Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541

FEDERAL COURT OF AUSTRALIA

Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541 MD ABDULLAH AL MAMUN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 540 OF 2007

COWDROY J

23 APRIL 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2007

BETWEEN: MD ABDULLAH AL MAMUN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J DATE OF ORDER: 23 APRIL 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The Notice of Appeal filed on 27 March 2007 be dismissed. 3. The applicant pay the costs of the first respondent in the sum of $750.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2007

BETWEEN: MD ABDULLAH AL MAMUN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE: 23 APRIL 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By Notice of Appeal filed on 27 March 2007 the applicant appeals from the whole of the decision of Federal Magistrate Lloyd-Jones given on 8 March 2007 dismissing an Application for review of a decision of the Migration Review Tribunal ('the Tribunal') made on 29 August 2006. Such Application was dismissed on the basis that it was incompetent as it was filed outside the time prescribed by s 477 of the Migration Act 1958 (Cth) ('the Act').

Facts 2 The applicant, a citizen of Bangladesh held a 572 Vocational Education and Training Sector visa which was issued on 19 February 2003 and expired on 15 March 2005. The applicant applied for a further visa on 5 June 2006 but this application was refused by a delegate of the Minister for Immigration and Citizenship ('the delegate') on 12 July 2006 on the basis that the applicant did not satisfy cl 572.211(3)(c)(i) of Schedule 2 to the Migration Regulations 1994 ('the Regulations'). Such clause relevantly provides that the applicant does not satisfy the requirements of the subclause unless: '(c) the application is made within 28 days (or within such period specified by Gazette Notice) after: (i) the day when that last substantive visa ceased to be in effect.' 3 On 17 July 2006 the applicant applied to the Tribunal for review of the delegate's decision. On 29 August 2006 the Tribunal affirmed the decision of the delegate. The Tribunal found that the applicant had not satisfied cl 572.211(3)(c) of Schedule 2 of the Regulations as he had failed to make an application for a visa within 28 days of the expiration of his last substantive visa. 4 By application dated 21 December 2006, the applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. On 20 February 2007 the Minister filed a response to the application claiming that it should be dismissed because the application was not made within the time limit prescribed by s 477 of the Act and because the application did not disclose a jurisdictional error by the Tribunal. On the same day the Minister filed a notice of objection to competency also based on the ground that the application was filed outside of the time limit imposed by s 477(1) and s 477(2) of the Act. 5 On 8 March 2007 Lloyd-Jones FM dismissed the application finding that the application was incompetent because it had been filed outside the time prescribed for filing such applications under s 477 of the Act and because the Tribunal's decision did not reveal any jurisdictional error. His Honour made the following relevant findings: '8. There is no dispute that the Tribunal decision was made on 29 August 2006 and the applicant was notified of that decision on that day. The application to the Federal Magistrates Court was made on 21 December 2006. That is a period of 114 Days, which is clearly outside of the 84 day period within which the Court may extend the time pursuant to s.477(2) of the Act. The application was not filed within the 84 day period from the notification. The 84 day period expired on 21 November 2006. Consequently, the application was not made within the statutory time limit imposed by s.477(2) of the Act. … 11. The Tribunal decision on its face, does not reveal any jurisdictional error made by the Tribunal member in it decision making process. The grounds of review raised in the applicant's application cannot be sustained. As the Tribunal member quite clearly states in the decision, after the expiry of the applicant's last substantial visa, he took no action to lodge a renewal, nor did he approach the Department or anybody at the educational institution to discuss his situation, or the dilemma that he had in respect of a new application. Rather, he chose to remain in the community until detected by the authorities and placed in Detention [sic]. Only at this time did he commence the process of enquiry and subsequent application for the renewal of his visa status. I am also satisfied that the applicant has no prospect of success in respect to a challenge to the Tribunal decision. Consequently, the application should be dismissed.' 6 This decision is the subject of the Notice of Appeal to this Court.