KUMAR v Minister for Home Affairs

[2019] FCCA 1505

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR HOME AFFAIRS [2019] FCCA 1505

Catchwords:
MIGRATION – Administrative review of decision of the Minister – no merits to application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91J, 91K

Applicant: SUBRATA KUMAR

Respondent: MINISTER FOR HOME AFFAIRS

File Number: BRG 882 of 2018

Judgment of: Judge Vasta

Hearing date: 1 April 2019

Date of Last Submission: 1 April 2019

Delivered at: Brisbane

Delivered on: 1 April 2019

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter.

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Application for an extension of time is refused.

2. That the Application filed 22 August 2018 is otherwise dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 882 of 2018

SUBRATA KUMAR

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 25 June 2018, the Applicant made an application for a medical treatment visa.  Such a visa can be given, however, if the Applicant is a non-citizen, then the application is not a valid application.  That is because, if the Applicant is a non-citizen and he purports to apply for a visa other than a temporary Safe Haven visa, then that application is not a valid application.

2. The Applicant was told this on 27 June 2018, two days after he had lodged his application.  It was not a decision for which there was a right of merits review.  Therefore, the Applicant has to come to this Court to argue that the decision of the Minister was affected by jurisdictional error.  He had until 1 August 2018, to do that but did not lodge his application until 22 August 2018.  Therefore, this is an application to allow an extension of time.

3. The original application, as far as the extension of time is concerned, simply reads as follows:

   1. I don’t find the right person to help me to do the application. That’s I can’t making in time.

   The actual grounds of the applicant are these:

   My medical treatment visa application determined as an invalid application.  I will provide more details in my amended application. 

   As a truthful witness, I will provide with the affidavit. 

   The Department of Home Affairs made a jurisdictional error when it discarded.

   Particular:

   In the decision the Department of Home Affair found there was section 91K and 91L.  My application was not a valid application.

   That is all that is said.

4. When the Applicant came before Registrar Lynch on 10 October 2018,  the Registrar gave the Applicant until 21 December 2018 to file and serve an amended application and then, within 28 days prior to the hearing, a filing and serving of written submissions.  The Registrar actually adjourned the hearing until 25 March 2019.  The Applicant was told that the hearing would be adjourned a week and so it has not been heard until today, 1 April 2019.

5. Despite being told by Registrar Lynch to file an amended application and putting in his original application that he would file an amended application, he has not filed any material.  He did not file any submissions either. 

6. When the matter was to come on for hearing at 2.15pm, the Applicant asked for a half-hour delay so that he could, with the assistance of the interpreter, understand the submissions that the Minister was making.  That time was accommodated and he has had the assistance of the interpreter in understanding the Minister’s submissions.

7. I have asked him to tell me what submissions he wants to make and he has simply repeated that he is ill, he has been diagnosed as being mentally ill, and that is why he applied for the visa. He has then talked about what I would consider to be the issues involved in applying for a Safe Haven Enterprise visa. Of course, this is not such a matter that is before me. The combined effect of s.91J and s.91K of the Migration Act 1958 (Cth) (“the Act”) is that if an Applicant applies for a visa and, at the time, they have not left Australia since ceasing to hold a temporary Safe Haven visa, then that application is not a valid application.

8. The evidence before me shows that the Applicant had been granted a Safe Haven Enterprise visa on 7 December 2017 but that such a visa ceased on 14 December 2017, some seven days later.  I am not sure why the Applicant is or was still in the country but it seems as though he was in the country without a visa on 25 June when he lodged the application.  He had not left Australia since he ceased to hold the temporary Safe Haven visa on 14 December 2017.  That means that his application could not be a valid application.

9. The Applicant has failed to demonstrate how there has been an error.  All he has said is that he cannot afford a lawyer to help him with this.  With all due respect to the Applicant, no lawyer could help him in these circumstances where the legislation is clear.  There would be absolutely no merit in the application at all.  This is an application for extension of time and the Court does look at what the excuse is for the late filing, what prejudice there would be to the Respondent, and then, thirdly, the merits of the application.

10. Whilst I do not accept the excuse that the Applicant has proffered as to why the matter was late; that is, that he could not get anyone to help him, this application has really been fought upon the merits of the substantive application. 

11. As I have previously said, there are no merits to the substantive application.  Therefore, I refuse the application to extend the time in which the Applicant can file the application and, in all other respects, I dismiss the application with costs in the sum of $3737.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 27 June 2019