Alam v Minister for Home Affairs [2019] FCA 389

Alam v Minister for Home Affairs [2019] FCA 389

Leave to appeal was refused because the proposed grounds raised no sufficient doubt about the Federal Circuit Court's decision. The primary judge considered the applicant's explanation for non-appearance and the merits of reinstatement, and there was no arguable denial of natural justice. The Tribunal had invited and considered submissions on jurisdiction, but the applicant was taken to have been notified of the delegate's decision on 24 November 2017 and lodged his review application after the 21 day prescribed period expired on 15 December 2017. The Tribunal therefore had no jurisdiction and no power to extend time, notwithstanding any alleged oral advice that a 28 day period applied.

Jurisdiction
Australia
Judgment Date
11 March 2019
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Orders of the Federal Circuit Court Dismissing an Application to Reinstate a Judicial Review Proceeding
Outcome
The application for leave to appeal was dismissed with costs.
Legal Topics
['leave to Appeal' 'judicial Review' 'tribunal Jurisdiction' 'notification of Visa Refusal Decision' 'time Limit for Merits Review' 'procedural Fairness']
['administrative Law' 'migration Law'] ['leave to Appeal' 'judicial Review' 'tribunal Jurisdiction' 'notification of Visa Refusal Decision' 'time Limit for Merits Review' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Orders of the Federal Circuit Court Dismissing an Application to Reinstate a Judicial Review Proceeding

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from interlocutory orders dismissing the applicant's reinstatement application." 'Whether the Federal Circuit Court denied the applicant natural justice or ignored legal issues when dismissing the reinstatement application.' 'Whether the Administrative Appeals Tribunal denied procedural fairness or acted contrary to law in finding it had no jurisdiction because the review application was lodged out of time.' 'Whether alleged oral advice that the applicant had 28 days to lodge an application could affect the statutory 21 day time limit or empower the Tribunal to extend time.']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds raised no sufficient doubt about the Federal Circuit Court's decision. The primary judge considered the applicant's explanation for non-appearance and the merits of reinstatement, and there was no arguable denial of natural justice. The Tribunal had invited and considered submissions on jurisdiction, but the applicant was taken to have been notified of the delegate's decision on 24 November 2017 and lodged his review application after the 21 day prescribed period expired on 15 December 2017. The Tribunal therefore had no jurisdiction and no power to extend time, notwithstanding any alleged oral advice that a 28 day period applied.

Court Disposition

The application for leave to appeal was dismissed with costs.

Orders

  • ['The application for leave to appeal filed on 30 July 2018 be dismissed.' "The applicant pay the first respondent's costs as agreed or taxed."]