Australian Immigration Daily News

How unusual is it for a judge of the Federal Circuit Court to call for reform of the migration legislation?

Or to include in the reasons for decision criticism of the inflexibility of the provisions which prevent the Tribunal from extending the deadline for filing an application for merits review of a refusal of a visa application, or other decision of the Department?

Would you agree that it would be safe to say “very”? Or even “very very!!!”?

Yet that is what happened in a decision by Judge Driver in a recent case, Walia v Minister for Immigration & Anor (2018) FCCA 1357 (25 May 2018).

The context of Judge Driver’s observation was a case in which an “onshore” application for a Partner visa, a “combined” Subclass 820/801 visa application had been refused.

The application was refused in the first instance by a delegate of the Minister on the basis that the delegate was not satisfied that the applicant was the “spouse” of his sponsoring wife (to whom he was lawfully married) within the meaning of section 5F of the Migration Act, and for the further reason that the applicant did not satisfy Schedule 3  criteria because the application for the Partner visa had not been made within 28 days of the day that his previous substantive visa had ceased.

After this refusal, the applicant sought review in the Tribunal, which decided that there were compelling reasons for not applying the Schedule 3  criteria, due to the fact that the sponsor’s father was suffering from acute leukaemia.

On remittal back to the Department, a different delegate again refused the application, again on the basis that the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of section 5F.

This time around, the application to the Tribunal for review of the delegate’s decision was not lodged within the 21-day mandatory period. It was 5 days late.

So, the Tribunal, having determined that the application for review was not timely filed, proceeded to dismiss it.

The applicant then sought further review in the Federal Circuit Court. He made submissions that the Tribunal should have granted him an extension of time for the filing of the application for merits review, and submitted that the reason for the delay in filing was financial hardship – namely that the applicant did not have sufficient savings to pay the filing fee to the Tribunal.

Despite this plea from the applicant, Judge Driver concluded that the Tribunal had not committed jurisdictional error in concluding that it did not have power to extend the filing deadline. Judge Driver considered that he was bound by the decision of the High Court in SZJQC v Minister that the Tribunal has no power to extend the deadline for the filing of an application for review, “no matter how small the delay or compelling the circumstances, or whatever the reason for the default.”

Nonetheless, Judge Driver took the opportunity of this case to criticize the fact that the Tribunal cannot extend the filing deadline.

Judge Driver made these observations in Walia  (at (30) of the reasons):

“It appears that once again, the inflexible regime within which the Tribunal operates which prevents it from extending the time for a review application has worked an injustice. I have, on many occasions over more than 10 years, drawn attention to the harsh consequences of the inability of the Tribunal and its predecessors to extend time limits. While those calls for law reform have proved entirely fruitless, I make the same call today. Apart from the harshness of the inflexible legal regime, the various time limits prescribed under the Migration Act are not only hard to follow but hard to fathom”.

Judge Driver went on to observe that there are variable time limits for the filing of an application for review, ranging from 2 to 70 days, and that he could see “no logical reason for this”., or for the fact that the Act allows 28 days to seek review of the refusal of a protection visa but only 21 days to seek review of other types of visas, or for the fact that while section 347 appears on its face to allow 28 days to seek review of on shore visa applications other than protection visas, that regulation 4.10 shortens this period  to only 21 days (one has to wonder if that regulation is valid given its inconsistency with the Act – in fact it would be very interesting to see how the courts would react to such a challenge!!!).

While it does not appear that any change to the inflexibility of the filing deadline is likely to happen any time soon, if ever, it surely is intriguing and praiseworthy to see a judge commenting critically about this feature of the legislation on the basis that it inflicts hardship and injustice on applicants!