Singh v Minister for Immigration and Citizenship

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) to refuse to accept an application for review of a delegate's decision to refuse a Partner (Temporary) (Class UK) visa. The applicant, an Indian national, had applied for a protection visa in 1993, which was refused. He later applied for a visa based on his marriage to an Australian citizen. The delegate refused this visa application, finding no evidence of a genuine and continuous relationship. The applicant then sought review of this decision by the MRT, but his application was lodged out of time.

The primary legal issue before the court was whether the MRT had jurisdiction to review the delegate's decision, given that the applicant's application for review was lodged after the prescribed time limit. This involved determining the date on which the applicant was taken to have been notified of the delegate's decision and the subsequent calculation of the statutory time limit for lodging an application with the MRT. The court also considered the effect of the applicant's correspondence with the MRT, which sought to explain the delay and requested the Tribunal exercise its inherent powers.

The court applied sections 347(1)(b) and 494B of the *Migration Act 1958* (Cth) and regulation 4.10 of the *Migration Regulations 1994* (Cth). Section 347(1)(b) requires applications for review to be made within the prescribed period. Regulation 4.10 specifies these periods, and for decisions covered by subsection 338(2) or (7A) of the Act, this period is 21 days after the applicant receives notice of the decision. Section 494B outlines methods by which the Minister may give documents to a person, including dispatch by prepaid post. The MRT determined that the applicant was notified of the delegate's decision on 21 February 2013 by letter dispatched by post. It further found, pursuant to section 494C of the Act, that the applicant was taken to have been notified on 4 March 2013. Consequently, the prescribed period for lodging an application for review expired on 25 March 2013. As the applicant's application was lodged on 9 April 2013, it was out of time. The MRT concluded it had no discretion to extend this time limit and therefore lacked jurisdiction.

The court dismissed the application, upholding the MRT's finding that it lacked jurisdiction because the application for review was not lodged within the time prescribed by the *Migration Act* and *Regulations*. The applicant's explanations for the delay, including limited English and lack of legal assistance, did not provide the MRT with a basis to extend the statutory time limits.