Aulakh v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicants pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Federal Circuit Court: see Aulakh v Minister for Immigration and Border Protection [2016] FCCA 2802. The Federal Circuit Court ("the FCC") had dismissed an application by the applicants for an extension of time within which to seek judicial review of a decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal - the second respondent) ("the Tribunal"). The applicants are spouses. 2 An extension of time was required because the applicants' application for judicial review was made some five months after the Tribunal's decision was handed down. Section 477(1) of the Migration Act 1958 (Cth) ("the Act") required that any such application had to be made to the FCC within 35 days of the date of the Tribunal's decision. 3 By s 477(2) of the Act the FCC was empowered to enlarge time if certain preconditions were met. The subsection provides: "(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order." 4 Prior to the hearing of their application for enlargement of time the applicants were directed by the FCC to file and serve further affidavit evidence supporting their application. They did not comply with this direction: see [3] of the FFC's reasons. The only explanation which was before the FCC was found in the grounds section of the application in which they asserted that their agent had "never provided any requested documents or informed [us] about the decision made by the Tribunal": at [2]. This was supplemented with evidence of the first applicant given from the bar table that repeated in substance what she had said in an earlier affidavit filed on the date of her application to the FCC: at [1], [4]. 5 Apart from the complaint about the conduct of their agent, the only substantive ground appearing in the applicants' application to the FCC was cast at a very general level. That ground was extracted at [2] of the FCC's reasons and provided as follows: "The member [of the Tribunal] did not consider my application based on my circumstances at the time of my visa application along with applicable laws at the time and is there affected by jurisdictional errors." 6 No particulars were provided. 7 The primary judge was not satisfied that it was necessary in the interests of the administration of justice to enlarge time. The judge accepted that no particular prejudice had been pointed to by the Minister, but noted that this was not itself a ground for extending time (at [9]). The primary judge was concerned at the long delay in seeking to commence the proceeding (at [7]), the absence of any reasonable or adequate explanation for the delay (at [7]-[8]) and the absence of any reasonably arguable grounds of judicial review (at [19]). For these reasons his Honour dismissed the application. 8 No appeal lies from this decision: see s 476A(3)(a) of the Act. Judicial review is, however, available provided that the applicants can demonstrate jurisdictional error on the part of the primary judge: see Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at 58-59; [2013] FCAFC 139 at [10]-[11] (Rares, Perram and Wigney JJ). 9 Only one potentially relevant ground appears in the applicants' application to this Court. That is ground A. It reads: "A. The decision of the Federal Circuit Court was made without jurisdiction or is affected by an error of jurisdiction, by affirming the decision of the tribunal. Particulars A copy of the decision of the Federal Circuit Court dated 6 October, 2016 has not been provided by the Court to the applicants. The applicants on receiving a copy of that decision will then particularise their grounds of appeal." Despite saying that they would do so, the applicants have not provided any particulars of the ground. Nor have they filed any written submissions. 10 The first applicant appeared in person at the hearing this morning. She had the assistance of an interpreter. The second applicant did not appear. The first applicant said that this was because of childcare responsibilities. 11 When asked to identify any jurisdictional errors on the part of the primary judge the first applicant's response was that she was unable to point to any serious legal error on the part of the primary judge. She emphasised that the applicants had been prejudiced by the failure of their agent to inform them of the Tribunal's decision and the reasons for it in a timely manner. 12 I have carefully examined the reasons for decision of the primary judge. I can discern no reviewable error. The reasons carefully examine the material and arguments which were before the Court and explain clearly why it was that the primary judge was not satisfied that the interests of justice required him to enlarge time. 13 There is no basis for this Court to intervene. 14 The application must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.