SZVEB v Minister for Immigration - [2018] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVEB v MINISTER FOR IMMIGRATION

[2018] FCCA 1629

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of a delegate of the Minister for Immigration finding that the applicant’s application for a Bridging visa E (Class WE) was not a valid application – applicant needed an extension of time of 462 days – however he marked the ‘no’ box on the form of application indicating he was not applying for an extension of time but inconsistently provided factual grounds for the making of an extension order – application form constituted an “instrument” – principles of construction of an instrument where there is an inconsistency between different parts – proper construction of the form of application required the applicant’s negative answer to be disregarded – applicant found to have applied for an extension of time in writing under s.477(2) of the Migration Act 1958 (Cth) – no reasonable explanation for delay and no substantive ground for a finding of jurisdictional error asserted by applicant – application for extension dismissed.

Legislation:

Migration Act 1958 (Cth), ss.72, 474, 476, 477

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Azevedo v Secretary Department of Primary Industries and Energy (1992) 106 ALR 683

Bechara v Bates [2018] FCA 460

Fitzgerald v Masters (1956) 95 CLR 420

MZABP v Minister for Immigration (2015) 242 FCR 585

R v Riley (1896) 1 Q.B. 309
Sharp v National Rugby League Ltd [2016] NSWSC 730

Applicant:

SZVEB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 3415 of 2017

Judgment of:

Judge Dowdy

Hearing date:

15 May 2018

Date Reserved:

6 June 2018

Delivered at:

Sydney

Delivered on:

26 June 2018

REPRESENTATION

In person via telephone.

Counsel for the Respondent:

Ms C. Saunders

Solicitors for the Respondent:

DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

Grant leave to the Respondent to read and rely upon the Affidavit of Deepak Joshi affirmed on 6 June 2018, which is marked Exhibit D.
The Application filed in this Court on 8 November 2017 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3415 of 2017

SZVEB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Pakistan aged 41 years, having been born on 7 July 1976.
By Application filed in this Court on 8 November 2017 the Applicant seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 462 days or 16 months outside the time limit prescribed by s.477(1) for him to make his substantive Application to this Court under s.476(1); and
b)impliedly to quash and have redetermined the decision dated 29 June 2016 of a delegate (delegate) of the Minister that the application made by him on 27 June 2016 for a Bridging…

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 1629
Decision Date: 26 June 2018

CaseChat Overview and Summary

SZVEB sought judicial review of a decision by a delegate of the Minister for Immigration that his application for a Bridging visa E (Class WE) was invalid. The applicant required an extension of time of 462 days to make his application. However, on the application form, he marked the box indicating he was not applying for an extension of time, while simultaneously providing factual grounds that supported an application for an extension.

The primary legal issue before the Court was how to construe the application form, which constituted an "instrument," given the inconsistency between the applicant's marked answer and the factual grounds provided. Specifically, the Court had to determine whether the applicant's negative response regarding an extension of time should be disregarded in favour of the substantive grounds he advanced, thereby constituting a valid written application for an extension of time under s 477(2) of the *Migration Act 1958* (Cth).

Dowdy J applied the principles of construction for instruments containing inconsistencies, holding that the applicant's negative answer on the form should be disregarded. The Court reasoned that the provision of detailed factual grounds for an extension of time demonstrated a clear intention to seek such an extension, rendering the marked "no" box an error. Consequently, the applicant was found to have made a written application for an extension of time. However, as the applicant provided no reasonable explanation for the significant delay and asserted no substantive grounds for a finding of jurisdictional error, his application for judicial review was dismissed.

Orders