SINGH v Minister for Immigration

[2020] FCCA 1797

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1797

Catchwords:
MIGRATION – Visa – application for review of decision by Administrative Appeals Tribunal – interlocutory application for reinstatement of proceedings – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.347

Cases cited:

NAKKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

SZRJY v Minister for Immigration and Citizenship & Anor (No 2) [2012] FMCA 756

Applicant: SATNAM SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2298 of 2018

Judgment of: Judge McNab

Hearing date: 16 June 2020

Date of Last Submission: 16 June 2020

Delivered at: Melbourne

Delivered on: 3 July 2020

REPRESENTATION

The Applicant in person

Counsel for the First Respondent: Ms Roeger

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application in a Case filed on 19 February 2020 be dismissed.

2. That the applicant pays the first respondent’s costs, fixed in the sum of $3,500.

3. The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2298 of 2018

SATNAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in a Case filed 19 February 2020 (‘the reinstatement application’), the applicant seeks an order that his application for an extension of time filed on 3 August 2018 (‘the extension of time application’) be reinstated.

2. By his extension of time application, the applicant sought an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 5 June 2018. By that decision, the Tribunal found it did not have jurisdiction to review a decision of a delegate (‘delegate’) of the first respondent (‘the Minister’) to refuse to grant the applicant a Training (Class GF) (Subclass 407) visa (‘the visa’).

3. The extension of time application was listed for a directions hearing on 5 February 2020. The applicant failed to appear on that date. Registrar Carlton dismissed the application under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) and also ordered the applicant pay the Minister’s costs.

4. On 19 February 2020, the applicant filed an Application in a Case seeking orders to set aside the orders dismissing his application and for the ‘directions hearing’ to be reinstated. The Minister opposes the application for reinstatement.

5. The interlocutory application was heard on 16 June 2020.

6. For the reasons which follow I have concluded that the Application in a Case should be dismissed.

Background

1. The applicant is an Indian national who applied for the visa on 30 August 2017. In the application, the applicant nominated Mr Vijay Sharma, migration agent, as his authorised recipient.

2. On 24 November 2017, a delegate refused to grant the visa.

3. On 15 May 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. In his written submissions the applicant asked the Tribunal to accept the application out of time and asserted Mr Sharma’s failure to keep the applicant informed of the delegate’s decision.

4. On 1 June 2018, the applicant’s representative provided further written submissions to the Tribunal.

5. On 5 June 2018, the Tribunal decided that it had no jurisdiction to review the delegate’s decision. It noted that the last date on which the applicant could seek review was 15 December 2017 and, as the application was not made until 15 May 2018, it had no flexibility to extend the time period in which the application for review had to be made.

6. On 3 August 2018, by his extension of time application, the applicant sought an extension of time to apply for judicial review of the Tribunal’s decision. The applicant required an extension of time of 24 days.

Grounds for an extension of time

1. In summary, the applicant’s grounds for applying for an extension of time are that:

   a)he did not seek judicial review within 35 days as he did not have a lawyer’s assistance;

   b)he was unaware that the 35-day time limit applied to no-jurisdiction decisions; and

   c)he attempted to lodge the application with the Court on 13 July 2018 but was rejected by the Court as he had the decision date wrong and listed the incorrect application fee.

2. By his Application in a Case filed 2 March 2020 the applicant sought the following Orders:

   a)to set aside the decision entered on 6 February 2020 for the application to be dismissed;

   b)to allow an application to be made for a directions hearing;  and

   c)reinstatement of a directions hearing.

Applicant’s evidence

1. By his affidavit affirmed 15 February 2020, the applicant deposes that:

   a)he missed the directions hearing on 5 February 2020;

   b)he called and emailed the Court registry to advise of same; and

   c)he suffered from severe migraines and fever which meant he unintentionally ‘lost track of’ the directions hearing and ‘as such was unable to attend’.

First respondent’s submissions

1. The Minister accepts that the applicant’s delay in seeking reinstatement is not lengthy and does not assert that he would be prejudiced if the extension of time application is reinstated.

2. However, the Minister submits that the applicant has not provided an adequate reason for his non-appearance at the directions hearing on 5 February 2020, especially after having been notified of the correct details of the hearing multiple times.

3. Citing NAKKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]-[7], the Minister says that the medical certificate provided by the applicant in support of his reinstatement application does not explain whether, and if so why, the severe migraine prevented him from travelling to the Court. The Minister maintains that the applicant’s contention that he unintentionally lost track of the hearing date due to a migraine is not supported by any medical evidence.

4. Further, regarding the merits of the application, the Minister submits that there is no merit in the extension of time application and therefore no purpose in reinstatement. The Minister claims that:

   a)the applicant has not provided a sufficient explanation for his delay in seeking review;

   b)the applicant’s lack of legal assistance and ignorance of the time limits are insufficient explanations for his delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; and

   c)the proposed substantive application has no prospect of success.

Consideration

1. In determining whether to grant the reinstatement application, the Court must be satisfied that the applicant has provided a satisfactory explanation for his non-attendance at the 5 February 2020 directions hearing, and that the extension of time application filed 3 August 2018 raises an arguable case for the relief claimed: MZYEZ v Minister for Immigration and citizenship [2010] FCA 530 at [7].

2. Under rule 16.05(2)(a) of the Rules, the Court has a discretionary power to set aside orders made in the absence of a party.

3. In my view, the applicant has not provided a sufficient or reasonable excuse for his absence from the directions hearing which was listed on 5 February 2020. The applicant deposes in his affidavit sworn 15 February 2020 that he telephoned the Federal Circuit Court registry on the afternoon of the day of the Federal Circuit Court hearing to inform the Court that he had missed the directions hearing that was scheduled. 

4. He does not give any explanation as to why his condition prevented him from telephoning earlier to notify the Court. Nor does the medical certificate that he has supplied, which was dated 5 February 2020, explain why he was unable to attend the hearing.

5. As to the merits of the claim, in my view, there are no reasonably arguable prospects of the application succeeding.

6. The Tribunal’s decision which is the subject of the application explains why the application before it could not proceed and sets out in detail the steps taken by the Tribunal to notify the applicant and to invite comment. The Tribunal clearly considered the submissions made on the applicant’s behalf regarding the negligence of a previous migration agent which was said to have caused the delay in filing the application for review of the delegate’s decision prior to 15 December 2017.

7. The Tribunal’s decision notes that the application before it was an application for review of the delegate’s decision made on 24 November 2017. The review application was lodged with the Tribunal on 15 May 2018, and, in circumstances where the time fixed for the filing of that review application expired on 15 December 2017, the Tribunal did not have jurisdiction. The Tribunal was sympathetic to the position of the applicant and noted at [6] that it acknowledged the submissions put before it on behalf of the applicant and empathises with the applicant’s situation.

8. However, the Tribunal has no flexibility in the application and interpretation of s 347(1)(b) of the Migration Act 1958 (Cth) and r 4.10 of the Rules. There is no material put forward by the applicant which would suggest that decision was wrong at law.

9. The Court also notes that the application for review of the Tribunal’s decision was 24 days out of time. The applicant has not provided a sufficient explanation for the delay in seeking review. He does refer to the purported unsuccessful attempts to lodge an application for an extension of time on 13 July 2018, but that does not provide an explanation for his failure to seek review of the Tribunal’s decision within the 35-day time period.

10. In the circumstances, the Court must dismiss the application for reinstatement of the proceeding, and the Court orders that the applicant pays the first respondent’s costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 3 July 2020