FEDERAL COURT OF AUSTRALIA
Trivedi v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1455
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IN THE FEDERAL COURT OF AUSTRALIA |
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First Applicant NIRAV YOGESHBHAI TRIVEDI Second Applicant DARSH NIRAVBHAI TRIVEDI Third Applicant |
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AND: |
MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application for an extension of time within which to file a notice of appeal be allowed.
2. The Court deems the draft notice of appeal, attached to the application for extension of time, to be a notice of appeal filed on 14 November 2013.
3. The hearing of the appeal be referred to a Full Court.
4. A referral certificate be issued under r 4.12 of the Federal Court Rules 2011 to enable the applicants to obtain legal assistance in respect of their appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1576 of 2013 |
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ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
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BETWEEN: |
BINA TRIVEDI NIRAV YOGESHBHAI TRIVEDI Second Applicant DARSH NIRAVBHAI TRIVEDI Third Applicant |
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AND: |
MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
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JUDGE: |
RANGIAH J |
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DATE: |
14 NOVEMBER 2013 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The applicants have sought an extension of time within which to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011. The applicants seek to appeal against a judgment of the Federal Circuit Court given on 17 July 2013 dismissing the application for constitutional writs in respect of a decision of the Migration Review Tribunal.
2 The application before the Federal Circuit Court was concerned with the interpretation of Public Interest Criterion 4020 (“the Criterion”), a criterion that must be satisfied under the Migration Regulations 1994 (Cth) for the grant of certain classes of visas. The Criterion requires that there be no evidence before the Minister that the applicant has given or caused to be given information that is false or misleading in any material particular in relation to the application for the visa.
3 The applicants argued that information would not be false or misleading for the purposes of the Criterion if they did not intend to mislead or deceive by giving that information. The Minister argued that the applicants’ intention and knowledge are irrelevant to the question of whether the information is false or misleading. The Federal Circuit Court accepted the Minister’s construction of the Criterion.
4 I consider that the applicants have an arguable case that the application to the Federal Circuit Court was wrongly decided. The applicants’ other proposed grounds of appeal have no merit. The applicants’ application for an extension of time was filed only one day outside the 21 day time limit imposed by r 36.03 of the Federal Court Rules. In these circumstances, I will grant the extension of time sought by the applicants.
5 The Minister indicated that the issue involved in the appeal is one that is not uncommonly encountered and that the decision upon the appeal will impact upon a significant number of cases in the future. I consider that it is appropriate for the appellate jurisdiction of the Court to be exercised by a Full Court. I also consider that it is appropriate for the applicants to be referred to a lawyer for legal assistance, pursuant to r 4.12 of the Federal Court Rules.
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I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. |
Associate:
Dated: 21 January 2014
