Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 89

FEDERAL COURT OF AUSTRALIA

Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 89 File number: VID 1297 of 2019

Judge: O'BRYAN J

Date of judgment: 7 February 2020

Catchwords: MIGRATION – application for extension of time to seek judicial review of a decision of the respondent refusing to grant the applicant a partner visa – objection to competency of application – application dismissed for lack of competency

Legislation: Migration Act 1958 (Cth) ss 5, 474, 476A Federal Court Rules 2011 (Cth) r 31.24

Date of hearing: 7 February 2020

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: The Applicant appeared in person with the aid of an interpreter

Solicitor for the Respondent: Ms E Elliott of Sparke Helmore

ORDERS VID 1297 of 2019

BETWEEN: QUENETE CHAUQUE Applicant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

JUDGE: O'BRYAN J DATE OF ORDER: 7 February 2020

THE COURT ORDERS THAT:

1. The respondent's objection to competency is upheld. 2. The applicant's originating application for an extension of time is dismissed. 3. The applicant is to pay the respondent's costs of and incidental to the originating application and the respondent's notice of objection to competency. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'BRYAN J:

Introduction 1 The applicant is presently a detainee of Yongah Hill Immigration Detention Centre in the State of Western Australia. 2 By application filed on 25 November 2019, the applicant sought an extension of time in which to lodge an application for judicial review of a decision of the respondent (the Minister) made under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the applicant a partner (temporary) and partner (residence) visa (visa refusal decision). By the application for review, the applicant seeks an order from this Court that the visa refusal decision be quashed. The application for an extension of time was supported by two affidavits of the applicant sworn 19 November 2019. One of the affidavits exhibited the decision record for the visa refusal decision which had been made more than 4 years ago on 12 October 2015. 3 On 23 January 2020, the Minister filed a notice of objection to competency of the application pursuant to rule 31.24(1) of the Federal Court Rules 2011 (Cth), seeking the dismissal of the primary application. The notice is supported by two affidavits of Mr Andrew Cunynghame, a solicitor employed by Sparke Helmore representing the Minister. The first, affirmed 31 January 2020, exhibited an email sent by Sparke Helmore on 23 January 2020 to the applicant's email address stated in his application, inviting the applicant to discontinue these proceedings because the Court lacked jurisdiction to hear the application. The second, affirmed 6 February 2020, exhibited: (a) a copy of a letter from the Minister's delegate to the applicant dated 12 October 2015 notifying the applicant of the visa refusal decision in accordance with s 66 of the Act; (b) a copy of an application to the Administrative Appeals Tribunal (Tribunal) made by the applicant on 29 January 2016 seeking review of the visa refusal decision; and (c) a copy of the decision of the Tribunal dated 17 March 2016 dismissing the application for review on the basis that it did not have jurisdiction to review the matter (as the applicant had not paid the prescribed fees within the prescribed time and no determination had been made that the fee should be reduced). 4 For the reasons that follow, I uphold the objection to competency and dismiss the application for an extension of time.