior application for review of the same decision had already been made to the Tribunal. The Tribunal was required to determine if a decision, once validly reviewed by the Tribunal, remained a "reviewable decision" for the purposes of further review.
The Tribunal reasoned that once it had received a valid application for review of a reviewable decision and discharged its statutory duty to conduct that review, the original decision ceased to be a reviewable decision. This principle, supported by case law such as *SZBWJ v MIAC* [2008] FMCA 164, *Jayasinghe v MIEA* (1997) 76 FCR 301, and *SZASP v MIAC* [2007] FCA 771, established that the Tribunal lacks the authority to review a delegate's decision on more than one occasion. The applicant's subsequent letter, detailing his efforts to rectify issues with his university course and visa, did not alter the fact that the delegate's decision had already been the subject of a prior, valid review.
Consequently, the Tribunal concluded that it did not have jurisdiction in the matter.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal’s decision appears at CB87 to CB89. The decision in full provides as follows:1. This is an application for review of a decision of a delegate of the Minister for Immigration on 28 November 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).2. The review application was lodged with the Tribunal on 21 February 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.3. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 25 January 2019. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.4. On 16 March 2019 the applicant wrote to the Tribunal in these terms:Thank you for replying to me regarding my case, I will try my level best to give you all the information I have regarding my case. It all started last year when the university asked me to arrange a meeting with a career counselor, in that meeting I was advised that I should change my current course to a course that is relatively similar to the one I was doing. I followed the instructions that were given to me and lodged a change of course application. However, due to unclear reasons the application was not accepted and i was asked to lodge the application again next semester.Next semester I lodged the application again in August because my visa was expiring in September 2018. With constant communication with the university via email, I was asking them about the progress of my application to which I got the same reply that it is under process as they were processing my advance standing. After quiet delay I finally got the offer letter along with the advance standing that they gave me considering my previous studies. There was a small issue with the advance standing that I received, a few units were missing. I contacted the university regarding this matter to which they replied to me that the admissions officer who was looking after this case is on holidays and nothing can be done at the moment.After desperately waiting for him to come back, I contacted the case officer and asked for an appointment to see him as I wanted to discuss my case details with him. I was straight away refused, for unknown reasons. I again contacted the university through student central and briefed them about my case. With their help I lodged the application for the advance standing again and completed the remaining steps to get enrolled in the new course. Everything got sorted out last week, and now I have been enrolled in three units this semester. Sir I only have six (one of those is related to internship at an engineering firm), units left in my degree, which means I will complete my degree by the end of this year. The earlier mistake of lodging the application six days late was a genuine misunderstanding between the dates. I would have never made that mistake intentionally, but I apologise for that sincerely. I have already uploaded the COE in my application, I just got the course planner from the university last week, I will forward you the copy of that. As well as the copy of the medical insurance for the entire period of my studies. I hope this reply will help clear things from my side and provide all the updated information about my case.If you need any further information regarding anything please let me know.5. Regardless of this information, as the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.DECISION6. The Tribunal does not have jurisdiction in this matter.
Ratio Decidendi
Legal Principle Established
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