MANSOUR v Minister for Immigration

[2015] FCCA 2876

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSOUR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2876

Catchwords:
MIGRATION – Application for extension of time – whether applicant has a reasonable explanation for delay and an arguable case – no adequate explanation for delay provided – no arguable case of jurisdictional error – application for extension of time dismissed.

Legislation:

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

Migration Regulations 1994 cl. 602.213, criteria 3001

Applicant: ALI MANSOUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2200 of 2015

Judgment of: Judge Street

Hearing date: 26 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Sydney

Delivered on: 26 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks
DLA Piper

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

NOTATION:

Please note that Order 1 has been amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2200 of 2015

ALI MANSOUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 14 April 2015 affirming a decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. The applicant’s last substantive temporary visa ceased on 19 November 2005. On 18 December 2014, the applicant applied for a Medical Treatment visa.

2. On 19 December 2014, the delegate refused that application.  The reasons for refusal identified that it was necessary for the applicant to meet the criteria under cl.602.213. Those included either that the applicant held a substantive temporary visa at the time of making the application or that the application was made within 28 days after the applicant ceased to hold a substantive visa under the criterion specified in Schedule 3, criteria 3001(1).  Relevantly, the delegate held:

   The applicant last held a substantive temporary visa on the 19^th of November 2005; therefore they did not hold a substantive temporary visa at the time of application and do not meet 602.213(1) and 602.213(2).

   A valid application for a Medical Treatment visa was made on the 18^th of December 2014.

   As the application was not validly made within 28 days after the applicant ceased to hold a substantive visa the applicant does not satisfy 3001 and the criteria of 602.213(3), 602.213(4) and 602.213(5).

   Decision

   As clause 602.213 is not met by the applicant, I find the criteria for the grant of a Medical Treatment (Visitor) visa are not met by the applicant.

   Therefore, I refuse the application by the applicant for a Medical Treatment (Visitor) visa.

3. The applicant lodged an application for review on 16 January 2015.  On 16 February 2015, the applicant was sent an invitation to appear before the Tribunal on 12 March 2015.  The applicant appeared before the Tribunal on 12 March 2015 to give evidence and present arguments and was assisted by an interpreter.  The Tribunal identified that in order to meet the requirements for the Subclass 602 Medical Treatment visa, the applicant had to satisfy the primary criteria in cl.602.213 including relevantly the criteria under criteria 3001.  The Tribunal found that the applicant held a temporary substantive visa that ceased on 19 November 2005 and that the relevant date for the application of the criteria was 19 November 2005. 

4. The Tribunal explained that it had no discretion in relation to the primary criteria under cl.602.213 to take other circumstances into account as the criteria under 3001 was not met. It was in those circumstances the Tribunal affirmed the decision of the delegate.  The grounds of the application in the present case are as follows: 

   1. I am a victim of law which refused my application because it was lodged over 28 days.

   2. The 28 days should not apply to a case where there are compelling and compassionate circumstances.

   3. The refusal of my application was not consistent with natural justice because the factors of the case meet Ministerial Intervention guidelines and the Minister did not act within the power given in his Guidelines.

   4. The Minister and his team failed to comply with procedural fairness because exceptional matters and circumstances should be considered yet the Authority failed to consider.

5. On 17 September 2015, the Registrar of the Court made orders providing for the applicant to file any amended application, any affidavit or submissions in accordance with the timetable.  No such documents were filed. 

6. Given that the decision of the Tribunal was made on 14 April 2015 and the application for review was not filed until 7 August 2015, an extension of time is required under s.477 of the Migration Act 1958 (Cth). An extension of time requires a satisfactory explanation for the delay and a sufficiently arguable ground or grounds to warrant an extension of time in the interests of the administration of justice. In the grounds of the application, the applicant set out a purported explanation for the delay as follows:

   1. Kindly refer to the decision dated 14 April 2015. I have asked the Tribunal to consider my case and recommend ministerial intervention. At the time the Tribunal Member asked me to write to the Minister and I strongly believed at the time that the Minister will intervene in my case because of my compelling circumstances. Please see my correspondence to the Honourable Minister dated 23 April 2015 as well as other correspondence to the Tribunal attached to my letter of 4 April 2015.

   2. On 28 May 2015 the Minister acknowledged receiving my letter and lately my Case Officer of Compliance Section asked me to provide airline ticket and depart Australia.

   3. Under the current circumstances I am unable to return either to Syria or to Lebanon and for that reason I am exercising my rights to lodge a Federal Court which is available to me and I hope that the Honourable Court will accept my application.

7. None of the matters under either heading in the application identify an arguable jurisdictional error. The pursuit of ministerial intervention is not an adequate explanation for the delay, and that of itself would be a sufficient ground to refuse an extension of time under s.477. However, in the present case, it is clear that there is no arguable jurisdictional error that has been identified in the application. The applicant has drawn attention to the fact that he has earlier lodged a Partner (Residence) (Class VS) subclass 801 visa application on 5 October 2005, which was refused on 14 February 2006.

8. The applicant received a letter from the Department on 3 September 2015 identifying that there had been an error in the processing of that Partner visa application and that a new decision had been made and notifying the applicant of a refusal in that regard.  The applicant has since filed an application to the Administrative Appeals Tribunal on 23 September 2015 seeking a review of that decision by the Tribunal.  The Partner (Residence) (Class VS) visa application is not one that is before this Court.  This Court does not have jurisdiction to deal with that application. 

9. The applicant indicated that he had suffered a lot of stress because of what he said was the errors by the department. To the extent that there was any error as identified in the letter date 3 September 2015, it does not relate to the Medical Treatment visa and is accordingly not relevant to the application that is before this Court. Nothing said by the applicant identified any arguable jurisdictional error. I am not satisfied that there is any sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice under s.477 of the Migration Act 1958. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015