Singh v Minister for Immigration
[2017] FCCA 275
•20 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 275 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file judicial review application – factors for consideration. |
| Legislation: Migration Act 1958 (Cth), ss.65, 360, 360A, 362B, 474, 476, 477 Migration Regulations 1994 (Cth), Sch.2, cll.570.222, 570.223, 570.224, 570.225, 570.232, 571.232, 572.231, 573.231, 574.231, 575.231, Sch.4 cl.4005, Sch.5A, cl.5A205 |
| Cases cited: AWX16 v Minister for Immigration & Anor [2016] FCCA 928 AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 68 AAR 171 Borra v Minister for Immigration & Anor [2013] FCCA 1216 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Jess v Scott (1986) 12 FCR 187 Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619 Kaur v Minister for Immigration & Citizenship [2010] FMCA 822 Singh v Minister for Immigration & Citizenship [2013] FCA 813 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534 |
| Applicant: | HARDEV SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 579 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 February 2017 |
| Date of Last Submission: | 20 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 20 February 2017 |
REPRESENTATION
| For the Applicant: | No appearance |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in which to file an application pursuant to s.476 of the Migration Act 1958 (Cth) be dismissed.
The applicant pay the first respondent’s costs in the sum of $5800 by 17 March 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 579 of 2015
| HARDEV SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 17 December 2015 the applicant, Hardev Singh (“Mr Singh”) lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse Mr Singh a Student (Temporary) (Class TU) visa (“Student Visa”) under s.65 of the Migration Act. A copy of the Tribunal Decision is at Court Book (“CB”) 83-86.
The Tribunal Decision was made on 30 July 2014. Pursuant to s.477(1) of the Migration Act, Mr Singh was required to institute proceedings within 35 days of the date of the Tribunal Decision. The last date on which an application could have been brought was 3 September 2014. The Judicial Review Application, filed on 17 December 2015, is 470 days out of time.
Under s.477(2) of the Migration Act Mr Singh has applied for an extension of time in which to file the Judicial Review Application.
Background
Mr Singh, a citizen of India, applied for the Student Visa on 18 March 2013: CB 1-20.
On 30 April 2013, the Delegate refused to grant Mr Singh the Student Visa on the basis that he did not satisfy cll.570.222, 570.223, 570.224 and 570.225 of Schedule 2; cl.4005 of Schedule 4 and cl.5A205 of Schedule 5A of the Migration Regulations 1994 (Cth) (“Migration Regulations”) as Mr Singh had not provided evidence of his confirmation of enrolment, overseas student health cover, medical examination and financial capacity: CB 42.
The Delegate further found that Mr Singh did not satisfy the primary criteria for any other relevant Student Visa subclass as Mr Singh was not enrolled in, or had not been offered a place in, a principal course of study that had been specified by Gazette Notice as a type of course for any of those subclasses and did not have the support of the AusAid Minister or the Defence Minister for the grant of a Student Visa: CB 42.
On 9 May 2013, Mr Singh applied to the Tribunal for review of the Delegate’s Decision: CB 50-60.
On 19 June 2014, the Tribunal sent a letter to Mr Singh by email (the email was sent to the email address notified by Mr Singh in his application for review): CB 51 and 63, inviting him to appear at a hearing before the Tribunal: CB 63-66. The email also requested that Mr Singh provide certain information including a copy of his current Certificate of Enrolment and documents that showed he was currently enrolled in a course or had an offer of enrolment "as required for the grant of a student visa": CB 65.
The hearing, scheduled to take place on 14 July 2014, was postponed after the applicant submitted a medical certificate to the Tribunal: CB 69, and was unable to be contacted via telephone prior to the hearing: CB 70.
On 15 July 2014, the Tribunal sent a further letter to Mr Singh by email to the email address notified by Mr Singh in his application for review: CB 51 and 73, inviting him to appear at a hearing before the Tribunal on 29 July 2014: CB 73-76. The letter again requested that Mr Singh provide certain information including a copy of his current Certificate of Enrolment and documents that showed he was currently enrolled in a course or had an offer of enrolment: CB 75.
