Singh v Minister for Immigration - [2013] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1310

Catchwords:
MIGRATION – Application for extension of time for judicial review – review of Migration Review Tribunal decision – costs.

Legislation:
Migration Act 1958 (Cth), ss.477, 348(1), 347, 66, 494

Migration Regulations, regs.4.10(1), 2.16

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348 to 349
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCR 657
Xie v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 172
SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66 S427/2007
Tay v Minister for Immigration and Citizenship and Another [2010] FCAFC 23
SZFDE and Others v Minister for Immigration and Citizenship and Another [2007] HCA 35

Applicant:

PUNINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 82 of 2013

Judgment of:

Judge Jones

Hearing date:

9 July 2013

Date of Last Submission:

9 July 2013

Delivered at:

Melbourne

Delivered on:

13 September 2013

REPRESENTATION

Counsel for the Applicant:

In Person together with Mr Kumar (friend of the Applicant)

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) is refused.!Unexpected End of Formula
The applicant pay the first respondents costs of $6,646.00 within 21 days of the date of this Order.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 82 of 2013

PUNINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time to proceed with an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 30 July 2012, which decided it lacked jurisdiction to review a decision of a delegate of the Minister to refuse to grant the applicant a Skilled Independent Overseas Student (Residences) (Class DD) visa (“skilled migration visa”).
As the application was made on 22 January 2013, the application was some 4 months outside the 35 day limit provided under s.477(1) of the Migration Act 1958 (“the Act”).
Section 477 relevantly provides:
“(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of…

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: [2013] FCCA 1310
Decision Date: 13 September 2013

CaseChat Overview and Summary

In *Singh v Minister for Immigration*, the applicant, an Indian citizen, sought judicial review of a migration decision. The dispute concerned the applicant's application for a skilled migration visa and the subsequent timeliness of his application for judicial review. The matter came before Judge Jones of the Federal Circuit Court.

The primary legal issue before the Court was whether to extend the 35-day time limit for making an application for judicial review under section 477 of the *Migration Act 1958* (Cth). This required the Court to consider the applicant's reasons for the delay and whether it was necessary in the interests of the administration of justice to grant an extension. The Court also had to determine the date from which the 35-day period commenced, particularly in light of the applicant's assertion that his agent lodged the Migration Review Tribunal (MRT) file out of time.

The Court reasoned that the discretion to extend the time limit under section 477(2) should be informed by factors such as the reasons for the delay, the acceptability of those reasons, any prejudice to the respondent, and the merits of the substantive application. The Court referred to the principles outlined in *Hunter Valley Developments Pty Ltd v Cohen* as guiding its exercise of discretion. The applicant's stated reasons for delay included financial difficulties in organising funds for a lawyer and a dispute with his agent regarding the late lodgement of his MRT file. The Court noted that the applicant had been responsive to previous communications from the Minister's delegate via email, which was the authorised method of communication.

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

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Ratio Decidendi

Legal Principle Established

Section 477 relevantly provides:“(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.(3)In this section:date of the migration decision means:........................................(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or..........................................(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.” In his application for judicial review, the applicant set out the grounds for review as follows:“1.I was financially poor so I was organising the funds for the lawyer. 2.As the MRT file was lodged out of time by my agent I wrote back to them stating that its lawyers fault and was waiting for the decision which they made on 14 January 2013.” In the applicant’s affidavit filed 22 January 2013 the applicant deposed:“1. That my MRT file should be lodged.2.Should be able to get some compensation amount from my lawyers attached a copy of the decision made on 30 July 2012.” As the first respondent correctly observes in its submissions, the discretion provided to the Court to extend the 35 day period is appropriately informed by consideration of factors which include the reason(s) for the delay and whether the reasons are unacceptable, any prejudice suffered by the respondent, and the merits of the substantive application. The Court is satisfied that the approach set by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[1] is one which ought appropriately inform this Court in the exercise of its discretion.[1] (1984) 3 FCR 344, 348 to 349 The applicant is an Indian citizen. He arrived in Australia in 2006, it appears from his submission under a student visa. On application for the skilled migration visa, the applicant authorised the Minister to communicate with him via email, (…85@yahoo.com) (Court Book (“CB”) 4). At the hearing the applicant confirmed that this was his email address. The Court notes that various requests for information from the Minister’s delegate were sent to the applicant by email to his email address and the applicant was responsive to those requests (CB 57-68, 101-106, 123-127). This email trail occurred over the period from the date of the applicant’s application for the visa to around 30 April 2012.