Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853

Tanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 853

Although time to appeal was extended because the delay was only one day and caused no prejudice, the appeal was dismissed because remittal would be futile. The primary judge had found that even if the Tribunal had jurisdiction to hear the review application, it was bound to fail because the applicant did not hold a substantive visa at the time of his Medical Treatment (Class UB) visa application, an essential criterion identified by the delegate. Therefore, any jurisdictional error concerning the fee reduction issue would not justify relief.

Jurisdiction
Australia
Judgment Date
21 August 2013
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision; Application for Extension of Time to File Notice of Appeal / Extension of Time Application and Appeal
Outcome
Extension of time to file the notice of appeal allowed; appeal dismissed with costs.
Legal Topics
['medical Treatment (class Ub) Visa' 'migration Review Tribunal Application Fee' 'fee Reduction for Severe Financial Hardship' 'validity of Tribunal Review Application' 'extension of Time to Appeal' 'futility of Relief']
['migration Law' 'administrative Law' 'federal Civil Procedure'] ['medical Treatment (class Ub) Visa' 'migration Review Tribunal Application Fee' 'fee Reduction for Severe Financial Hardship' 'validity of Tribunal Review Application' 'extension of Time to Appeal' 'futility of Relief']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Dismissing an Application for Judicial Review of a Migration Review Tribunal Decision; Application for Extension of Time to File Notice of Appeal / Extension of Time Application and Appeal

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to file a notice of appeal one day out of time.' "Whether the Migration Review Tribunal erred by not reviewing or reconsidering a Tribunal officer's refusal to reduce the prescribed review application fee under reg 4.13(4) of the Migration Regulations 1994 (Cth)." 'Whether the Tribunal committed jurisdictional error in finding that it had no jurisdiction because the prescribed fee had not been paid within a reasonable time.' 'Whether any relief would be futile because the visa review application was bound to fail on the substantive visa criterion.']

Ratio Decidendi

Although time to appeal was extended because the delay was only one day and caused no prejudice, the appeal was dismissed because remittal would be futile. The primary judge had found that even if the Tribunal had jurisdiction to hear the review application, it was bound to fail because the applicant did not hold a substantive visa at the time of his Medical Treatment (Class UB) visa application, an essential criterion identified by the delegate. Therefore, any jurisdictional error concerning the fee reduction issue would not justify relief.

Court Disposition

Extension of time to file the notice of appeal allowed; appeal dismissed with costs.

Orders

  • ['The title of the first respondent is amended to read: "Minister for Immigration, Multicultural Affairs and Citizenship".' 'The application for an extension of time to file the notice of appeal is allowed.' 'The appeal is dismissed.' "The applicant is to pay the first respondent's costs."]