Yoshino v Minister for Immigration and Border Protection
[2016] FCA 1414
•11 November 2016
FEDERAL COURT OF AUSTRALIA
Yoshino v Minister for Immigration and Border Protection
[2016] FCA 1414
Appeal from: Application for an extension of time and leave to appeal: Yoshino v Minister for Immigration [2014] FCCA 1976 File number: NSD 1072 of 2016 Judge: RARES J Date of judgment: 11 November 2016 Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 476A, 477
Migration Regulations 1994 (Cth)
Date of hearing: 11 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S He of DLA Piper Australia ORDERS
NSD 1072 of 2016 BETWEEN: RYO YOSHINO
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
11 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application be dismissed for want of jurisdiction pursuant to s 476A(3)(a) of the Migration Act 1958 (Cth).
2.The applicant pay first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
On 5 July 2016, Ryo Yoshino filed an application in this Court for an extension of time and leave to appeal from a decision of the Federal Circuit Court that had refused to grant him an extension of five days to the 35 day period in which to make an application to the Federal Circuit Court in its original jurisdiction to review the decision of the Migration Review Tribunal given on 17 October 2013: Yoshino v Minister for Immigration [2014] FCCA 1976.
Background
The Tribunal had held that it did not have jurisdiction to consider Mr Yoshino’s application to review a decision of the delegate of the then Department of Immigration and Citizenship to refuse approval to his sponsor for a class UC visa. The Tribunal held that, without a sponsor, it had no power to grant the visa to him and therefore it was unable to review any decision of the Department because it had no jurisdiction to do so.
On 26 November 2013, Mr Yoshino applied to the Federal Circuit Court for review of the Tribunal’s decision, five days outside the statutory time limit set by s 477(1) of the Migration Act 1958 (Cth). He based his application on the power of the Federal Circuit Court to grant an extension of that 35 day period under s 477(2), if that court were satisfied that it was necessary, in the interests of the administration of justice, to make such an order.
The trial judge heard Mr Yoshino’s application on 19 August 2014. The sole ground on which he sought relief in the Court below was that he had not filed within the 35 day period because of financial difficulties in getting a lawyer. A solicitor represented Mr Yoshino before his Honour. The solicitor applied for a three week adjournment in order to raise a new ground of review that the Tribunal had erred in its decision because it failed to consider that Mr Yoshino’s failure to have an approved sponsor had been outside his control.
His Honour held that such an adjournment would have no utility because the proposed new ground lacked any merit. That was because whether or not an applicant such as Mr Yoshino for a subclass 457 visa could control if he had a sponsor, who would become an approved sponsor, was irrelevant to the criterion for the grant of a visa in cl 457.223(4) of Sch 2 of the Migration Regulations 1994 (Cth) that, at the time of the application for the visa, the applicant have an approved sponsor. His Honour held that any reliance upon the proposed new ground was bound to fail. He concluded that it was not in the interests of the administration of justice to grant Mr Yoshino’s application for an extension of time and so ordered.
This application
Mr Yoshino applied to this Court on 5 July 2016 for an extension of time and leave to appeal. On 19 July 2016, the Minister filed a notice of objection as to competency based on s 476A(3)(a). That provided that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that makes, or refuses to make, an order under s 477(2) of the Migration Act.
In his affidavit in support of his application, Mr Yoshino set out a number of matters of background, and among others, noted that he had applied for a protection visa, to which he had not received any response. He claimed that the Tribunal and the Federal Circuit Court denied his right to representation to assist him in presenting his case properly and adequately, and that His honour had failed to take into consideration important procedural errors made by the Department and Tribunal in assessing his application, due, among other reasons, to his own lack of legal expertise. He claimed, in the circumstances of that lack of legal expertise and financial resource, he had been denied procedural fairness.
This morning, Mr Yoshino asked for a further adjournment because he still had financial difficulties. He claimed that his migration agent, Mr Kang, had been giving him advice over the past two years, although he could only speak to him once every month or so when Mr Kang deigned to answer his telephone.
I asked Mr Yoshino what possible further benefit could be obtained from the grant of an adjournment and he was unable to articulate anything, particularly in light of the fact that, in the two years since his Honour’s decision to refuse the extension of time, he had produced nothing to indicate that he had any sort of case to call into question the Tribunal’s determination that it lacked jurisdiction to consider his application for review.
Consideration
In my opinion, Mr Yoshino’s application cannot be granted by reason of s 476A(3)(a) of the Migration Act. The Court has no jurisdiction to entertain these proceedings. Even if it did, the proceedings are hopeless and doomed to fail. They are an abuse of the process of the Court.
Mr Yoshino brought this application beyond any reasonable time and without any reasonable explanation for his delay. His grounds of appeal display no possible basis on which to call into question the decision of the trial judge.
For these reasons, I am of opinion that the application must be dismissed with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 24 November 2016
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