Brar v Minister for Home Affairs [2018] FCA 1006

FEDERAL COURT OF AUSTRALIA

Brar v Minister for Home Affairs [2018] FCA 1006 File number(s): VID 605 of 2018

Judge(s): O'CALLAGHAN J

Date of judgment: 3 July 2018

Catchwords: MIGRATION – application for extension of time in which to review a decision of the respondent's delegate – where delegate of respondent refused to grant visa to applicant – where applicant's right of review prescribed by statute – application dismissed for want of jurisdiction

Legislation: Migration Act 1958 (Cth) ss 116, 476A, 501(1)

Date of hearing: 2 July 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 9

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr D Brown of the Australian Government Solicitor

Solicitor for the Respondent: Australian Government Solicitor

ORDERS VID 605 of 2018

BETWEEN: MANPREET SINGH BRAR

Applicant

AND: MINISTER FOR HOME AFFAIRS

Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 3 July 2018

THE COURT ORDERS THAT:

1. The application for an extension of time filed on 21 May 2018 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

O'CALLAGHAN J: 1 These reasons for judgment were made ex tempore at the hearing on 2 July 2018 and accompany the orders set out above. 2 On 14 March 2017, the applicant was told by the Department of Immigration and Border Protection that his Class TU Subclass 572 Student visa had been cancelled by a delegate of the respondent (the Minister) under s 116 of the Migration Act 1958 (Cth) (the Migration Act) on the ground that his presence in Australia may be a risk to the health or safety of an individual or individuals. 3 On 19 September 2017, the applicant applied for a Bridging E (Class WE) visa pending solution of an application for review of the decision to cancel his Class TU Subclass 572 Student visa. 4 On 3 October 2017, the applicant was provided with a notice of intention to consider refusal of his application for a bridging visa under s 501(1) of the Migration Act. 5 On 12 January 2018, a delegate of the Minister decided to refuse to grant to the applicant a visa under s 501(1) of the Migration Act. The applicant was informed via email of that decision to refuse to grant him a visa on 17 January 2018. 6 On 21 May 2018, the applicant (who was then, and is now, detained in immigration detention on Christmas Island), filed an application in this court dated 10 May 2018 for an extension of time seeking to review the decision to refuse to grant him a visa. 7 It is clear beyond argument that this court has no jurisdiction to entertain such an application. Section 476A(1) of the Migration Act provides that the Federal Court has original jurisdiction in relation to a migration decision in one of four circumstances. Relevantly, for the purposes of this case, s 476A(1) of the Migration Act provides that the court will only have original jurisdiction in relation to a decision made under s 501 of the Migration Act where the decision under s 501 is made by the Minister personally. It follows, in this case, that, because the relevant decision was made by a delegate of the Minister, the court has no jurisdiction to entertain an application for an extension of time of the type made here. 8 In oral submissions made this morning by the applicant with the benefit of an interpreter before me, I understood him to have said that he wishes to pursue an application before the Administrative Appeals Tribunal. That is not a matter that is relevant for the purposes of this hearing. 9 For the reasons given above, I am bound to dismiss the application for extension of time filed on 21 May 2018 as incompetent. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.