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 |
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Details
- Case
- [2017] FCCA 275
- Decision Date
CaseChat Overview and Summary
Mr Singh sought judicial review of a decision made by the Migration Review Tribunal. The Minister for Immigration was the respondent. The matter came before Judge Antoni Lucev of the Federal Circuit Court of Australia.
The primary legal issue before the Court was whether Mr Singh should be granted an extension of time to file his application for judicial review. This involved determining whether Mr Singh had provided a satisfactory explanation for the delay in filing his application within the prescribed 35-day period.
The Court considered that Mr Singh was notified of the time limit for filing a judicial review application and the requirement to seek an extension of time with an explanation. Ignorance of the time limit was not, without more, a satisfactory explanation for delay. Mr Singh contended that his delay was partly due to applying for Ministerial intervention. However, the Court held, consistent with established authority, that an application for Ministerial intervention does not provide a satisfactory explanation for delay in filing an application for judicial review. The Court noted that pursuing Ministerial intervention and seeking judicial review are not mutually exclusive, and an applicant must not delay in pursuing available legal avenues.
The Court found that Mr Singh had not adequately explained the delay in filing his application for judicial review. Consequently, the application for an extension of time was refused.
The primary legal issue before the Court was whether Mr Singh should be granted an extension of time to file his application for judicial review. This involved determining whether Mr Singh had provided a satisfactory explanation for the delay in filing his application within the prescribed 35-day period.
The Court considered that Mr Singh was notified of the time limit for filing a judicial review application and the requirement to seek an extension of time with an explanation. Ignorance of the time limit was not, without more, a satisfactory explanation for delay. Mr Singh contended that his delay was partly due to applying for Ministerial intervention. However, the Court held, consistent with established authority, that an application for Ministerial intervention does not provide a satisfactory explanation for delay in filing an application for judicial review. The Court noted that pursuing Ministerial intervention and seeking judicial review are not mutually exclusive, and an applicant must not delay in pursuing available legal avenues.
The Court found that Mr Singh had not adequately explained the delay in filing his application for judicial review. Consequently, the application for an extension of time was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 decisionsApplicants 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.
Ratio Decidendi
Legal Principle Established
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