Metera v Minister for Immigration and Citizenship [2008] FCA 1967

FEDERAL COURT OF AUSTRALIA

Metera v Minister for Immigration and Citizenship [2008] FCA 1967

Federal Court Rules O 52 r 10(2A) Migration Act 1958 (Cth) ss 476A(1)(b), 477A(2), 501(2), 501(6) Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited THOMAS MICHAEL METERA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL

NSD 1858 of 2008

BENNETT J

15 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1858 of 2008

BETWEEN: THOMAS MICHAEL METERA

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE OF ORDER: 15 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. 2. The applicant pay the first respondent's costs in the amount of $1500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1858 of 2008

BETWEEN: THOMAS MICHAEL METERA

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 15 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant seeks leave to appeal from a decision of a judge of this Court dated 4 November 2008 and the orders that his Honour made dismissing the applicant's application with costs (Metera v Administrative Appeals Tribunal [2008] FCA 1627). That application was an application for an extension of time in which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') which had been delivered on 31 July 2008. The decision of the Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant's Class TY Subclass 444 Special Category Visa under s 501(2) of the Migration Act 1958 (Cth) ('the Act'). 2 The primary judge noted that the applicant did not dispute that he did not pass the character test defined in s 501(6) of the Act. It was on the basis of that failure that the applicant's visa was cancelled pursuant to s 501(2) of the Act. 3 His Honour considered the basis upon which the application was brought and concluded that the Court would regard the application as one pursuant to s 476A(1)(b) of the Act. It followed that the application was made within the time limit prescribed by s 477A(2)(a) of the Act. Accordingly, his Honour was only required to consider under s 477A(2)(b) whether it would be in the interests of the administration of justice to grant an extension of time. In considering this issue, the primary judge turned to consider the draft grounds of appeal. There were two such grounds: 1. did the Tribunal fail to take into account a relevant consideration; and 2. did the Tribunal deny the applicant procedural fairness. 4 The primary judge treated those two grounds as dealing with the same subject matter, as there were no particulars specifically given of the alleged denial of procedural fairness. His Honour's findings concerned the question whether the Tribunal was obliged to take into account an Ombudsman report and the recommendations contained therein. His Honour concluded that the report was not a document required to be taken into consideration under Ministerial Direction No. 21 nor under any statutory or other provision. Accordingly, his Honour found that the Tribunal was not required to take the Ombudsman report into account in making its decision. 5 His Honour also dealt with an assertion that the applicant had a legitimate expectation that the Minister would take the Ombudsman report into account and that the recommendations contained therein would be considered by the Tribunal. His Honour concluded that the report could not give rise to such legitimate expectation.