On 15 July 2014, the Tribunal also attempted to contact Mr Singh by telephone to advise him of the invitation to hearing: CB 78.
Mr Singh did not attend the hearing on 29 July 2014: CB 80. The Tribunal attempted to contact Mr Singh by telephone however could not establish contact with Mr Singh: CB 79. Mr Singh did not provide the information requested in the Tribunal’s letters of 19 June 2014 and 15 July 2014.
Tribunal Decision
The Tribunal decided to proceed to make a decision on the application for review of the Delegate’s Decision without taking further action to allow or enable Mr Singh to appear before it, pursuant to s.362B of the Migration Act: CB 85 at [18]. In deciding to proceed in that manner the Tribunal took into account that:
a)the Tribunal had invited Mr Singh to two hearings: CB 85 at [11] and [15];
b)on two occasions the Tribunal had requested that Mr Singh provide specific information relating to the issues arising in his matter and no such information had been provided: CB 85 at [12], [13], [15] and [17]; and
c)attempts had been made to contact Mr Singh by telephone on the day of both the scheduled hearings: CB 85 at [14] and [17].
The Tribunal found that there was no evidence before it that Mr Singh was enrolled, or was the subject of a current offer of enrolment, in any course of study. Accordingly, the Tribunal found that Mr Singh did not satisfy cll.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 of the Migration Regulations: CB 86 at [23]. Moreover, the Tribunal found there was no evidence that Mr Singh met the criteria for the alternative subclasses of Student Visa: CB 86 at [24].
Extension of Time Application
Grounds
The grounds of the application for an extension of time are:
1. I applied for the Ministerial Intervention after the MRT Decision. I was not aware that the judicial review option was available for me. I just reviewed the outcome of the Ministerial Intervention. Please also review the attached Ministerial Intervention outcome
Legislative provisions
The Judicial Review Application was filed some 470 days outside of the 35 day time limit imposed by s.477(1) of the Migration Act. Pursuant to s.477(2) of the Migration Act, this Court may grant an extension of time to seek judicial review of the Tribunal Decision if satisfied that, relevantly, it is in the interest of the administration of justice to do so.
Factors for consideration
The factors relevant to whether time should be extended in the present case are:
a)the length of the delay: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley”);
b)the explanation for the delay: Baig v Minister for Immigration & Border Protection [2014] FCA 855;
c)the prejudice to the Minister: Singh v Minister for Immigration & Citizenship [2013] FCA 813; and
d)the merits of the proposed appeal: SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 (“SZNYE”).
Extent of delay
In the present case, the delay in seeking judicial review of the Tribunal’s decision is very lengthy.
The law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, must have regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority at 553 per McHugh J.
The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 at [35] per Gilmour J (dismissing an application to extend time to appeal where two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”); Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”) at [29] per Spender, Buchanan and Perram JJ.
The excessive nature of the delay in a case concerning prerogative relief from the decision of an administrative decision-maker was commented upon by the High Court in Marks at [16] per McHugh J in the following terms:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ.
Reason for delay
In the Judicial Review Application Mr Singh firstly contends that the reason for delay was that he was not aware that judicial review was an option available to him.
Mr Singh was notified of the Tribunal Decision by letter dated 30 July 2014 attached to which was the Tribunal Decision and a document entitled “Information about Tribunal Decisions [M25]”: CB 87-89. The latter document includes at CB 88 the following:
Review of Tribunal decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of Tribunal decisions. The Court will consider whether the Tribunal made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of the Tribunal decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
Mr Singh was therefore on notice that the Judicial Review Application was required to be filed within 35 days, and if not so filed, that an extension of time application, together with an explanation as to why an extension of time was required, had to be filed.
