JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466

JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466

The extension of time was refused because the applicant required an extension of 530 days, gave no adequate explanation for why the Au type error was not raised earlier, and the proposed ground of review did not have sufficiently strong prospects of success. Read fairly, the Tribunal quoted the correct statutory test, posed the correct question whether there was another reason why the cancellation should be revoked, and likely used the term discretion in the sense of an evaluative assessment rather than as a true discretion. The serious consequences for the applicant did not make it necessary in the interests of justice to grant the extension.

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Application Under S 477 A(2) of the Migration Act 1958 (cth) for an Extension of Time Within Which to Apply for Judicial Review of a Decision of the Administrative Appeals Tribunal / Application for Extension of Time Dismissed
Outcome
Application dismissed with costs.
Legal Topics
['extension of Time' 'judicial Review' 'mandatory Cancellation of Visa' 'revocation Under S 501 Ca(4)' 'jurisdictional Error' 'anshun Estoppel' 'abuse of Process']
['practice and Procedure' 'migration' 'administrative Law'] ['extension of Time' 'judicial Review' 'mandatory Cancellation of Visa' 'revocation Under S 501 Ca(4)' 'jurisdictional Error' 'anshun Estoppel' 'abuse of Process']

Case Brief

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Procedural Posture

Application Under S 477 A(2) of the Migration Act 1958 (cth) for an Extension of Time Within Which to Apply for Judicial Review of a Decision of the Administrative Appeals Tribunal / Application for Extension of Time Dismissed

Legal Issues

  1. 1 ['Whether it was necessary in the interests of justice under s 477A(2) of the Migration Act 1958 (Cth) to extend time for the applicant to bring a proposed second judicial review application.' 'Whether the applicant adequately explained the 530 day delay in seeking judicial review.' 'Whether the proposed ground that the Tribunal misunderstood s 501CA(4) by treating the power as a discretion rather than an evaluative assessment had sufficiently strong merits.' 'Whether the serious human consequences for the applicant supported granting an extension of time.' 'Whether it was necessary to consider Anshun estoppel.']

Ratio Decidendi

The extension of time was refused because the applicant required an extension of 530 days, gave no adequate explanation for why the Au type error was not raised earlier, and the proposed ground of review did not have sufficiently strong prospects of success. Read fairly, the Tribunal quoted the correct statutory test, posed the correct question whether there was another reason why the cancellation should be revoked, and likely used the term discretion in the sense of an evaluative assessment rather than as a true discretion. The serious consequences for the applicant did not make it necessary in the interests of justice to grant the extension.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application for an extension of time is dismissed.' "The applicant is to pay the first respondent's costs, as agreed or taxed."]