Singh v Minister for Immigration

[2018] FCCA 3292

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3292

Catchwords:
MIGRATION – Application for extension of time in which to review decision of Registrar dismissing application in default of appearance by applicant – delay – inadequate explanation for delay – substantive application lacking merit – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.20.02

Migration Act 1958 (Cth), s.360A

Cases cited:

Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86

Applicant: RAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 223 of 2017

Judgment of: Judge Heffernan

Hearing date: 22 October 2018

Date of Last Submission: 22 October 2018

Delivered at: Adelaide

Delivered on: 22 October 2018

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr Evans

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The applicant’s application to extend the time in which to make an application for judicial review is dismissed.

2. The applicant do forthwith pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 223 of 2017

RAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. This is an application for an extension of time in which the applicant is permitted to file his application for a review of the decision of Registrar Colbran.  These proceedings were listed for a call-over before Registrar Colbran on 22 July 2018 and the applicant was on notice of the fact that he was required to attend.  He failed to attend, and the proceedings were dismissed in default of appearance.

2. The applicant had seven (7) days in which to make an application, pursuant to r.20.02 of the Federal Circuit Court Rules 2001 (Cth), to review a decision of the Registrar. He made his application 12 days out of time. Accordingly, this matter proceeds by way of an application for an extension of time in which to apply for that review.

3. The applicant relies on his affidavit, dated 10 July 2018.  The first respondent relies upon the affidavit of Mr Evans, dated 3 August 2018, and an affidavit from Ms Stokes, dated 12 July 2018. 

4. There are two aspects I must look at when considering the merits of the application to extend time.  They are, the reasons for the delay, and the substantive merits of the application for judicial review.  I must also consider the question of prejudice to the first respondent, but the first respondent concedes that they would not suffer any prejudice that could not be remedied by an order for costs.

5. I am not satisfied that the applicant has provided an adequate explanation for the delay in this matter, but there is a further and more fundamental problem faced by the applicant, and that relates to the merits of the proceedings.

6. The applicant complains that he was denied procedural fairness, in effect, because he had not been notified of the Tribunal hearing.  The review application was dismissed by the Tribunal because the applicant failed to attend.

7. The applicant has indicated that he does not dispute that he did not attend, and that he did not provide a medical certificate to the Tribunal.  He does not dispute that he did not seek an adjournment of the Tribunal hearing before it was dismissed.

8. I am satisfied that the Tribunal did invite the applicant to attend at the hearing on 23 May 2017, pursuant to s.360A of the Migration Act 1958 (Cth). I note that the Court Book in this matter shows that the applicant was sent a letter on 1 May 2017 inviting him to attend at the Tribunal hearing, and providing information sheets. I also note the authority of Sainju v the Minister for Immigration and Citizenship,[1] which holds that the email sent to the applicant was deemed to have been received by the end of the day on which it was sent to him.

   [1] (2010) 185 FCR 86.

9. The application for judicial review includes a complaint by the applicant that the Tribunal could have called him if he was not present at the hearing.

10. I accept the submission of the first respondent that there was no general duty on the Tribunal to search its records to find an alternative way of contacting an absent review applicant. 

11. I am satisfied, in all the circumstances, that it can be said with some confidence that there is no reasonable prospect of success in the substantive application.  For that reason alone, it would be futile to grant the application for an extension of time in which to apply for review of the Registrar’s decision.

12. However, as I have already noted, I am further of the view that the applicant has not provided a satisfactory explanation for his delay in making this application.

13. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 16 November 2018