Singh v Minister for Immigration

[2015] FCCA 931

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 931

Catchwords:
MIGRATION – Migration Review Tribunal – application dismissed for non-appearance – application for reinstatement of proceeding – application to tribunal out of time – tribunal had no jurisdiction – substantive application to this court has no prospect of success.

Legislation: 

Migration Act 1958, ss.347(1)(b), 494C
Migration Regulations 1994, reg.4.10

Applicant: RAMAN DEEP SINGH

First respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 342 of 2014

Judgment of: Judge Riley

Hearing date: 27 March 2015

Date of Last Submission: 27 March 2015

Delivered at: Melbourne

Delivered on: 27 March 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Advocate for the first respondent: Christopher Hibbard

Solicitors for the first respondent: Clayton Utz

Advocate for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz

ORDERS

1. The applicant’s application for reinstatement filed on 30 January 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $1,984.

3. The costs order be stayed for 60 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 342 of 2014

RAMAN DEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for reinstatement of a proceeding that was dismissed on 29 January 2015 because the applicant failed to appear. 

2. The applicant has filed an affidavit explaining why he failed to appear on 29 January 2015.  He said that he was at the court, but was waiting outside the wrong court room.  The more important issue for the court is whether the applicant has a reasonable prospect of success in the substantive application.

3. The substantive application is an application to review a decision of the Migration Review Tribunal.  The tribunal found that it did not have jurisdiction to review a decision of a delegate of the Minister.  The tribunal noted that the delegate’s decision was taken to have been notified to the applicant on 13 November 2013.

4. Pursuant to s.347(1)(b) of the Migration Act1958 (“the Act”), and reg.4.10 of the Migration Regulations 1994, the applicant had 21 days to lodge his application with the tribunal.  The 21 days expired on 4 December 2013.  The application for review by the tribunal was not received until 7 January 2014.  The tribunal noted that the applicant had been notified of the delegate’s decision by letter, sent by email on

   
   

   13 November 2013.

5. The tribunal noted that under s.494C of the Act, the applicant was taken to have been notified of the decision on 13 November 2013. The tribunal wrote to the applicant on 15 January 2014 inviting his comment on the validity of his application for review. The applicant did not respond. The Tribunal concluded that because the application was lodged more than 21 days after the date on which the applicant was taken to have received the delegate’s decision, the tribunal did not have jurisdiction.

6. The applicant told the court today that he had no communication from his agent.  I take that to mean that his agent did not tell him that the delegate had refused his application, and that is why he was late in lodging the application with the tribunal.  However, as the tribunal found, the delegate’s decision was sent to the applicant at the address he had given.  The court book shows at page 3 that the applicant gave a particular email address as the address through which the Department could communicate with him.  The delegate’s decision appears, from page 23 of the court book, to have been sent to that address.  That is so, even though the enclosed letter is addressed to the applicant at his residential address.  Accordingly, there does not appear to have been any error in the sending of the delegate’s decision to the applicant.

7. Accordingly, pursuant to s.494C of the Act, the 21 days began to run on 13 November 2013. The tribunal, it seems to me, was correct in calculating the time frames, and correct in determining that the time for filing the application to it expired on 4 December 2013. Therefore, the applicant was late in filing his application to the tribunal.

8. The tribunal has no discretion to extend time. Consequently, it does not appear that the applicant has any prospect of success in the substantive application, even if the court did allow the matter to be reinstated. 

9. I also note that the delegate’s decision indicated that the applicant had not provided evidence of a number of essential matters.  He had not provided evidence of his overseas student health cover, his financial capacity, his English proficiency, his medical examination or his substantial compliance with the conditions of a previously held visa.  This reinforces the view that the applicant has no real prospect of success in the substantive application.

10. Consequently, the court is not able to form the view that it would be in the interests of the administration of justice to allow the matter to be reinstated.  The application for reinstatement will be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  15 April 2015