Zubair v Minister for Immigration and Citizenship

[2013] FCA 422

FEDERAL COURT OF AUSTRALIA

Zubair v Minister for Immigration and Citizenship [2013] FCA 422

Citation:		Zubair v Minister for Immigration and Citizenship [2013] FCA 422
Parties:		MUHAMMAD ZUBAIR v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		VID 119 of 2013
Judge:		TRACEY J
Date of judgment:		3 May 2013
Catchwords:		MIGRATION – Application for extension of time within which to file notice of appeal – unsuccessful attempts to contact applicant residing in Pakistan – application for summary dismissal – whether Administrative Appeals Tribunal had jurisdiction to deal with application for review.
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) – ss 500, 338
Date of hearing:	3 May 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Appellant:	No appearance
Counsel for the Respondent:	Mr B Petrie
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 119 of 2013

BETWEEN:	MUHAMMAD ZUBAIR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	3 MAY 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Secretary, Department of Immigration and Citizenship, be removed as a party to the proceeding.

2.The Minister for Immigration and Citizenship be named as the first respondent to the proceeding.

3.The application for an extension of time to file a notice of appeal, filed on 26 February 2013, be summarily dismissed.

4.The applicant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 119 of 2013

BETWEEN:	MUHAMMAD ZUBAIR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	TRACEY J
DATE:	3 MAY 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Mr Muhammad Zubair has sought to appeal to the Court and, for that purpose, applied for an extension of time within which to commence the proceeding.  He seeks to appeal from a decision of the Administrative Appeals Tribunal (“the AAT”).  The AAT had held that it did not have jurisdiction to entertain an appeal which had been lodged in that tribunal by Mr Zubair. 

2. Mr Zubair had sought to appeal from a decision of a delegate of the Minister for Immigration and Citizenship to refuse an application made by him for a tourist (class TR) visa. 

3. The application was made in Pakistan where Mr Zubair resides.  The Tribunal rejected the application on the ground that it had no power to entertain the appeal.

4. The proceeding first came before me on 5 April 2013.  Although notified of the hearing on more than one occasion, no contact was received from Mr Zubair.  At the hearing, counsel for the Secretary sought an order that the application be dismissed for want of prosecution.  I directed that my associate contact Mr Zubair by email and advise him that I proposed to make the orders sought unless he made contact with the Court within 14 days.  Mr Zubair, in due course, did make contact with my chambers and, as a result, the matter was listed for a further hearing this morning. Mr Zubair was notified of this listing on more than one occasion and was informed that the Court would contact him by telephone link on the number he had previously provided, unless otherwise advised.

5. Repeated attempts to contact Mr Zubair this morning by means of a telephone link so that he could participate in the hearing have proved to be unsuccessful.  In the meantime, the solicitor acting for the Secretary had written to Mr Zubair, advising him that, at the hearing today, various orders would be sought and that, in particular, an order would be sought that the proceeding be summarily dismissed.  The solicitor’s letter outlined the reasons that were to be advanced in support of that application. 

6. I am conscious that Mr Zubair is acting under a number of significant disabilities.  He is seeking to prosecute his applications to this Court from Pakistan and in doing so, is confronting significant communication difficulties, as the unsuccessful attempts made this morning to contact him bear witness.

7. I have, however, determined to proceed to deal with the application because I am in no doubt that the decision of the AAT was correct and that, accordingly, there can be no reasonable prospect of Mr Zubair successfully prosecuting his application in this Court. 

8. The AAT is a tribunal of limited jurisdiction.  It can only review decisions, made under Commonwealth legislation, if it has power to do so specifically conferred on it by that legislation or by other enactments, such as the Administrative Appeals Tribunal Act 1975 (Cth).

9. I have examined the relevant legislation. The power of the AAT to review decisions made by the Minister or a delegate of the Minister are extremely limited. They are conferred primarily by s 500 of the Migration Act 1958 (Cth) (“the Migration Act”). That section does not confer a power to hear appeals from a delegate of the Minister where the delegate has refused an application for a visa of the kind that Mr Zubair is seeking.

10. An alternative route by which a matter might have come to the AAT would be a reference from the Migration Review Tribunal (“the MRT”). The MRT has limited powers under Part 5 of the Migration Act.

11. One of those powers is to refer a matter that is before the MRT for consideration by the AAT. Before any such referral can occur, however, a matter must properly be before the MRT. That tribunal’s jurisdiction is conferred by Part 5 of the Migration Act in respect of what are known as “MRT - reviewable decisions”. Those decisions are identified in s 338 of the Migration Act and they do not include decisions of the present kind.

12. As a result, even had Mr Zubair made his application to the MRT, that tribunal would not have had jurisdiction and could not have referred the matter to the AAT.

13. There is, therefore, no useful purpose to be served in this application for an enlargement of time being further adjourned in this Court.  It should summarily be dismissed. 

14. Orders should also be made substituting the Minister for Immigration and Citizenship for the Secretary of the Department of Immigration and Citizenship who Mr Zubair named as the first respondent in his application to this Court.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       3 May 2013