Magar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 679
•5 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Magar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 679
File number(s): SYG 512 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 5 May 2025 Catchwords: MIGRATION – extension of time application to review a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused. Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 5 May 2025 Place: Sydney Applicant: Mr Magar appeared in person Solicitor for the First Respondent: Mr L Dennis (Mills Oakley) Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 512 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOKENDRA GHARTI MAGAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
5 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
2.The applicant pay the first respondent’s costs in the fixed amount of $4189.38.
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
JUDGE MCCABE:
This is an application for an extension of time to commence proceedings. The decision which the applicant wishes to contest is a decision of the Administrative Appeals Tribunal, dated 2 November 2019. The extension of time application is necessary because Mr Magar, the applicant, did not approach the Court until 3 March 2020. Section 477(1) of the Migration Act 1958 (Cth) says applications for review of this kind must be filed within 35 days of the date of the migration decision being made by the Tribunal. That means the applicant was some 87 days outside of the appeal period, a period of around three months.
The Court does have the power to extend time in appropriate cases to make an application for review. The power is found in s 477(2) of the Act, and the Court can exercise that power where it is satisfied it is in the interests of justice to do so. I will come back to the considerations which are relevant to the exercise of that discretion in a moment, but first, some background.
The applicant was already in Australia when he applied for a student visa in 2017 so he could undertake a further course of study here. The visa was refused by the minister's delegate. Mr Magar sought review of that decision in the Tribunal in a timely way. Mr Magar told me at the hearing that, as far as he was concerned, his application to the Tribunal was to be handled by his migration agent. He says he was introduced to that firm through his local community. He said he gave them all the information in relation to his case that they requested, including details of his enrolment. He said he was aware the agent was using another firm – he understood them to be lawyers – to actually make the application and appear in the Tribunal.
Indeed, the other firm was nominated as the applicant's authorised representative in the Tribunal. That fact is recorded at p 33 of the court book, which reproduces the Tribunal's records. The applicant's then current email address was also recorded on that system.
At some point during the Tribunal review process, the authorised representative lost its registration as a migration agent. The Tribunal wrote to the applicant's personal address to note that had occurred. Thereafter, the Tribunal corresponded with the agent and the applicant personally, in the sense that the correspondence was copied to the applicant. The applicant did not respond to requests to provide information and did not respond to the hearing invitation. The Tribunal decided the application on the basis of the material before it. In its decision, it explained that, amongst other things, it was not satisfied the applicant was currently enrolled in a course because no information about enrolment had been provided. In any event, the Tribunal concluded the applicant was not a genuine temporary entrant, and the delegate's decision to refuse the visa was affirmed. A copy of the Tribunal’s decision was sent to the applicant's registered personal email address, as well as to the representative.
The applicant said he did not receive the email containing the decision. He said he had lost access to his registered email address some time before, and he had established a new one, which he is still using. He told me he shared the new email address with his migration agent. At some point, when he asked the agent about the progress of his case, he says he was told the third-party representative had stopped responding to the queries of the agent. In any event, Mr Magar said he could not recall how he found out about the Tribunal's decision. But he insists he acted promptly as soon as he became aware of the outcome, and he immediately thereafter approached the Court.
So let us go back to the power to extend time. The power can be exercised when the Court is satisfied it is in the interests of justice to do so. There are several factors which are potentially relevant to the exercise of that discretion. I will talk about the relevant ones below.
The first of them is the length of the delay and the explanation for that delay. The delay of nearly three months is troubling, although the applicant said he had acted promptly as soon as he was aware of the Tribunal's decision. The minister says the explanation for the delay is unclear and unsatisfactory. As I understand the explanation, Mr Magar was unaware of the outcome of the Tribunal's decision because his representative had failed to keep him informed. I accept that explanation at face value. It is unfortunate that the representative did not keep him informed. The situation is complicated by the fact the applicant was kept informed by the Tribunal which copied correspondence to his registered email address. He said he advised the agent the address had changed because he lost access to the email account in uncertain circumstances. The change of address was not communicated to the Tribunal.
On balance, I accept there is a rational explanation for the delay, but the applicant is not entirely without blame for what occurred. Notwithstanding the length of the delay, this consideration does not weigh against extending time but nor does it weigh in favour of exercising the discretion.
We also discussed the question of prejudice, in particular whether the minister would be prejudiced by having to participate in proceedings when there was reason to believe those proceedings had already been resolved. The minister concedes he would not experience direct prejudice in this case, although he makes the reasonable point that the system as a whole is prejudiced if the applicable timelines are too readily extended.
The applicant will experience some prejudice if he is not allowed to continue, he says, because he will be denied the opportunity to undertake fresh studies. He will presumably be required to return home in the absence of a visa. Having said that, it is not as if the applicant's studies will be interrupted.
Ultimately, I am not satisfied this factor weighs for or against extending time.
The most important consideration in this case is the merit of the underlying application for review. The applicant has identified two proposed grounds of review. In the first, he contends he was, in fact, enrolled in a course of study at the time of the Tribunal's decision. (The Tribunal found, on the basis of the material before it, it was not satisfied he was enrolled.) The problem for the applicant with this ground is that – even if I assume in his favour he was enrolled and had the appropriate paperwork –the Tribunal did not have that material before it, and, therefore, it did not have a rational basis for any other conclusion than the one it reached. Even if I accept the applicant had given his material to the agent, they apparently did not pass it on. Now, it is unfortunate for the applicant if that is so, but the Tribunal's decision was not legally defective as a consequence. It was not acting unreasonably because there was a logical basis for the finding it made. It follows this ground of judicial review is not reasonably or sufficiently arguable, which is the relevant standard.
The second ground contends the migration agent was negligent because the representative never asked him for documents. Once again, this ground is not reasonably or sufficiently arguable: being represented badly is not ordinarily a basis for challenging the Tribunal's decision, because it is a complaint about the agent, not the Tribunal. The Tribunal was not complicit in the negligence: it wrote to the applicant's personal email address on 25 January 2019 once it became aware the agent was no longer registered, and the Tribunal ‘copied in’ the applicant on correspondence thereafter.
The only other possible basis upon which an applicant could succeed in faulting the Tribunal's decision, in circumstances where the agent failed to do their job, is where there has been a fraud of some kind that effectively stultifies the Tribunal's review. Making such a claim requires evidence that points to evidence of fraud or similar behaviour. We do not have that in this case. All we appear to have is a mystery about what the registered representative was up to.
All things considered, the merits of the underlying application for review weigh against the exercise of the discretion.
So where does that leave us? I have explained I must decide whether an extension of time is required in the interests of justice. When I take into account the factors that I have discussed and think about the interests of justice, I am not satisfied it is appropriate to extend time. The factor that weighs decisively against the exercise of discretion is the lack of merit in the underlying case. It is not apparent there is any point to allowing the applicant to proceed to challenge the Tribunal's decision in the circumstances. That means the application for an extension of time must be refused.
I raised with both parties the question of costs. Costs often, but do not inevitably, flow with the outcome of the case. In this case, the minister has asked for an award of costs in a fixed amount of $4,189.38. I note that amount is indicated on the Court's scale. Mr Dennis, for the minister, has said that the actual amount of costs expended exceed that amount. I asked Mr Magar about costs but he did not have any submissions to make. In the circumstances, I am satisfied it is appropriate to award costs in the amount sought by the minister. Those costs were apparently incurred, and they are not in an unreasonable amount. Moreover, if the expenses are not met by the applicant, they would have to be met out of taxpayer funds.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 15 May 2025
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