In any event, ignorance of the time limit is not, without more, generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J, followed in AWX16 v Minister for Immigration & Anor [2016] FCCA 928 at [45(c)] per Judge Lucev (and other cases in this Court there cited).
In the Judicial Review Application, Mr Singh contends that another reason for the delay was that he had applied for Ministerial intervention. Ministerial intervention does not provide an explanation for the delay in making an application to the Court: M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 (“M211 of 2003”); SZNYE at [9] per Katzmann J; WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [82]-[84] per Judge Lucev (“WZAWB”). The relevant law was summarised by the Full Court of the Federal Court in M211 of 2003 at [22]-[24] per Black CJ, Sackville and Sundberg JJ. as follows:
22. In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:
In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. …
In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.
23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:
It was submitted on behalf of the respondent that the applicant's request under s 417 should be viewed as an indication that he was prepared to accept the RRT's decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court … .
In Applicant A2 of 2002, von Doussa J said of the applicant that:
having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.
This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.
It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:
As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.
24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant's course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge.
The law as set out at M211 of 2003, and the cases there cited in the above extract, has been applied by this Court. For example:
a)in Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929 at [8] per Judge Emmett it was observed that:
… it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the … [Tribunal] on grounds that may have otherwise been available to him …
b)in Wei v Minister for Immigration & Anor [2013] FCCA 262 at [22] per Judge Nicholls it was said that:
On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court …
c)in Borra v Minister for Immigration & Anor [2013] FCCA 1216 at [38] per Judge Burchardt it was said that:
… even if I accept the applicant's version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision …
d)in WZAWB at [84] per Judge Lucev it was said that:
It is plain from the above authorities that a request for Ministerial intervention is not merely an alternative course, but an inconsistent course which accepts the decision of the Tribunal as correct, or an inconsistent course which abandons any challenge to a decision of the Tribunal, or, at the very least, not a course which prevents the filing of a protection visa application.
Prejudice
Although the Minister does not contend that he would be prejudiced by reason of the delay, the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion to extend time: Hunter Valley FCR at 349 per Wilcox J.
Merits
In determining whether the merits of the Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. In an extension of time context, an assessment of the merit of the case is broad. Such an assessment involves a consideration of the outline of the case in relation to which the applicant for an extension bears the burden of persuasion: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [37] per Lucev FM.
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Mr Singh seeks to rely on the following grounds of review:
I strongly believe that the grounds of my judicial review application are completely genuine. The Department and MRT refused my student visa application because I failed to meet the criteria, Schedule 2 requirement. The Department was of the view that I failed to meet the requirement as I did not have an offer of enrolment in a course. Kindly be advised that the reasons for my un-enrollment were completely beyond my control because of my financial circumstances. I am a genuine student and have studied in Australia for quite a few years. I strongly believe that I deserve a second chance.
I request the Federal circuit court to exercise its insights and set aside the decision made by the Migration Review Tribunal and the Department of Immigration and Border Protection.
As a preliminary issue, insofar as Mr Singh seeks review of the Delegate’s Decision (“the decision made by … the Department”: at [32] above), this Court has no jurisdiction to review that decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, and in any event, it is well established that if the Tribunal Decision is not flawed, it cures any defect and irregularities in the Delegate’s Decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314.
Mr Singh’s proposed grounds constitute no more than a plea for impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Furthermore, there can be no error in the Tribunal not taking into account the reason as to why Mr Singh claims to have been unable to provide a Confirmation of Enrolment in circumstances where such a claim was not raised by Mr Singh: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.
To the extent that Mr Singh's proposed grounds might be said to contend that the Tribunal erred in proceeding under s.362B of the Migration Act that ground must fail.
