SINGH v Minister for Immigration

[2012] FMCA 1204

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1204

MIGRATION – Judicial review – Migration Review Tribunal – review of delegate’s decision – application lodged out of time – application for extension of time – consideration of principles for granting an application for extension of time – application made in writing – whether the granting of such an application would be in the interests of the administration of justice – no jurisdiction for Tribunal to determine the application – little to no prospect of success – requirement that the Court’s resources only be used in cases which plainly warrant the application of judicial resources – application for extension of time dismissed - application dismissed.

Migration Act 1958 (Cth), ss.338(2), 347(1)(b), 477(1), 477(2)

Applicant: JAGPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 149 of 2012

Judgment of: Burnett FM

Hearing date: 15 October 2012

Date of Last Submission: 15 October 2012

Delivered at: Brisbane

Delivered on: 15 October 2012

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent:

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. That the application for leave to extend time to make application filed 14 February 2012 be dismissed.

2. That the application filed 14 February 2012 be dismissed.

3. That the applicant pay the respondent’s costs fixed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 149 of 2012

JAGPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 10 July 2011, the applicant, a citizen of India, applied for a student temporary class TU visa. In that application, he provided to the Department a contact point via an email address and did not appoint an authorised recipient to receive correspondence on his behalf. 

2. At that time he provided to the department various material in support of his application.  On 19 August, the delegate invited the applicant to comment on some information it had relating to funds in his account.  The applicant responded to that invitation by providing some information. Notwithstanding that matter, the delegate decided to refuse the applicant’s application on the basis that he did not satisfy the relevant migration regulations.  The decision to refuse was made on 20 September 2011 and the applicant was notified by email on that day.

3. The decision was a privative clause decision and is not subject to review.  In any event, on 20 October 2011, the applicant lodged an application for review with the Tribunal.  By a letter of 10 November 2011, the Tribunal wrote to the applicant informing him that it had formed a preliminary view that it did not have jurisdiction to conduct the review because the application had not been received within the prescribed period, that is, twenty-one days.

4. The applicant replied to the Tribunal identifying reasons for that failure, claiming in particular that it was the fault of the applicant’s appointed representative who had inadvertently sent the material to the wrong address and that it was a genuine error caused by “human error.”  Notwithstanding that, the Tribunal by its decision of 12 December 2011 determined that it did not have jurisdiction to determine the application for review made by the applicant. 

5. In doing so, it was satisfied that the notice by the delegate was forwarded on 20 September to the applicant’s email address as provided by him, that the email transmission had gone through and therefore that notice of the decision was received by the applicant.  On that basis, it concluded that the review application was not received within time and was therefore not valid and, accordingly, the Tribunal had no jurisdiction to review it.  As I have noted, it considered the applicant’s explanation.

6. The applicant now seeks review of the Tribunal’s decision to dismiss a review of the delegate’s decision. The relevant decision is the decision of 12 December 2011. The application made to review that decision was made on 14 February 2012. That application itself is also troubled by an issue of delay. The application now before this court was made twenty-nine days outside the time prescribed in s.477(1) of the Migration Act1958 (Cth) (the Act), and it may only proceed if the applicant succeeds in an application for extension of time which is permitted under s.477(2) of the Act.

7. That application is opposed.  It is well settled that the principles for granting an application for an extension of time require that an application for such an order first needs to be made in writing; second, it must specify why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and third, the court must consider it necessary in the interests of the administration of justice to make the order extending time.

8. The applicant has addressed the first formal requirement, that is that he has made his application for an extension of time in writing.  Concerning the second matter, the factors to be considered include, without listing them exhaustively, the extent of the delay, the reasons for delay, any prejudice to the respondent, the impact that the refusal of the application would have upon the applicant, the interests of the public at large and the merits of the substantive application. 

9. Although there is some issue concerning the material filed by the applicant addressing those matters, I have also taken into consideration the matters placed before me today by the applicant which are not sworn to, but which constitute his submissions from the bar table.  In broad terms, the reasons advanced by the applicant for his failure to bring his application within time are that, firstly, he was in hospital at the relevant time; and, secondly, he had engaged a private agent to handle his application, but the private agent did so incompetently.

10. The applicant has otherwise submitted that the merits of the application, that being the application the subject of the decision on 20 September, also favour the exercise of the discretion to extend time.

11. I note the obvious prejudice that may arise to the applicant in the event that he fails in this application, that is that he will be shut out forever from bringing any application.  That matter appears to favour the exercise of the discretion in favour of the applicant.

12. However, against that matter is, in particular, the difficulty that the applicant would face in the primary application. Looking back to the decision made on 20 September (which was the subject of application on 20 October), it is plain that the Tribunal did not have jurisdiction to determine the application. The Act is clear in its expression that the Tribunal’s jurisdiction is only enlivened upon receipt of an approved application form within the prescribed time limit for making such an application: see s.347 (1)(b) of the Act. The Tribunal was correct in its finding that the applicant was seeking a review of a Migration Review Tribunal reviewable decision which is covered by s.338(2) of the Act that the prescribed period for making a valid application was twenty-one days.

13. The Tribunal went to some trouble to consider the question of transmission of the original decision and found that it was satisfied that the requirements for notice of the delegate’s decision had been addressed, and that, accordingly, it was satisfied that the applicant had been properly notified of the decision on 20 December 2011. It followed that the prescribed period in which the application for review could be lodged ended on 11 October 2011.  Upon that basis, it follows that the application received on 20 October 2011 was out of time and the Tribunal had no jurisdiction to review it.  Again, in that case, as in this instance, the applicant made submissions concerning the intervention of human error, although in that instance there was no capacity to waive and the Tribunal was unable to waive that matter.  It follows that when one considers the prospects of the substantive application they can only be characterised as poor to improbable.

14. Finally, there are the interests of the public at large which as a matter of public administration require that the Court’s resources only be used in cases which plainly warrant the application of judicial resources.  An application that has little to no prospect of success ought not reasonably be permitted to continue to proceed to the disadvantage of other litigants who seek access to the Courts.  It follows, having regard to all those matters, I am of the view that it is not in the interests of the administration of justice that in this instance the applicant’s application for extension of time be granted.  His application for extension of time is dismissed.  As the application for extension of time has been dismissed, the application itself is incompetent and it too must be dismissed.

15. The respondent seeks costs fixed in the sum of $4,800.00.  The sum of $4,800.00 is a reasonable sum being a sum less than the sum for costs which would otherwise be ordered under the Court scale.  The applicant resists the respondent’s application for costs principally on the grounds that he does not have the financial resources to meet any such costs order. Unfortunately, that ground is not a ground for refusing an otherwise proper application for costs. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  13 December 2012