Krishnamurthy v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1830

FEDERAL COURT OF AUSTRALIA

Krishnamurthy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1830

KRISHNAMURTHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2131 OF 2005

GRAHAM J

7 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2131 OF 2005

BETWEEN:	AMARNATH MALUR KRISHNAMURTHY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	7 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file and serve a notice of appeal be dismissed.

2.The Applicant pay the Respondent’s costs fixed in the sum of $1000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2131 OF 2005

BETWEEN:	AMARNATH MALUR KRISHNAMURTHY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GRAHAM J
DATE:	7 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. What is presently before the court is an application for extension of time to file and serve a notice of appeal from the judgment of a Federal Magistrate given on 30 September 2005.  The background facts are set out extensively in the reasons for judgment of the Federal Magistrate, as are the reasons for his decision.  In paragraph 14 of his reasons he said:

   “On the face of these documents there is no jurisdictional error disclosed and in the absence of any other material I am unable to form any contrary view.”

2. Previously, the Applicant had sought review of the delegate's decision by the Migration Review Tribunal(“the Tribunal”).  Before the period during which the Tribunal considered that application, the Applicant was represented by a registered migration agent, however the correspondence contained in the court book from this migration agent did not address the issue of a breach by the Applicant of Condition 8107. 

3. On 6 July 2004, the Applicant applied to the Federal Magistrates Court of Australia for review of a decision of the Tribunal, dated 31 May 2004 by which it affirmed a decision of a delegate of the Minister made on 21 October 2003 to cancel a Temporary Business Entry (Class UC) visa held by the Applicant. On 9 January 2004 a letter was sent by the Tribunal to the Applicant in accordance with s 359C(2) of the Migration Act 1958 (Cth) (“the Act”) inviting the Applicant to comment upon information suggesting that he had breached Condition 8107 by working for a company other than his sponsor company.

4. Whilst the Applicant, by his migration agent, responded to the letter of 9 January 2004 with a letter dated 8 April 2004, the migration agent failed to address the alleged breach of Condition 8107.  The Minister's delegate and the Tribunal did, however, have a letter from an "employer" of the Applicant dated 1 October 2003.  The learned Federal Magistrate dismissed the application for review of the Tribunal's decision and ordered the Applicant to pay the Minister's costs and disbursements of and incidental to the application for review.

5. On 4 November 2005, five weeks to the day after the date of the decision of the Federal Magistrate, the Applicant filed in this Court a draft notice of appeal from that decision and the current application for extension of time to file and serve that notice of appeal.

6. It would seem that the time for appeal expired 21 days after the date on which the judgment appealed from was pronounced, that is to say it expired on 21 October 2005.  The Applicant says that he did not receive the letter under cover of which the reasons for judgment of the Federal Magistrate were provided to him until 10 October 2005.  It is common ground that the letter containing the decision was posted to the Applicant on 6 October 2005.  The Applicant says that he was unaware of the 21 day time limit and that he thought he had until 1 November 2005 to file his notice of appeal.  As has been earlier indicated, nothing was filed until Friday 4 November.

7. The Applicant attended upon his Doctor, Dr Karalasingham, on 27 October, 1 November and 24 November 2005.  Somewhat curiously the medical certificate provided by the Applicant's doctor (which has become Exhibit A before me) certified the Applicant to be unfit for Court from 1 November to 3 November.  The date of the certificate is Tuesday 1 November 2005 and the reason for the unfitness is said to have been "food poisoning".

8. Under Order 52 rule 15(2) the Court or a judge may at any time give leave to file and serve a notice of appeal even though the time fixed by Order 52 rule 15(1)(a) has already expired.  The power to do so depends upon there being “special reasons” for such extension of time.  The Minister in her written submissions has urged the view that the application should be refused on discretionary grounds, even if special reasons were found to have been applicable. 

9. It seems to me that, at the heart of the matter, the Court needs to consider whether an injustice would be done if the time were not extended.  The proposed grounds of appeal referred to in the draft notice of appeal are as follows:

   “1.Judgment was made on the basis of MRT’s decision.

   2.There was no chance to provide more evidence relating to my employment.

   3.I would like to bring my employer to provide more clarification as I was working for the company and followed instructions.”

10. I have attempted to elicit from the Applicant during the course of his submissions what it is that he wants to advance by way of argument under these grounds of appeal.  It seems to me that the case he wishes to advance is that his migration agent let him down and that were he afforded the opportunity to do so, he would avail himself of a second chance to present material to the Tribunal providing more information than had been given in his migration agent’s letter of 8 April 2004.

11. It seems clear to me that what the Applicant wants is an opportunity to argue that, with more information, the Tribunal would have reached a different conclusion on the facts.  There is no suggestion in anything that the Applicant has said in the draft notice of appeal or in oral submission suggesting that the Tribunal fell into error in a way which would warrant the issue of constitutional writs in respect of its decision.

12. In my opinion the application should be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:             14 December 2005

The Applicant appeared in person.

Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	7 December 2005
Date of Judgment:	7 December 2005