Federal Court of Australia

Sang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 518

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing the application for review of a migration decision be extended to 8 September 2022.

2.    The second respondent's decision dated 22 June 2022 that it had no jurisdiction to review the decision of a delegate of the first respondent dated 16 May 2022 be set aside.

3.    The matter be remitted to the second respondent to be determined according to law.

4.    The first respondent pay the applicant's costs fixed in the sum of $3,000 and those costs be paid directly to Mr Lettenmaier, pro bono counsel for the applicant, pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth).

THE COURT DECLARES THAT:

5.    The applicant's application for review of the decision of the first respondent's delegate dated 16 May 2022 filed in the second respondent on 3 June 2022 is valid.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant's visa was cancelled. His request that the cancellation be revoked was refused by a delegate of the Minister. He sought review in the Administrative Appeals Tribunal. He did so by sending a bundle of documents as an application for review. He took that step within the time prescribed for the bringing of any application to review. However, he did not use the required form of application and did not set out a separate statement of reasons for the application. Out of time, he filed the required form of application with a statement of reasons.

2    The Tribunal dismissed his application on the basis that it was out of time and the Tribunal had no power to extend time. In doing so, the Tribunal applied an approach that was consistent with the reasoning in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 183; (2022) 295 FCR 254.

3    The applicant applied to this Court for an extension of time in which to bring an application to review the decision of the Tribunal. He advanced two grounds. The first was to the effect that the notification of the delegate's decision had failed to conform with certain statutory requirements with the consequence that time for the bringing of any application for review by the Tribunal had not commenced to run (First Ground). The second was to the effect that by the materials that he had lodged with the Tribunal within the specified time he had made a valid application (Second Ground). As to the Second Ground, at the time of the application to this Court it was accepted by the applicant that the decision of the Full Court in Miller stood in the way of that ground being upheld.

4    The application for an extension of time to advance the First Ground was refused: Sang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1572. In circumstances where there was an appeal pending in the High Court in respect of the Full Court's decision in Miller, the application for an extension of time to advance the Second Ground was adjourned to a date to be fixed with a case management hearing to be listed after the delivery of the High Court's decision in the appeal.

5    The appeal to the High Court was upheld: Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13.

6    The Minister now accepts that the question whether there was a valid application by the applicant to the Tribunal was a jurisdictional fact. Further, that in the decision the subject of the present proceedings the Tribunal found implicitly that the applicant's application for review was invalid. The Minister also accepts that in accordance with the reasoning of the High Court in Miller the application made by the applicant to the Tribunal by delivering the bundle of documents was a valid application that was made within time. On that basis, the Minister accepts that jurisdictional error has been demonstrated. Accordingly, the Minister accepts that there should be an extension of time to advance the Second Ground, that the decision of the Tribunal should be set aside and that the matter should be remitted to be determined according to law. Further, the Minister accepts that there should be a declaration that the application for review of the decision of the delegate filed in the Tribunal on 3 June 2022 is valid.

7    Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. Further, there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: see my reasoning in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[6].

8    In written submissions filed before the outcome of the appeal to the High Court in Miller was known, the Minister opposed the application for an extension of time to bring proceedings in this Court on the basis that there was no explanation as to why the applicant was unable to make his application to this Court within time and that the merits of the proposed application were doubtful. I dealt with the principles as to an application for an extension of time in Sang. I expressed the view that this was a case in which a strong case on the merits would need to be demonstrated in order to obtain an extension of time.

9    In the circumstances I have outlined, I am satisfied that such a strong case has been demonstrated and that it is appropriate to grant the extension of time that is sought. I am also satisfied that the orders that the Minister accepts should be made are orders that it is appropriate to make on the application insofar as it relies upon the Second Ground.

10    As to costs, an order has been agreed and, on that basis, the proposed costs order should be made.

11    There will be orders accordingly.

Associate:

Dated:    16 May 2024