Matar v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Matar v Minister for Home Affairs [2018] FCA 1917

Appeal from: Application for extension of time:  Matar v Minister for Home Affairs [2018] FCCA 1251
File number: NSD 945 of 2018
Judge: MCKERRACHER J
Date of judgment: 26 November 2018
Date of publication of reasons: 29 November 2018
Catchwords:

MIGRATION – application for an extension of time and leave to appeal – where the applicant’s application for a visitor visa was invalid under s 48 of the Migration Act 1958 (Cth) – where the application before this Court turned on the merits of the grounds of appeal sought to be raised – no jurisdictional error

Held:  application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act 1958 (Cth) ss 48

Migration Regulations 1994 (Cth) reg 2.12

Federal Court Rules 2011 (Cth) rr 35.13, 35.14

Federal Circuit Court Rules 2001 (Cth) rr 44.12, 44.12(1)(a)

Cases cited:

Baig v Minister for Immigration and Border Protection [2014] FCA 855

Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Gido-Christian v Minister for Immigration and Citizenship [2007] FMCA 825

House v The King (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Matar v Minister for Immigration & Anor [2017] FCCA 1587

Matar v Minister for Immigration and Border Protection [2017] FCA 1314

Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523

MZXQQ v Minister for Immigration and Citizenship [2008] FCA 250

SZHSY v Minister for Immigration and Citizenship [2007] FCA 793

SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

Date of hearing: 26 November 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 31
Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter
Counsel for the Respondent: Ms C Saunders
Solicitor for the Respondent: DLA Piper Australia

ORDERS

NSD 945 of 2018
BETWEEN:

RAAD MATAR

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

26 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent, to be taxed if not agreed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

  1. This proceeding was commenced by an application made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time and leave to appeal from a judgment and orders of Federal Circuit Court of Australia delivered on 11 May 2018:  Matar v Minister for Home Affairs [2018] FCCA 1251. The primary judge dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCCA Rules), an application to review a decision of THE delegate of the Minister for Home Affairs dated 18 December 2017 to the effect…

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Details
Case
[2018] FCA 1917
Decision Date

CaseChat Overview and Summary

In the case of Matar v Minister for Home Affairs, the applicant sought an extension of time and leave to appeal a decision that their application for a visitor visa was invalid under section 48 of the Migration Act 1958 (Cth). The Federal Court was tasked with determining whether there was sufficient justification for the delay in filing the application and the merits of the grounds for appeal. The court had to assess whether any jurisdictional error was made by the primary judge, and if the application for leave to appeal could be substantiated.

The primary legal issue was whether the application for leave to appeal was made within the permissible time frame and whether the appeal had merit. Specifically, the court had to consider if there was a denial of natural justice or procedural fairness by the Minister or the Court. Additionally, the court examined whether the primary judge correctly interpreted the Act and Regulations in finding that the visitor visa was invalid due to the applicant’s lack of a substantive visa and the refusal of a medical visa. The court also evaluated whether the primary judge overlooked compelling and compassionate reasons that should have influenced the visa application's validity.

The court found that there was no jurisdictional error in the primary judge's decision. The Minister was correct in concluding that the visitor visa was invalid, and the primary judge properly interpreted the Act and Regulations. The applicant's contention of a denial of natural justice was not substantiated due to the lack of specific evidence. Furthermore, the applicant's compelling and compassionate reasons were not relevant to the visa application's validity, and the primary judge did not ignore these reasons. The court also noted that the absence of written reasons did not constitute appellable error as the reasons were adequately communicated in other forms. Consequently, the application for an extension of time for leave to appeal was dismissed with costs awarded to the respondent.

The court's final order was to dismiss the application and direct the applicant to pay the respondent's costs, to be taxed if not agreed. This order was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the costs of the respondent, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to ground 3, there is a contention of a denial of natural justice and fairness by the Minister and the Court, but in the absence of any particularisation to explain where the denial occurred, that assertion is simply without foundation. The Minister was correct, in interpreting the Act, to conclude that the visitor visa was invalid, as did the primary judge on his review. No contention of denial of procedural fairness or natural justice is made out. CONCLUSION Accordingly, I must refuse the application for an extension of time for leave to appeal with costs.

Ratio Decidendi

Legal Principle Established

In addition, in light of the discretionary nature of the power exercised by the primary judge under rule 44.12 of the FCCA Rules, to succeed in challenging the exercise of a discretionary power, it must be shown that an error of the kind identified in House v The King (1936) 55 CLR 499 (at 505) was made. That is, it would need to be shown that the exercise of discretion miscarried because a wrong principle was acted upon, extraneous or irrelevant matters were used as guides, relevant matters were ignored or a mistake of fact was made. Alternatively, a failure to properly exercise a discretion may be inferred where the discretionary decision is unreasonable or plainly unjust. CONSIDERATION The Minister confirms no prejudice would be suffered by the Minister should the extension of time be granted. Therefore, the matters to be determined by the Court are whether there is an acceptable explanation for the delay and the merits of the substantive appeal, including whether any substantial injustice would be suffered by the applicant if leave to appeal were refused. I am prepared to proceed on the basis that, in light of the materials filed by the applicant, albeit that they have not been formally proved, there is an acceptable explanation for the delay. So the question is as to the merits of the substantive appeal if leave were granted.Merits of the application for leave to appeal and draft notice of appeal Unfortunately, it is in the merits where the applicant has difficulty. As he did not hold a substantive visa and, after last entering Australia, was refused a medical visa, he was barred from applying for a visitor visa by s 48 of the Act. Pursuant to reg 2.12 of the Regulations, visitor visas are not a class of visa prescribed for s 48. There was a minor error in the notification of the relevant date, but that does not impact upon the lawfulness of the Minister’s actions. It follows that the ground of the application for leave to appeal, in contending error, cannot be substantiated in relation to visa approval under the Act. As to the ground contending that the primary judge ignored compelling and compassionate reasons, on a reading of the decision, this does not appear to be the case. It is clear that the judge was aware of the reasons advanced, but those reasons do not fall within the ambit of the role of that Court. Reference to those reasons misapprehends the role of the Court, which is to determine whether the decision on review is affected by jurisdictional error. The primary judge was correct to find that any compelling or compassionate circumstances of the applicant were not factors to take into account in the validity of the visa application being considered. His Honour was correct to conclude that there was no jurisdictional error established and it follows that this Court is satisfied that there was no error of law on the part of the primary judge. In relation to the complaint that written orders or reasons were not provided, that complaint does not establish appellable error and written reasons and orders were published by the Federal Circuit Court in ample time for the purposes of this application.