Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 293
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 293
File number(s): SYG 2230 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 20 February 2025 Catchwords: MIGRATION – application for an extension of time – relevant considerations – extension of time refused. Legislation: Migration Act 1958 (Cth) ss 359, 477
Migration Regulations 1994 (Cth) cl 500.217 of sch 2, sch 4
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 20 February 2025 Place: Sydney Applicant: Appeared in person Solicitor for the First Respondent: Ms M Kelly, Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2230 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIMRANJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
2.The applicant pay the first respondent’s costs in the fixed amount of $4,189.38.
3.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
THE COURT NOTES THAT:
A.These orders have been amended pursuant to r 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), on 5 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MCCABE:
This written statement of reasons is derived from the transcript of reasons given orally at the conclusion of the hearing.
Mr Singh wants the court to review a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 August 2020 which affirmed an earlier decision of a delegate (the delegate) of the first respondent (the minister) to refuse him a Student (Temporary) (Class TU) visa (student visa). He did not approach the Court to commence the review proceedings until 24 September 2020. That is one day outside the 35-day time limit allowed for filing an appeal which is set by s 477(1) of the Migration Act 1958 (Cth) (the Act). It follows Mr Singh needs an extension of time if he is to be allowed to proceed. The Court can grant an extension time under s 477(2) of the Act where it is necessary in the interests of the administration of justice.
When considering whether to exercise that discretion, the Court will typically consider a number of factors that are relevant, including:
·the extent of the delay and the reasons for that delay;
·whether the minister would experience any prejudice if the extension of time were granted – although the prejudice to the applicant if the extension of time is not granted may also be a factor; and
·the merits of the underlying application for review. The Court must consider whether there is a case with sufficient prospects of success that it should be allowed to proceed to a final determination. That assessment is an impressionistic one; I need only be satisfied there is a reasonable or arguable case.
REVIEW OF WHAT HAPPENED
Mr Singh is a citizen of India who entered Australia in 2015 on a student visa to study a Diploma of Business. On 30 August 2018 he applied for another student visa so he could enrol in an advanced diploma. To qualify for that visa, cl 500.217 of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) says the applicant must satisfy Public Interest Criterion 4005 in sch 4 to the Regulations. Relevantly, that criterion required the applicant to undertake a medical assessment in accordance with the relevant instrument. To that end, on 12 October and 14 November 2018 Mr Singh was requested to undergo an Immigration Health Examination. I note those requests are reproduced in the court book. The request says Mr Singh should provide a valid passport in connection with the exam, although I note it says it is possible to provide an agreed form of alternative identification.
Mr Singh did not attend the examination and provide the information as requested. The delegate refused the application for a visa on 19 December 2018 because the applicant had failed to provide the requested information establishing he met the health requirements.
Mr Singh sought review of that decision in the Tribunal. On 14 January 2019, the Tribunal wrote to Mr Singh and asked for information pursuant to s 359(2) of the Act about the health checks that were required under the enactment. The Tribunal asked for that information by 28 January 2019. On 28 January 2019, Mr Singh wrote to the Tribunal requesting an extension of time to comply because his passport had been stolen. He said he was in the process of getting a new one. The police incident report reproduced at p 55 of the court book confirms the passport was stolen on 19 August 2016. Mr Singh said he needed a valid passport to get the health checks, although that is not correct: alternative identification could be agreed. He asked for a few weeks. He was given until 5 November 2019. Nothing was forthcoming from Mr Singh during that time.
The Tribunal wrote again to Mr Singh on 14 July 2020. It asked him to provide the required information by 28 July 2020 and warned that Mr Singh would forego his right to a hearing if the information was not supplied. On 28 July 2020, Mr Singh wrote and communicated essentially the same excuse: he said his passport had been stolen in 2016 and there was a delay in getting a new one while he obtained a police report. I note the application for an incident report from the police – the supposed source of the hold-up – was not requested until 20 July 2020 (court book at p 65).
