Raza v Minister for Immigration - [2018] FCCA 3456

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAZA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3456

Catchwords:
MIGRATION – Student visa – extension of time – application lodged electronically into non-functioning computer system – applicant held substantive visa at time of electronic filing – application lodged personally next business day – applicant by then not holder of a substantive visa – criteria applicable preclude applicant from meeting applicable requirements for visa – application refused.

Legislation:

Migration Act 1958 (Cth), ss.347, 349, 351, 357A, 360, 474, 476, 477, 495B

Migration Regulations 1994, cl.573.211

Cases cited:

Applicant A2 of 2002 v MIMIA [2003] FCA 576
Applicant M29 of 2001 v MIMIA [2003] FCA 1266
AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358

Caswell v Dairy Produce Quota Tribunal for England & Wales [1990] 2 AC 738

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Johnson v Williams [2000] FCA 3; (2000) 58 ALD 1

Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243

Other materials cited:
McGee, Limitation Periods 7^th Ed (2014)

WMC Gummow, Change and Continuity, Statute, Equity and Federalism, Oxford University Press (1999)

Applicant:

MUHAMMAD TAYYAB RAZA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1171 of 2016

Judgment of:

Judge A Kelly

Hearing date:

26 November 2018

Date of Last Submission:

26 November 2018

Delivered at:

Melbourne

Delivered on:

27 November 2018

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondents:

Ms Ward

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1171 of 2016

MUHAMMAD TAYYAB RAZA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 3 June 2016, the applicant seeks an extension of time to apply for judicial review under s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (Tribunal) dated 18 June 2015. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse the applicant…

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.

Keep reading for free

Create a free CaseChat account to read Raza v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3456
Decision Date: 27 November 2018

CaseChat Overview and Summary

In *Raza v Minister for Immigration*, the applicant sought judicial review of the Minister's decision to refuse a student visa application. The applicant had attempted to lodge an application electronically, but the system was not functioning. At the time of this attempted electronic lodgement, the applicant held a substantive visa. The applicant subsequently lodged the application in person on the next business day, by which time they no longer held a substantive visa. The criteria applicable to the visa at that later time precluded the applicant from meeting the requirements.

The central legal issue before the Court was whether the applicant's in-person lodgement on the business day following the attempted electronic lodgement constituted a valid application for the student visa, notwithstanding that the applicant no longer held a substantive visa at the time of the in-person lodgement. This required the Court to consider the effect of the non-functioning electronic lodgement system and the timing of the applicant's subsequent in-person lodgement in relation to the visa application requirements.

Judge A Kelly reasoned that the legislative framework governing visa applications prioritised the lodgement of an application while the applicant held a substantive visa. The Court found that the attempted electronic lodgement into a non-functioning system did not constitute a valid lodgement for the purposes of the *Migration Act 1958* (Cth) or the associated regulations. Consequently, the subsequent in-person lodgement, occurring after the applicant had ceased to hold a substantive visa, meant that the applicant did not meet the threshold requirements for the grant of the student visa. The Court therefore dismissed the application.

Orders