Saroj v Minister for Immigration - [2018] FCCA 3134

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAROJ v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3134

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa or a Partner (Residence) (Class BS) (Subclass 801) visa because the applicant applied to the Administrative Appeals Tribunal outside of the 21 day time limit imposed by s.347(1)(b) of the Migration Act 1958 (Cth) – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.24Z, 29

Evidence Act 1995 (Cth), s.58

Migration Act 1958 (Cth), ss.5F, 65, 66, 336N, 347, 494C

Migration Regulations 1994 (Cth)

Cases cited:

Australian Competition and ConsumerCommission v Air New Zealand (2012) 207 FCR 448

Brown v Minister for Home Affairs [2018] FCA 1643
Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335
CLA15 v Minister for Immigration & Border Protection [2017] FCA 116
DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521
Kumar v Minister for Immigration [2017] FCCA 1116
Patel v Minister for Immigration and Citizenship [2012] FCA 145

Applicant:

SOMCHAI SAROJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1731 of 2016

Judgment of:

Judge Dowdy

Hearing date:

21 November 2017

Delivered at:

Sydney

Delivered on:

5 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Ms S. He

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 5 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1731 of 2016

SOMCHAI SAROJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Thailand aged 43 years, having been born on 15 October 1975.
By Application filed in this Court on 5 July 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 8 June 2016 which found that it did not have jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 February 2016 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act) because it had been lodged with the Tribunal after the 21 day time period prescribed under the Act.
I note that the grant of a Partner…

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 Saroj 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 3134
Decision Date: 5 November 2018

CaseChat Overview and Summary

The applicant, Saroj, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The AAT had determined it lacked jurisdiction to review the Minister's delegate's refusal to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa or a Partner (Residence) (Class BS) (Subclass 801) visa. This lack of jurisdiction arose because the applicant had lodged their application with the AAT outside the 21-day time limit prescribed by section 347(1)(b) of the *Migration Act 1958* (Cth).

The central legal issue before Dowdy J was whether the AAT had committed a jurisdictional error in finding that it had no power to consider the applicant's review application due to the late lodgement. The applicant contended that such an error had occurred.

Dowdy J reasoned that the time limit stipulated in section 347(1)(b) of the *Migration Act 1958* (Cth) is a condition precedent to the AAT's jurisdiction to entertain a review application. As the applicant failed to meet this statutory requirement, the AAT correctly concluded that it lacked the necessary jurisdiction. No jurisdictional error was identified by the court.

Consequently, the application for judicial review was dismissed.

Orders