JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 718

Federal Court of Australia JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 718 Review of: JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4183

File number: QUD 444 of 2021

Judgment of: LOGAN J

Date of judgment: 21 June 2022

Catchwords: MIGRATION – application for issue of writs of certiorari and mandamus to Administrative Appeals Tribunal (Tribunal) – where Tribunal determined not to revoke mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) of applicant's Class XB Subclass 200 Refugee visa – where applicant's handwritten representations in application to Minister for revocation of mandatory cancellation disclosed that the applicant did not know his citizenship – where applicant understood that the consequences of non-revocation of the mandatory cancellation was that the applicant would be deported to Burundi – where Minister, Tribunal and applicant's representatives proceeded on assumption that applicant was a citizen of Burundi – where applicant did not make a positive statement that he was a citizen of Burundi – where applicant's evidence in chief in proceeding in the Tribunal disclosed applicant may be citizen of Tanzania – where Tribunal declined to accept evidence on the basis that to do so would contravene s 500(6H) of the Migration Act 1958 – where evidence before Tribunal left open question of the applicant's citizenship – where Tribunal failed to act on representations before it and also failed to make even the most cursory enquiry to follow up on the subject of citizenship – where failure constituted a failure to afford applicant procedural fairness and a failure by the Tribunal to exercise jurisdiction – where failure material – application granted PRACTICE AND PROCEDURE – application for extension of time – where originating application filed on 7pm of the last day of the period prescribed in s 477A of the Migration Act 1958 (Cth) – where operation of r 2.25(3) of the Federal Court Rules 2011 (Cth) meant originating application was taken to have been filed on next business day – where explanation for delay in filing provided – where Minister resisted extension of time on basis that application lacked reasonable prospects of success – where grounds pleaded in originating application were not so hopeless as to warrant refusal of extension of time – extension granted