Kumari, in the matter of an application for Writs of Prohibition, Mandamus & Certiorari against the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 882

Kumari, in the matter of an application for Writs of Prohibition, Mandamus & Certiorari against the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 882

The applicant's proposed challenge could not succeed. The Tribunal found that the applicant had not held a substantive visa since 31 July 1997 and did not apply for the relevant visa until 30 November 1998, more than 12 months later, so she did not satisfy Sch 3 criterion 3002 and therefore did not satisfy item 806.212(a). Considering whether the application was validly made could not have changed the outcome: if validly made, it was out of time; if not validly made, the Tribunal had no power to consider it. Criterion 3004 was not made applicable by item 806 and did not override or detract from criterion 3002. Because the Tribunal was bound to reject the application, there was no basis to...

Jurisdiction
Australia
Judgment Date
30 June 2003
Procedural Posture
Application for Writs of Prohibition, Mandamus and Certiorari Concerning a Migration Review Tribunal Decision / On Remittal From the High Court of Australia; Application to Enlarge Time for Certiorari and Mandamus and Dismissal Application
Outcome
Application to enlarge time refused; application dismissed with costs.
Legal Topics
['constitutional Writs' 'extension of Time' 'migration Review Tribunal' 'subclass 806 Visa' 'schedule 3 Criteria']
['administrative Law' 'migration Law'] ['constitutional Writs' 'extension of Time' 'migration Review Tribunal' 'subclass 806 Visa' 'schedule 3 Criteria']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Writs of Prohibition, Mandamus and Certiorari Concerning a Migration Review Tribunal Decision / On Remittal From the High Court of Australia; Application to Enlarge Time for Certiorari and Mandamus and Dismissal Application

Legal Issues

  1. 1 ['Whether time should be enlarged for the applicant to seek certiorari and mandamus in respect of the Tribunal decision.' 'Whether the proposed challenge to the Tribunal decision had any arguable prospect of success.' 'Whether the Tribunal erred by not directing attention to whether the visa application was validly made for the purposes of Sch 3 criterion 3002.' "Whether Sch 3 criterion 3004 applied to the applicant's visa application."]

Ratio Decidendi

The applicant's proposed challenge could not succeed. The Tribunal found that the applicant had not held a substantive visa since 31 July 1997 and did not apply for the relevant visa until 30 November 1998, more than 12 months later, so she did not satisfy Sch 3 criterion 3002 and therefore did not satisfy item 806.212(a). Considering whether the application was validly made could not have changed the outcome: if validly made, it was out of time; if not validly made, the Tribunal had no power to consider it. Criterion 3004 was not made applicable by item 806 and did not override or detract from criterion 3002. Because the Tribunal was bound to reject the application, there was no basis to...

Court Disposition

Application to enlarge time refused; application dismissed with costs.

Orders

  • ['The application to enlarge the time for the commencement of the proceeding in the High Court of Australia for certiorari and mandamus be refused.' 'The application be dismissed.' "The applicant pay the respondents' costs of the proceeding, including the costs incurred in the High Court of Australia."]