Singh v Minister for Immigration and Anor

In *Singh v Minister for Immigration and Anor*, the applicant, Balvinder Singh, sought judicial review of a decision by the Migration Review Tribunal (Tribunal) which affirmed a delegate's decision to refuse him a Skilled (Residence) (Class VB) visa. The applicant's grounds for review included allegations of mishandling of his application by State Migration Western Australia, failure to receive confirmation of decline, and that the Tribunal overlooked facts and evidence in his case. The Minister argued that the application was lodged out of time and that no jurisdictional error had been established.

The Federal Circuit Court was required to determine two primary legal issues. Firstly, whether the applicant's judicial review application was filed within the prescribed 35-day time limit under section 477(1) of the *Migration Act 1958* (Cth). Secondly, if the application was out of time, whether the Court had the power to grant an extension of time under section 477(2) of the *Migration Act*, and if so, whether the applicant had met the necessary conditions for such an extension.

The Court found that the applicant's judicial review application was lodged one day outside the 35-day time limit, as the date of the migration decision was correctly identified as 1 October 2014, the date of the Tribunal's written statement. Consequently, the Court's jurisdiction to hear the matter was contingent on granting an extension of time. However, the Court held that section 477(2) of the *Migration Act* mandates that an application for an extension of time must be made in writing and must specify why it is necessary in the interests of the administration of justice. The Court noted that the applicant had not made a written application for an extension of time, nor had he provided an affidavit explaining the delay and demonstrating why an extension was necessary in the interests of justice, as required by Rule 44.05(2)(c) of the *Federal Circuit Court Rules 2001* (Cth). Applying the principles from *WZASQ* and *Sandan*, the Court concluded that these requirements were mandatory and not severable.

Accordingly, the Court dismissed the applicant's application under section 477(2) of the *Migration Act* for an extension of time to lodge his application for judicial review. The Court also ordered that the name of the second respondent be amended to read "Administrative Appeals Tribunal".