Megase v Minister for Immigration - [2018] FCCA 3682

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEGASE v MINISTER FOR IMMIGRATION

[2018] FCCA 3682

Catchwords:
MIGRATION – Mandatory cancellation of visa pursuant to s 501 of the Migration Act 1958 (Cth) – application to extend time under s 477 of the Act – whether the applicant was lawfully notified under s 501CA(3) of the Act – whether the giving of the notice was invalid for want of delegated authority – actual authority under s 497 of the Act – implied authority – no satisfactory explanation for the delay – insufficient merits to warrant necessary an extension of time in the administration of justice – the application for an extension of time would otherwise have been dismissed – no migration decision – no jurisdiction.

Legislation:

Migration Act 1958 (Cth), ss.474, 476, 477, 497, 501, 501CA

Migration Regulations 1994 (Cth), r. 2.55

Cases cited:

Aciek v Minister for Immigration & Border Protection [2017] FCCA 3237
Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321
Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442
EFX17 v Minister for Immigration & Border Protection & Anor [2018] FCCA 3179

Applicant:

SAKKA PAPPOE MEGASE

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1946 of 2017

Judgment of:

Judge Street

Hearing date:

12 December 2018

Date of Last Submission:

12 December 2018

Delivered at:

Sydney

Delivered on:

12 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms M Yu

Solicitors for the Applicant:

Salvos Legal

Counsel for the Respondent:

Mr D Hughes

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The further amended application is dismissed.
The applicant pay the respondent’s costs including the reserved costs fixed in the amount of $7,206.00.

DATE OF ORDER: 12 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1946 of 2017

SAKKA PAPPOE MEGASE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

This is an application purportedly within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a notification given on 6 December 2016 in compliance with s 501CA(3) of the Act of a cancellation under s 501(3A) of the Act.
The proceedings were commenced on 16 June 2017 and, accordingly, even if within the Court’s jurisdiction will require an extension of time under s 477 of the Act. The principles under s 477 of the Act are not in dispute and the application relevantly seeks an extension of time in accordance with the requirements of s 477(2) of the Act. The applicant proffered as an explanation in relation to being in detention and needing to obtain legal advice, being illiterate and suffering from a medical condition. The evidence has been expanded upon in support of the explanation for the delay. The delay is not insignificant and, whilst the applicant’s circumstances are unfortunate, the Court does not regard them of themselves as a satisfactory explanation for the six-month delay.
The Court must however consider whether it is necessary in the…

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: [2018] FCCA 3682
Decision Date: 12 December 2018

CaseChat Overview and Summary

The applicant, Megase, sought an extension of time to seek review of a mandatory visa cancellation decision made by the Minister for Immigration under section 501 of the *Migration Act 1958* (Cth). The application was heard by Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issues before the Court were whether the applicant had been lawfully notified of the visa cancellation decision under section 501CA(3) of the Act, and if not, whether the notice was invalid due to a want of delegated authority. The Court also considered whether the Minister had actual or implied authority to issue the notice, and whether there was a satisfactory explanation for the applicant's delay in seeking review, along with the merits of the application to warrant an extension of time in the interests of the administration of justice.

Judge Street found that the applicant had not provided a satisfactory explanation for the delay and that the merits of the case were insufficient to justify an extension of time. Consequently, the Court determined that the application for an extension of time would otherwise have been dismissed. As a result, the Court concluded that there was no migration decision properly before it, and therefore, it lacked jurisdiction to proceed.

Orders