SINGH v Minister for Immigration - [2018] FCCA 2292

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2292

Catchwords:
MIGRATION – Student (temporary) (class TU) (subclass 500) visa – applicant’s application for merits review out of time – applicant’s migration agent delayed notification to applicant of minister’s delegate’s decision – date when applicant was actually notified not relevant.

PRACTICE AND PROCEDURE – Show cause hearing – applicant’s ground of review lacked merit – no arguable case –no jurisdictional error – application for judicial review summarily dismissed.

Legislation:

Migration Act 1958, ss.347(1), 494C

Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994, reg.4.10, sch 2, cl 500.212

Cases cited:

Applicant:

GURWINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1152 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

8 August 2018

Date of Last Submission:

8 August 2018

Delivered at:

Melbourne

Delivered on:

8 August 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Solicitors for the First Respondent:

DLA Piper Australia

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

DLA Piper Australia

ORDERS

The application filed on 31 May 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3 606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1152 of 2017

GURWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

On 4 May 2017 the Administrative Appeals Tribunal decided that it did not have jurisdiction in this matter. That was for the simple reason that the applicant did not file his application to the tribunal within 21 days after the applicant was notified of the minister’s delegate’s decision to refuse the grant of the relevant visa application.
The question for me was whether the tribunal fell into jurisdictional error in deciding that it had no jurisdiction.
For the reasons that follow, in my view the tribunal made no error with the consequence that this application for judicial review must be dismissed.
The relevant chronology may be shortly stated.
On 30 August 2016 the applicant applied for a student (temporary) (class TU) (subclass 500) visa. The delegate took the view that the applicant failed to meet the criteria of cl 500.212 of sch 2 to the Migration Regulations. The delegate refused…

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: [2018] FCCA 2292
Decision Date: 8 August 2018

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Immigration's refusal to grant the applicant a Student (temporary) (class TU) (subclass 500) visa. The AAT had dismissed the applicant's application for merits review as being out of time, a decision the applicant sought to challenge.

The central legal issue before the court was whether the applicant had established an arguable case of jurisdictional error by the AAT. Specifically, the court had to consider whether the AAT erred in law by refusing to grant an extension of time for the applicant to lodge their application for merits review, given that the delay in lodging was attributed to the applicant's migration agent failing to notify the applicant of the delegate's decision promptly.

His Honour Judge Wilson reasoned that the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) prescribe strict time limits for lodging applications for merits review. The applicant's argument that the date of actual notification, rather than the date of the decision, was relevant for the purpose of calculating the time limit was not supported by the relevant legislative provisions. The court found that the applicant had not demonstrated any jurisdictional error on the part of the AAT in applying these provisions.

Consequently, the application for judicial review was summarily dismissed as it lacked merit and did not present an arguable case.

Orders