KUMAR v Minister for Immigration - [2013] FCCA 911

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 911

Catchwords:
MIGRATION – Judicial review of decision of the Migration Review Tribunal– Application seeking an extension of time – s.477 of Migration Act 1958 (Cth) – significant delay in filing of application – reasonable explanation not given –insufficient merit on the grounds of the proposed substantive application – time not extended to the Applicant – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 477.
Migration Regulations 1994 (Cth), Sch.2, cl.572.211

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279

Applicant:

AMIT KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 502 of 2013

Judgment of:

Judge Hartnett

Hearing date:

18 July 2013

Delivered at:

Melbourne

Delivered on:

18 July 2013

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Ms Whittemore

Solicitors for the Respondent:

Sparke Helmore Lawyers

THE COURT ORDERS THAT:

The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The Application filed 17 April 2013 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be refused.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 502 of 2013

AMIT KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced upon the Applicant filing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 2 October 2012. In that decision the Tribunal affirmed the decision under review before it, which was to not grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa.
The grounds of the substantive application as set out in the Application filed 17 April 2013 provide no particulars, nor any legal ground of review. In Orders made by Registrar Caporale on 5 June 2013 the Applicant was ordered on or before 3 July 2013 to file and serve any amended application including any additional grounds of review with complete particulars of each ground and any affidavits. The Applicant has not filed and served any such documents in accordance with that order.
The matter before the Court this day is the application for an extension of time made by the Applicant as set out in the Application filed 17 April 2013. The ground for the application for an extension of time is stated by the Applicant as follows:-
“1. We applied for ministerial intervention which was unsuccessfull (sic)”.
The First Respondent filed a response to the application on 1 May 2013 and sought dismissal of the Applicant’s application for an extension of time to file the application together with a dismissal of the substantive application. The response sets out the following grounds and particulars in defence of the application:
“1. The Court has no jurisdiction to review the Migration Review Tribunal decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 911
Decision Date: 18 July 2013

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Amit Kumar (the Applicant) sought judicial review of a decision by the Migration Review Tribunal dated 2 October 2012, which affirmed the refusal of his Student (Temporary) (Class TU) Subclass 572 visa. The First Respondent was the Minister for Immigration, Multicultural Affairs and Citizenship, and the Second Respondent was the Migration Review Tribunal.

The primary legal issue before the Court was whether to grant the Applicant an extension of time to file his application for judicial review. The Applicant's stated ground for this extension was that his application for ministerial intervention was unsuccessful. The First Respondent sought dismissal of both the extension of time application and the substantive application, arguing that the Court lacked jurisdiction as the application was not filed within the 35-day time limit prescribed by s 477(1) of the *Migration Act 1958* (Cth). Furthermore, the First Respondent contended that the Applicant's substantive application lacked particulars and legal grounds, and that the Applicant had failed to provide an affidavit explaining the delay or justifying an extension of time as required by Rule 44.05(2)(c) of the Federal Circuit Court Rules.

Judge Hartnett refused the Applicant's application for an extension of time pursuant to s 477 of the *Migration Act 1958* (Cth). The Court noted that the Applicant had failed to provide any particulars or legal grounds for his substantive application, and had not complied with a Registrar's order to file an amended application with complete particulars. Crucially, the Applicant had not provided an affidavit explaining the delay or justifying the grant of an extension of time. Consequently, the Court ordered that the Applicant pay the First Respondent's costs fixed at $3,326.

Orders

Orders of the court

The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

The Application filed 17 April 2013 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be refused.

The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 502 of 2013

AMIT KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced upon the Applicant filing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 2 October 2012. In that decision the Tribunal affirmed the decision under review before it, which was to not grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa.

The grounds of the substantive application as set out in the Application filed 17 April 2013 provide no particulars, nor any legal ground of review. In Orders made by Registrar Caporale on 5 June 2013 the Applicant was ordered on or before 3 July 2013 to file and serve any amended application including any additional grounds of review with complete particulars of each ground and any affidavits. The Applicant has not filed and served any such documents in accordance with that order.

The matter before the Court this day is the application for an extension of time made by the Applicant as set out in the Application filed 17 April 2013. The ground for the application for an extension of time is stated by the Applicant as follows:-

“1. We applied for ministerial intervention which was unsuccessfull (sic)”.

The First Respondent filed a response to the application on 1 May 2013 and sought dismissal of the Applicant’s application for an extension of time to file the application together with a dismissal of the substantive application. The response sets out the following grounds and particulars in defence of the application:

“1. The Court has no jurisdiction to review the Migration Review Tribunal decision dated 2 October 2012. Subsection 477(1) of the Migration Act 1958 (Cth) applies and the application in this Court was not filed within 35 days of the date of the Tribunal decision.

2. The application for judicial review does not provide any particulars or any legal ground of review.

3. The applicant has requested an extension of time in his application but has not provided an affidavit explaining the delay or why an extension should be granted pursuant to Rule 44.05(2)(c) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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