Chauhan v Minister for Immigration

[2013] FCCA 1741

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAUHAN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1741

Catchwords:
PRACTICE AND PROCEDURE – Refusal of an extension of time to bring judicial review application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477

Applicant: ROHIT SINGH CHAUHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2418 of 2013

Judgment of: Judge Driver

Hearing date: 29 October 2013

Delivered at: Sydney

Delivered on: 29 October 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Mr R Ray

Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), an extension of time for the filing of the application is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2418 of 2013

ROHIT SINGH CHAUHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a purported application filed on 8 October 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 22 August 2013. The Tribunal found that it did not have jurisdiction in the matter before it because of the late filing of the review application. The application before this Court is also late. As is pointed out in the Minister’s response, filed on 17 October 2013, pursuant to s.477(1) of the Migration Act 1958 (Cth) (Migration Act), the judicial review application should have been filed by 26 September 2013. The applicant is about 12 days late. It is open to the Court to extend the time for the filing of the application pursuant to s.477(2) of the Migration Act. That discretion was not available to the Tribunal.

2. The judicial review application is supported by an affidavit by Mr Chauhan which simply states that he is the applicant in the proceedings and that whatever he has stated is all true.  The application annexes a medical certificate from Dr James Ferguson of Eastwood which states that Mr Chauhan contracted a gastric influenza on Monday, 23 September 2013 and was, in consequence, unable to submit his visa renewal until 30 September 2012 (or possibly 2013).  That is, on its face, a confusing document, given the apparent confusion in dates and process as between the visa process and the judicial review process.  The handwriting on the document is poor and contains at least one handwritten amendment.  I have not been able to check the authenticity of the medical certificate.  The solicitor for the Minister has also pointed out that while the medical certificate refers to a gastric influenza infection, Mr Chauhan himself has referred in his application requesting an extension of time to a respiratory problem.  In any event, it is apparent that, on the basis of the material submitted by the applicant, he had not less than 31 days available to him to submit his judicial review application.

3. Mr Chauhan has not appeared for today’s hearing.  The matter has been called twice.  There is no explanation for his non-attendance.

4. It would be open to me to dismiss the application on account of that non-attendance.  However, in my view, the Court must first determine the competence of the application.  Unless time is extended for the filing of the application, the Court has no jurisdiction in relation to it.

5. The explanation offered by Mr Chauhan for his delay in coming to Court is not, on its face, persuasive.  Even if he was unwell at the end of the appeal period, that does not explain his failure to do anything to initiate the judicial review proceedings before he became unwell.  I also note that he was late in bringing his review application to the Tribunal which lead to the Tribunal’s finding that it lacked jurisdiction.

6. In his judicial review application, Mr Chauhan asserts that the Tribunal did not look at the claim he put and failed to assess the claim.  If he is referring to his application for a student visa, that is correct, because the Tribunal found that it lacked jurisdiction.

7. Mr Chauhan also asserts that the Tribunal did not look at his condition which is a reference to his explanation that he was seriously depressed due to family deaths in India.  That ground presupposes that the Tribunal had some discretion to extend time for the filing of a review application.  It does not.  Importantly, the application raises no issue about the notification of the delegate’s decision to refuse to grant the applicant the temporary student visa that he sought.  If there is no issue with the notification of that decision, I cannot see that there would be any arguable case of jurisdictional error by the Tribunal.

8. I find that Mr Chauhan has failed to provide a satisfactory explanation for his delay in bringing his judicial review application.  Further, Mr Chauhan has failed in that proposed application to advance any arguable case of jurisdictional error by the Tribunal.

9. Accordingly, I refuse Mr Chauhan’s request for an extension of time, pursuant to s.477(2) of the Migration Act. It follows that the judicial review application is incompetent.

10. In consequence of the Court’s finding that the application is incompetent, the Minister seeks an order for costs in accordance with the court scale.  I agree that an order for costs would be appropriate in the circumstances.

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules.

12. I will direct that the Minister cause the orders made today to be entered and that the Minister cause a sealed copy of those orders to be forwarded to the applicant at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 30 October 2013