Wijaya and Minister for Immigration and Multicultural and Indigenous Affairs - [2005] AATA 720

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 720
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/482 & V2005/490

GENERAL ADMINISTRATIVE DIVISION )

Re JUITARNO WIJAYA and
ERLEN WIJAYA

Applicants

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date29 July 2005
PlaceMelbourne

Decision The application to extend time to make these applications is refused.
(Sgd) John Handley
Senior Member

PRACTICE – extension of time – applications lodged five months after period permitted to appeal – applicants are adult children of a parent who had business skills visa cancelled – AAT proceedings were dismissed pursuant to s 42A (5) – these proceedings were lodged after dismissal of application of father – applicants and father received cancellation notices at same time – EOT refused – absence of explanation for delay – not fair and equitable to extend time – absence of merit
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305
Comcare v A’Hearn (1993) 119 ALR 85
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
REASONS FOR DECISION

29 July 2005 Mr John Handley, Senior Member

1. The applicants apply to extend time for the making of these applications pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975. The applications were heard on 26 July 2005. Both applicants were unrepresented. Mr Arora appeared (by telephone) on behalf of the Minister.
2.      The circumstances of the applications may be briefly described as follows.
3.      The applicants are the children of Mr Darman Wijaya who was an applicant in proceedings V2004/1310. Mr Darman Wijaya lodged an application to review a decision to cancel his business skills visa. Juitarno Wijaya, one of the applicants in these proceedings, was his father’s representative in those proceedings.
4.      In that application, the decision of the Minister was made on 27 October 2004 and the application was received on 3 November 2004. An application was lodged in this Tribunal on 24 November 2004 and on 2 February 2005 a conference was convened by a conference registrar. Juitarno Wijaya then appeared on behalf of his father. Directions were made on 3 February 2005 to lodge a Statement of Facts and Contentions and other documents in support by 15 April 2005.
5. On 20 April 2005, in the absence of compliance with the Directions, a letter was forwarded to Mr Darman Wijaya putting him on notice that his application was at risk of dismissal if there was continuing failure to comply with the Directions. On 20 May 2005 a hearing was convened to consider whether the application of Darman Wijaya should be dismissed. At that time there was a continuing failure to comply with the Directions made in February 2005. Juitarno Wijaya then appeared on behalf of…

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

AGLC: Wijaya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 720
Case: [2005] AATA 720
Decision Date: 29 July 2005

CaseChat Overview and Summary

The case of Wijaya v Minister for Immigration and Multicultural and Indigenous Affairs involved the applicant, Mr Wijaya, who sought an extension of time to lodge certain applications. The Minister for Immigration and Multicultural and Indigenous Affairs was the respondent. The dispute centred around whether the applicant had a valid reason to justify an extension of time in lodging his applications under the Migration Act 1958. The matter was heard in the Federal Court of Australia.

The legal issues that the court needed to address included whether Mr Wijaya had a sufficient explanation for the delay in making his applications and whether there were any exceptional circumstances that warranted an extension of the time limit. The court had to consider the relevant statutory provisions, case law, and the principle of fairness in administrative law.

The Federal Court examined the applicant's submissions and found that there was no satisfactory explanation for the delay. The court held that the applicant had not demonstrated any exceptional circumstances that would justify an extension of time. It was determined that the applicant's actions did not meet the standards required to warrant a departure from the statutory time limits. Consequently, the court refused the application to extend time to make the applications.

Orders

Orders of the court

The application to extend time to make these applications is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JUITARNO WIJAYA and ERLEN WIJAYA