Naidu v Minister for Immigration

[2017] FCCA 2331

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAIDU v MINISTER FOR IMMIGRATION [2017] FCCA 2331

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Other Family (Residence) (Class BU) Remaining Relative (subclass 835) visa – application for an extension of time under s.477 – application 589 days outside the time – seeking Ministerial Intervention is not a reasonable explanation for the delay – no sufficient argument on the merits to sufficiently warrant an extension of time in the interests of the administration of justice – the amended application for an extension of time under s.477 is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48(3), 477
Migration Legislation Amendment Act (No.1) 2008, No.85, 2008

Applicant: JYOTI ARTIKA NAIDU

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1157 of 2017

Judgment of: Judge Street

Hearing date: 25 September 2017

Date of Last Submission: 25 September 2017

Delivered at: Sydney

Delivered on: 25 September 2017

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the Respondent: Mr N Swan of counsel

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to file in Court the amended application dated 25 September 2017 and dispenses with the need for the electronic filing of the same.

2. The amended application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

3. The applicant pay the respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1157 of 2017

JYOTI ARTIKA NAIDU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for Constitutional relief in respect of a decision of the respondent made on 29 July 2015, notifying the applicant of an invalid application for a Other Family (Residence) (Class BU) Remaining Relative (subclass 835) visa. 

2. The application filed in this Court is one that requires an extension of time under s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”). The application was lodged in this Court on 18 April 2017 and the 35 day period expired on 2 September 2015. Accordingly the application as 589 days out of time.

Consideration of the delay

1. The only substantive explanation advanced in relation to the delay is the seeking of a Ministerial Intervention. The seeking of Ministerial Intervention reflects the choice of pursuing a particular avenue, and is not an adequate explanation for delay. The circumstances of the present case are such that the delay is inordinate, and on that ground alone, given the deliberate decision to seek a Ministerial Intervention, this Court would refuse to extend time under s.477 of the Migration Act.

Consideration of the merits of the application

1. However, out of deference to the argument advanced by Mr Turner, the solicitor for the applicant it is one wherein, considering whether an extension of time should be ordered, generally the merits are the material consideration.

2. The grounds in the amended application are as follows:-

   1. The application was ruled invalid because of the operation of the Migration Act 1958 s.48 due to the Applicant being refused a Tourist (Class TR 676) visa on 17 February 2006.

   2. As the Applicant last entered Australia on 29 August 2006 and lodged the Remaining Relative Visa on 10 June 2010, the refusal of her tourist visa application on 17 February 2006 does not enliven the operation of s.48 of the Act.

3. Mr Turner has skilfully sought to argue that s.48(3) of the Migration Act is inconsistent with the transitional cl.23 that governs the introduction of s.48(3) by the Migration Legislation Amendment Act (No.1) 2008, No.85, 2008. Mr Turner’s argument seeks to attribute to the construction of s.48(3) of the Migration Act, a future operation in relation to those who depart, who leave and re-enter the migration zone. Mr Turner submits that as the applicant left or re-entered the migration zone before the introduction of the amendment in the present case, s.48(3) of the Migration Act has no application to the applicant.

4. Mr Turner submits that the substantive provisions should prevail in the circumstances of an inconsistency with the transitional provision. I do not regard there to be any inconsistency between the substantive provision and the transitional provision. The transitional provision makes clear that s.48(3) of the Migration Act applies whether the travel mentioned in s.48(3) of the Migration Act took place before or after the commencement of time. I do not accept that there has been inconsistency by reason of the language, “leaves and re-enters” found in s.48(3) of the Migration Act. In these circumstances, notwithstanding the skilful argument, the substantive merits are wanting, in relation to the amended application.

5. The Court notes the applicant is a citizen of Fiji, who on 6 October 2003 entered Australia as the holder of a Student (Subclass 573) visa, which was valid until 31 August 2005. In October and December 2005, the applicant was granted three Tourist (Class TR 676) visas, the last of which expired on 25August 2006. The applicant applied for fourth Tourist (Class TR 676) visa, which was refused on 17 February 2006. 

6. On 25 of August 2006, the applicant was granted a Bridging Visa B (Subclass 020) and as the holder of that visa, departed Australia on 26 August 2006 and returned to Australia on 29 August 2009. Since that time, the applicant has held numerous further Bridging visas and has not left and re-entered Australia since August 2006.

7. For the reasons given above, I am not satisfied that there is an adequate explanation for the delay in the bringing of the application. I am not satisfied that there are sufficient merits to warrant an extension of time, as being necessary in the interest in the administration of justice under s.477 of the Migration Act. The amended application for an extension of time under s.477 of the Migration Act is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 September 2017