Gill v Minister for Immigration & Border Protection & Anor

[2014] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1929

Catchwords:

MIGRATION – Review of decision by Migration Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of the administration of justice to extend time – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth) ss.417, 477
Migration Regulations 1994 (Cth)

M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21

Applicant: JASMEET SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1533 of 2014

Judgment of: Judge Emmett

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms Grace Thangasamy (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1533 of 2014

JASMEET SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) in which to seek judicial review of a decision of the Migration Review Tribunal (“the MRT”) dated 18 July 2012 affirming a decision of a delegate of the first respondent refusing the applicant a student visa.

2. Section 477(1) of the Act requires that any applicant for judicial review be made within 35 days of the date of the MRT’s decision. Section 477(2) of the Act provides that the Court may extend that period if the Court considers that it is in the interests of administration of justice to do so.

3. The applicant filed his application seeking judicial review of that decision on 5 June 2014, somewhere in the order of 600 days out of time.

4. The first respondent solicitor, Ms Thangasamy, opposed the applicant’s application for an extension of time on the basis of the extent of the delay and the submission that the application for judicial review has no prospect of success of establishing jurisdictional error on the part of the MRT.

5. The applicant was unrepresented before the Court this morning. The applicant’s application provided no explanation for the delay. I explained to the applicant that the matters that would operate on the mind of the Court in relation to any application for extension of time would be his explanation for the delay and the prospects of success of his application for judicial review of the MRT’s decision.

6. I also explained to the applicant that this Court had no discretion to interfere with the decision of the MRT unless the Court was satisfied that the decision is affected by an error that goes to the MRT’s jurisdiction.

7. The applicant was invited to say whatever he wished in support of his explanation for his delay. The explanation was that the applicant had sought Ministerial intervention which had taken some time to be received by him.

8. However, it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the MRT on grounds that may have otherwise been available to him (see: M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293; Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21). There was no evidence before the Court of the applicant seeking judicial review in accordance with the Act and the relevant timeframes.

9. In relation to his substantive application for judicial review, the applicant gave various explanations as to the course of his applications for visas, none of which identified any error going to the MRT’s jurisdiction.

10. The first respondent solicitor read the affidavit of the applicant, sworn 3 June 2014, and filed on 5 June 2014, which annexed a copy of the MRT’s decision record, amongst other documents.

11. It is clear from the MRT’s decision record, that the applicant applied for a student temporary class visa on 15 February 2012. However, cl.572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) required that the applicant be the holder of a substantive visa of the type described in cl.572.211(2)(iv) in order to meet the requirements of cl.572.211(3)(c). Clause 572.211(3)(c) requires that the Student (Temporary) visa application be made within 28 days of the date on which the applicant’s substantive visa ceased to be in effect.

12. The applicant’s last substantive visa ceased on 8 December 2011. The Student (Temporary) visa application was not made within 28 days after the last substantive visa held by the applicant had ceased. Accordingly, the MRT found that it had no discretion to grant the applicant the visa as required.

13. Whilst I make no final decision as to whether or not the decision of the MRT is affected by jurisdictional error, none is apparent on the face of the MRT’s decision record and none has been identified by the applicant.

14. In the circumstances, I am not satisfied that the application for judicial review of the MRT’s decision has any prospect of success. If an extension of time was granted, it is likely that the applicant’s proceeding would be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application does not raise an arguable case for the relief claimed. Such an outcome renders any extension of time to be futile.

15. Accordingly, coupled with the applicant’s inadequate explanation for his delay, it would not be in the interests of justice to grant a further extension to the applicant. The applicant’s application for an extension of time to seek judicial review of a decision of the MRT, dated 18 July 2012, should be refused with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             2 September 2014