FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 310 |
| Catchwords: MIGRATION – Skilled (Residence) (Class VB) Subclass 885 – application for extension of time – application for review of the decision by the Administrative Appeals Tribunal – applicant almost two years out of time – insufficient explanation for delay – not in the interests of the administration of justice to grant the application – extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.466, 467 Migration Legislation Amendment Regulations 2011 (No.1) (Cth), sch.4 para.4 |
| Applicant: | SUKHRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2154 of 2016 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing date: | 22 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the First Respondent: Solicitors for the Second Respondent: | Ms Groves of Australian Government Solicitor The Second Respondent filed a submitting notice save as to costs |
ORDERS
The application for an extension of time is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2154 of 2016
| SUKHRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of…
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- Case
- [2019] FCCA 310
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether to grant an extension of time for the applicant to seek judicial review of the Tribunal's decision. This required consideration of section 477(2) of the Migration Act 1958 (Cth), which permits the Court to extend the 35-day time limit if certain conditions are met. The Court also had to consider the applicant's ongoing failure to satisfy PIC 4005, as determined by Medical Officers of the Commonwealth, and the Tribunal's obligation under Regulation 2.25A of the Migration Regulations to accept such opinions as correct for the purposes of deciding whether a person met the health criteria.
Her Honour Judge Kirton QC determined that it was not in the interests of the administration of justice to grant the application for an extension of time. The applicant was almost two years out of time for his judicial review application. The Court noted that the applicant had been notified of the health concerns in 2012 and had undergone multiple health assessments, with consistent negative outcomes regarding PIC 4005. Despite opportunities to comment and provide further information, including evidence of private health insurance, the Medical Officers of the Commonwealth maintained their opinions. The Tribunal was bound by these opinions under Regulation 2.25A(3).
Consequently, the Court refused the application for an extension of time and ordered the applicant to pay the Minister's costs.
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
Ratio Decidendi
Legal Principle Established
The Applicant applied for judicial review of the Tribunal’s decision on 5 October 2016. As the Tribunal’s decision was made on 15 September 2014, the 35 day time limit for applying for judicial review expired on 20 October 2014: s.477(1) Migration Act 1958 (Cth) (Migration Act). The Applicant is therefore almost two years out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied. I have determined that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to grant the application. I refuse the extension of time application and order the Applicant to pay the Minister’s costs. The Applicant applied for the Visa on 21 December 2009. The Department of Immigration and Border Protection (Department) notified the Applicant on 13 November 2012 that he was required to undergo a health assessment to determine whether he met the health requirements for the grant of the Visa. The Applicant attended a health assessment on 4 December 2012. On 18 February 2013 a Medical Officer of the Commonwealth (MOC) provided an opinion that the Applicant suffered from: “Significant chronic renal disease” and that the “condition is likely to be progressive”[1]. The MOC concluded that the Applicant did not satisfy the health requirements of Public Interest Criterion 4005 (PIC 4005) of sch.4 to the Migration Regulations 1994 (Cth) (Regulations) and therefore did not meet the health requirements for the grant of the Visa (First MOC Opinion).[1] Court Book (CB) 90. The Applicant was sent the First MOC Opinion and invited to comment. In a letter to the Department on 10 April 2013 the Applicant said that he:a)Was only diagnosed with renal disease in mid-2012.b)Lived a healthy lifestyle and he did not understand why he had developed renal disease.c)Would to go back to India if he needed an organ transplant in the future.d)Had private health insurance which should cover any medical services that might otherwise result in significant cost to the Australian community. The Applicant provided further documentary evidence of his health insurance on 13 May 2013. This information was subsequently provided by the Department to a MOC. On 18 June 2013 a MOC again determined that the Applicant did not meet PIC 4005[2] (Second MOC Opinion).[2] CB 154-155. A delegate of the Minister refused to grant the Visa on 24 June 2013 on the basis that the Applicant did not satisfy PIC 4005 as required by cl.885.224 of sch.2 to the Regulations (Delegate’s Decision)[3]. [3] CB 150-162. On 27 June 2013 the Applicant lodged an application for review of the Delegate’s Decision in the Tribunal[4]. [4] CB 169-180. The Applicant’s representative wrote to the Tribunal on 15 August 2013 and requested that the medical examinations be conducted again, on the basis that:[…] the applicant would most likely pass the medicals with his condition having markedly improved from the time that the medicals were considered at the time of decision[5].[5] CB 184.