The power conferred by s.362B of the Migration Act must be exercised reasonably: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”). The Tribunal’s election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of power: NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592 at [20]-[21] per Greenwood J; Kaur v Minister for Immigration & Citizenship [2010] FMCA 822 at [25]-[35] per Barnes FM. There are two conditions to be met for the Tribunal to exercise its discretion pursuant to s.362B of the Migration Act, namely:
a)Mr Singh must have be invited to appear at a hearing pursuant to s.360 of the Migration Act; and
b)Mr Singh must have then failed to appear.
See MZZSK v Minister for Immigration & Anor [2014] FCCA 883; Li.
By letter dated 15 July 2014 sent by email on the same day, Mr Singh was invited to attend a hearing before it on 29 July 2014 CB 73-76. The hearing invitation complied with the requirements of s.360A of the Migration Act. By Mr Singh having been properly invited to appear at the Tribunal hearing, the first precondition for the exercise of the discretion had been met. In respect of the second precondition, the failure by Mr Singh to physically present before the Tribunal was sufficient to satisfy this precondition for the exercise of the Tribunal's discretion: Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 842 at [19] per Mansfield J.
There was nothing unreasonable about the Tribunal Decision to proceed under s.362B of the Migration Act in circumstances where:
a)a case note by an officer of the Tribunal reveals that the Tribunal took steps to contact Mr Singh to advise that the hearing invitation of 15 July 2014 had been sent and no ‘response to hearing invitation’ had been returned to the Tribunal: CB 78;
b)a case note by an officer of the Tribunal reveals that the Tribunal took steps to contact Mr Singh when he failed to appear at the hearing and there was no explanation before the Tribunal for Mr Singh's failure to appear: CB 79;
c)Mr Singh had failed to provide any evidence to the Tribunal despite being invited to do so; and
d)there had been no other relevant communication and correspondence between Mr Singh and the Tribunal about the proceedings: Patel & Ors v Minister for Immigration & Anor [2015] FCCA 1624 at [8] per Judge Lucev.
In any event, there is nothing on the face of the Tribunal Decision to suggest that the Tribunal Decision to exercise its discretion was arbitrary, capricious, without common sense or plainly unjust: Li; Minister for Immigration & Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [44] per Allsop CJ, Robertson and Mortimer JJ. While “reasonable minds may reach different conclusions about the correct and preferable decision”, the Tribunal Decision to exercise its discretion under s.362B of the Migration Act was within the “area of decisional freedom”: Li at [28] per French CJ. The circumstances are plainly distinguishable from those in AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383; (2015) 68 AAR 171 (“AZAFB”); Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619.
Nothing in Mr Singh’s case points to jurisdictional error on the part of the Tribunal.
Consideration – extension of time
Having regard to:
a)the extraordinary length of the delay in making the application;
b)the failure to provide an acceptable reason for the delay;
c)the necessity for the finality of litigation in relation to administrative decision-making; and
d)the time limit itself,
the Court does not consider that the extraordinary delay in this Judicial Review Application being lodged has been satisfactorily explained by the applicant. Having regard to what was said in Marks by the High Court the delay in this case must be an almost insuperable hurdle to an extension of time, or at the very least, require the most powerfully arguable merits case in order for an extension of time to be granted.
In this case the merits case is weak, if not non-existent, and in all the circumstances, particularly in circumstances where the applicant did not put an evidentiary case to the Tribunal, and did not appear before either the Tribunal or this Court, the Court is of the view that the case lacks any, or any sufficient merit, to warrant an extension of time.
In the above circumstances where there is an extraordinarily lengthy delay in lodging the Judicial Review Application, without a reasonable explanation for the delay, and a lack of merit in the Judicial Review Application, it is not appropriate to extend time for filing of the Judicial Review Application. It follows that the Minister is entitled to costs.
It was for the above reasons that the Court made the following orders at the hearing earlier today:
(1)The applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in which to file an application pursuant to s.476 of the Migration Act 1958 (Cth) be dismissed.
(2)The applicant pay the first respondent’s costs in the sum of $5800 by 17 March 2017.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 February 2017
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