Kondepudi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 930
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kondepudi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 930
File number: SYG 1746 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 18 September 2024 Catchwords: MIGRATION – Extension of time application – Student visa – grounds of procedural fairness – whether AAT’s written reasons reflect oral reasons provided at hearing Legislation: Migration Act 1958 (Cth) s77(2), 477(1), 477(2) Cases cited: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of hearing: 18 September 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Knuckey, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1746 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADITYA NARAYANA SHARMA KONDEPUDI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time for make the originating application in this matter is extended up to and including 16 September 2021.
THE COURT FURTHER ORDERS THAT:
2.The application is listed for a Final Hearing on 8 October 2024 at 10:15am.
3.The Minister is to file and serve at least 7 days before the final hearing a transcript of the Tribunal Hearing and any further submissions they wish to rely upon.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE SKAROS
Before the Court is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 29 July 2021. The Tribunal affirmed the decision of the delegate of the first respondent (the Minister) in refusing to grant you a student visa.
The applicant commenced proceedings in this Court on 16 September 2021. Section 477(1) of the Act required the applicant to file his application for judicial review of the Tribunal’s decision within 35 days after the date of the Tribunal’s decision, that date was 2 September 2021. As the applicant had not filed the application until 16 September 2021, he requires an extension of time.
The principles for granting an extension of time are well established and have been considered in cases such as Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [18]. They provide for the Court to consider various factors, which are not exhaustive, but generally include: the length of the delay, the reason for the delay, any prejudice to the Minister, and the merits of any proposed substantive application. When considering the merits, the Court need only consider it at an impressionistic level and determine whether the proposed grounds are arguable or sufficiently arguable. It is a relatively low threshold.
In considering each of these factors, the Court notes the following:
Length of the delay
The Court considers 14 days to be a relatively a short period of time.
Reason for the delay
The Court is not entirely convinced with the reasons that the applicant has provided for the delay. There is no evidence before the Court to support the applicant’s claim that he attempted to file the application for judicial review within prescribed period of 35 days and, at today’s hearing, he was not able to provide any further detail which demonstrates that he had so attempted. As to the explanation that he did not have a copy of the written statement of reasons, the Court notes that the applicant commenced proceedings in this Court on 16 September 2021 based on the Outcome of Review document, which he had in his possession since he was notified of the outcome of the review on 30 July 2021. The applicant did not require the written statement of reasons to commence judicial review proceedings and did not ultimately rely on them. The reasons for the delay do not favour granting the extension of time.
Prejudice to the Minister
As to prejudice to the Minister, the Court does not consider that, other than costs, the Minister will face any real prejudice if time is extended in this matter.
Merits of the judicial review application
Turning to the merits of the judicial review application, which is arguably the most important factor when considering whether to grant an extension of time, the Court considers that the applicant’s complaint that the Tribunal failed to properly consider his claims and provide reasons may potentially raise an arguable error. There is also the concern regarding whether the written statement of reasons reflected the oral reasons given at the hearing which, depending on the further evidence that is put before the court, may potentially raise a ground of jurisdictional error pertaining to procedural fairness.
Conclusion
On the basis that the application raises arguable grounds of judicial review and, having regard to all the foregoing considerations, the Court is satisfied that, in the circumstances of this case, it is in the interest of administrative justice to grant the extension of time.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 20 September 2024
0
1
1