SHRESTHA v Minister for Immigration
[2013] FMCA 235
•5 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHRESTHA v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 235 |
| MIGRATION – Application seeking review of a decision of the MRT – application filed out of time – application for an extension of time – no jurisdiction to hear substantive proceedings – extension of time refused. |
| Migration Act 1958 (Cth), ss.65, 477(1) Migration Regulations 1994 (Cth) cls.802.212, 802.215 |
| BZABK v Minister for Immigration and Citizenship [2012] FCA 774 |
| Applicant: | SANDIP SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 72 of 2013 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Solicitors for the First Respondent: | Ms B. Rayment of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The application for an extension of time is refused.
The applicant is to pay the first respondent’s costs of, and incidental to, the application, fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 72 of 2013
| SANDIP SHRESTHA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application seeking review of a decision of the Migration Review Tribunal (the “Tribunal”), Case No. 1111407, made on 10 December 2012. The applicant filed the application on 16 January 2013, 37 days after the decision was handed down by the Tribunal. On 2 April 2013, I made orders refusing the applicant’s application seeking an extension of time in which to lodge an application from the MRT in this Court. These reasons give effect to those orders.
The Proceedings
Ms Rayment, appearing for the Minister, informed the Court she would be seeking an immediate hearing of the application’s application for an extension of time as the application had been filed two days out of time. Section 477(1) of the Migration Act 1958 (Cth) (the “Migration Act”) states:
1. An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
Ms Rayment indicated to the Court that the applicant had only become aware of the Tribunal’s decision approximately two weeks before filing the application on 16 January 2013, but that this would have still given the applicant enough time to lodge the application within the 35 day window.
Ms Rayment submitted that the reason for her seeking a refusal the application for an extension of time was more fundamental than the application being filed two days out of time, as the application was an abuse of process. She indicated the applicant had applied for a Child (Residence) (Class BT) visa, however, was not the dependant of an Australian Citizen or a New Zealand permanent resident. Ms Rayment also indicated the applicant was over the age of 25 and did not have any of the conditions that would allow him to meet the criteria for the visa. Accordingly, Ms Rayment argued that it would not be in the interests of the administration of justice for time to be extended and asked the Court to refuse the application for the extension of time. Ms Rayment also indicated that the application would wish to withdraw his application as he conceded the flaws in it.
In the Tribunal’s Decision Record dated 10 December 2012, it found at [27] – [36]:
FINDINGS AND REASONS
Dependent Child
27. As noted above, cl. 802.212 [of the Migration Regulations 1994 (Cth)] requires that the review applicant be a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen and, subject to certain circumstances provided in cl. 802.212(2), be under 25 years of age at the time of the application.
28. The only information before the Tribunal about the review applicant’s parents is contained in the “Application for Migration to Australia by a Child” Form 47CH. This indicates that his mother and father and one sibling are residents of Nepal. The review applicant has not provided any evidence that he is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. The Tribunal is not satisfied that the applicant is a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen as required by cl. 802.212(1)(a).
29. The Tribunal finds that the review applicant was 25 years of age at the time of the application. The Tribunal accepts as evidence of this the Departmental movement records for the applicant as contained on the Tribunal’s file. The review applicant has not provided any evidence that he was incapacitated for work due to total or partial loss of his bodily or mental functions as set out in r. 1.03(b)(ii) as referred to by cl. 802.212(2).
30. Accordingly the Tribunal finds the applicant does not meet the requirements of cl. 802.212.
Letter of support/sponsorship
31. As also noted above, cl. 802.215(a) requires that the application be supported by a letters (sic) of support from a State or Territory government welfare authority, or, the applicant be sponsored by an Australian citizen, holder of a permanent visa or eligible New Zealand citizen who has certain characteristics as set out in cl. 802.215(b).
32. Neither of these elements was addressed in the review applicant’s application. No letter in support was provided nor was any sponsorship form completed or any other indication given as to any proposed sponsorship arrangements.
33. Accordingly the Tribunal is not satisfied that the application is supported by a letter of support from a State/Territory welfare authority as is required by cl. 802.215(a), or that the review applicant is sponsored by a person who has turned 18 and is an Australian citizen, a holder of a permanent visa or eligible New Zealand citizen as required by cl. 802.215(b).
34. It follows that the Tribunal finds that the review applicant does not satisfy the requirements of cl. 802.215.
CONCLUSIONS
35. For the reasons given above the Tribunal finds the applicant does not satisfy the requirements of cl. 802.212 and cl. 802.215.
36. At the time the visa application was lodged the Child (Residence) (Class BT) visa contained the following subclasses: Subclass 802 (Child) and subclass 837 (Orphan relative). The review applicant indicated that he sought the visa in subclass 802 (Child). There is no evidence to suggest that the review applicant meets key criteria for the other subclass. Furthermore the review applicant is unable to satisfy the definition of “orphan relative” contained in subregulation 1.14 as an applicant must not have turned 18 at the time the application is lodged. This means the review applicant is unable to satisfy the time of application criteria contained in Subdivision 837.21.
Ms Rayment also indicated the Court she sought the orders she did, as these would prevent the applicant from having an opportunity to appeal the decision. This would not be the case if the application were withdrawn by the applicant or dismissed by the Court. Ms Rayment handed up a decision of his Honour Foster J in BZABK v Minister for Immigration and Citizenship [2012] FCA 774, where his Honour dealt with the terms of orders made in respect of proceedings in the Federal Magistrates Court and difficulties that subsequently arise. In those proceedings, the applicant did appeal as the orders made below in the Federal Magistrates Court were not plain on their face which was addressed by Foster J. Ms Rayment indicated that if the Court was minded, it should refuse the application for an extension of time so no appeal could be lodged.
The applicant, when asked, indicated that he did not have anything to say.
Conclusion
I am satisfied that the oral submissions made by Ms Rayment accurately address the issues contained in the application for an extension of time. I am also satisfied that the Tribunal’s Decision Record accurately address the particular circumstances in this matter. The application is an abuse of process and, accordingly, the application for the extension of time should be refused.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 5 April 2013
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