On 30 July 2020, the Tribunal declined to grant the extension of time. It indicated it would proceed to decide the matter without a hearing but said the applicant could still provide relevant information if he did so quickly.
The Tribunal’s decision is dated 19 August 2020. It decided to affirm the decision. It concluded Mr Singh was unable to satisfy the relevant criteria, including in particular the requirement that he provide evidence confirming he satisfied the medical requirements.
In the decision, the Tribunal explained why it had decided against allowing Mr Singh further time to provide the requested information before proceeding to finalise the matter. It explained Mr Singh had been given ample opportunity to provide the information. It also recorded that Mr Singh’s explanation for the delay (i.e., the missing passport) was not convincing. The Tribunal noted Mr Singh had provided a copy of his passport in connection with the application for a visa and the application for review. A copy of the passport which was still valid was supplied in connection with the visa application in August 2018. (A copy appears in the court book.) The Tribunal member did not credit Mr Singh’s claims that his passport had been stolen in August 2016.
GROUNDS OF REVIEW
At the hearing before me, I discussed with Mr Singh the sort of matters that might be relevant to the exercise of the discretion to extend time under s 477(2) of the Act.
I acknowledge the delay was only very short: a day. Mr Singh did not have a good excuse for that delay. He said he was unsure what to do and took time to gather the relevant material. He also referred to financial obstacles. While that might all be understandable, it does not count in favour of the exercise of the discretion.
Ms Kelly, who appeared for the minister, did not suggest there was any prejudice to the minister arising out of the delay. I accept Mr Singh will experience prejudice if the extension of time is not granted because he will presumably be required to give up on his plans to study and return home. It follows that aspect of the discretion may count neutrally or perhaps lightly in favour of the exercise of the discretion.
The real issue in this case is the question of merit – namely whether there are reasonable prospects of success if the underlying case were to proceed to a hearing.
Mr Singh contended in the affidavit which accompanied his application for review that the Tribunal’s decision was unfair because he should have been allowed additional time to provide the information. While Mr Singh resiled from that position at the hearing before me – he acknowledged the Tribunal did not do anything wrong – I will treat his argument as a claim that the Tribunal’s decision to proceed without allowing further time was unreasonable.
I note the Tribunal complied with its procedural fairness obligations under the Act. It invited the applicant to provide information in a timely way, and he failed to comply. The Tribunal was not required to give him a hearing in those circumstances; indeed, it was unable to do so. But is there any substance to the complaint that the Tribunal was acting unreasonably when it failed to give Mr Singh further time to provide information?
The Tribunal referred to the fact Mr Singh already had been given ample time to provide the information – many, many months, in fact, on top of the time spent before the delegate. It was also obviously dissatisfied with the explanations given for that failure. The Tribunal was entitled to form that view in the circumstances: it identified the reasons why it concluded, in effect, that enough was enough.
The underlying case of the applicant lacks merit. I am not satisfied there are reasonable prospects for success if the matter went ahead. That assessment weighs heavily against exercising the discretion to extend time.
CONCLUSION
There does not appear to be any basis for concluding the Tribunal’s decision was affected by material jurisdictional error. The prospects of success if the matter were to proceed are limited, if non-existent.
When I take all these matters into account, I am not satisfied it is necessary in the interests of the administration of justice that an extension of time be given. Indeed, the interests of the administration of justice demand that the application be refused.
COSTS
The applicant referred to experiencing financial hardship, and that is not altogether surprising. That is not ordinarily a good reason not to award costs. Whether costs are actually recovered is a question that can be decided elsewhere. I am not aware of any reason why it would be inappropriate to award costs in this case, and I am satisfied that a fixed costs award in the amount of $4189.38 is an appropriate amount. That is the amount indicated by the scale, and I am told it understates what was actually spent on the file. The minister has certainly incurred expense and required work to be done in the course of these proceedings. If those costs are not met by the applicant, then they are effectively met out of the public purse.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 5 March 2025
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