Singh v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 314

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 314

File number(s): SYG 1480 of 2022

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 27 April 2023

Catchwords: MIGRATION LAW – application for extension of time – decision of Administrative Appeals Tribunal – Skilled (Provisional) (Temporary Graduate) (subclass 485) visa – where application for judicial review was filed some 34 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – where no identified prejudice to Minister in granting the extension of time – balanced against inadequate explanation for delay and finding that proposed grounds of review are largely misconceived – consideration of section 375A non-disclosure certificate – application dismissed with costs.

Legislation:
Migration Act 1958 (Cth), ss 116, 375A, 430, 368, 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 2.05, 29.05

Migration Regulations 1994 (Cth), Schedule 2, cl 100.221

Cases cited:
Re Minister for Immigration and Multicultural affairs; Ex Parte Duraisrajasingham (2000) 58 ALD 609

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604

WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736

Division: Division 2 General Federal Law

Number of paragraphs: 102

Date of last submission/s: 25 January 2023

Date of hearing: 25 January 2023

Place: Melbourne

Solicitor for the Applicant: The Applicant appeared in person

Solicitor for the First Respondent: Mr M Sheedy of Sparke Helmore Lawyers
ORDERS

SYG 1480 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GURPREET SINGH

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

27 April 2023

THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time filed on 12 October 2022 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $3,930.

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).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION

Before the court is an application for an extension of time to apply for judicial review of a decision to cancel the applicant’s Temporary Graduate (Class VC) (Subclass 485) visa (‘subclass 485 visa’) granted on 29 June 2018.
BACKGROUND
On 29 June 2018, the applicant was granted a subclass 485 visa, as a member of the family unit of the primary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 314
Case: [2023] FedCFamC2G 314
Decision Date

CaseChat Overview and Summary

The applicant, Mr Singh, sought an extension of time to apply for judicial review of a decision to cancel his Temporary Graduate visa. The matter was before the Federal Circuit and Family Court of Australia. The respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, opposed the application.

The central legal issue before the court was whether Mr Singh’s application for an extension of time should be granted. The applicant argued that there were exceptional circumstances justifying the delay, including his mental health issues and difficulties in finding legal representation. The Minister contended that the application was not made within a reasonable time and that the applicant had not demonstrated any exceptional circumstances warranting an extension.

The court found that Mr Singh had not provided sufficient evidence to demonstrate exceptional circumstances. The applicant’s mental health issues, while acknowledged, did not sufficiently explain the delay in lodging the application. Additionally, the court noted that Mr Singh had been aware of the need to seek legal advice and take action regarding his visa status for some time. The court concluded that the application for an extension of time should be dismissed.

The court dismissed the applicant’s application for an extension of time. The Minister was ordered to pay costs in the amount of $3,930, in line with the usual order in such proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Before the court is an application for an extension of time to apply for judicial review of a decision to cancel the applicant’s Temporary Graduate (Class VC) (Subclass 485) visa (‘subclass 485 visa’) granted on 29 June 2018.BACKGROUND On 29 June 2018, the applicant was granted a subclass 485 visa, as a member of the family unit of the primary visa holder, the applicant’s wife (at the time). The subclass 485 visa was granted for a period of two years.[1][1] See Court book at page 30.Notice of Intention to Consider Cancellation of subclass 485 visa issued 2 August 2019 By letter dated 2 August 2019, sent to the prison at which he was remanded, the applicant was issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his visa. The covering letter requested that arrangements be made for the applicant to sign an acknowledgment of receipt before a witness.[2][2] Court book at page 1. The NOICC was issued on the basis that the Department of Home Affairs (‘the Department’) was advised by Western Australia Police that the applicant had been charged with various offences involving his wife and 14-month old daughter.[3][3] Court book at page 2. The NOICC included details of the material facts relied upon by the police, which led to the charges being laid, as well as information provided by the Department of Communities, responsible for child protection in Western Australia.[4][4] Court book at page 3 and following. The applicant was invited to comment on the information provided and provide information and any supporting evidence as to why his visa ought not be cancelled.[5][5] Court book at page 4. On 15 August 2019, the NOICC was reissued by registered post to the applicant’s last known residential address.[6] This letter contained the same relevant information, and was received by the applicant.[7][6] Court book at page 7 and following.[7] Court book at page 12. By email dated 22 August 2019, the applicant provided a written response to the NOICC in which he provided an explanation and context for his behaviour which led to the charges being laid against him. Relevantly, the applicant stated that he had struggled to find employment, that he was suffering from severe depression and anxiety, and that on the day of the incident, his ‘brain went numb and I really don’t know how the situation got escalated’.[8][8] Court book at page 15. In his response to the NOICC, the applicant went on to say that his visa ought not be cancelled as he wanted to have his family back and that he is taking steps to deal with his mental ill health and to avoid a similar incident occurring in future.[9][9] Court book at pages 15 to 16. The applicant also provided various documents in support of his response to the NOICC, including a letter from his wife sent to the magistrate dealing with his criminal charges,[10] as well as a medical report from his GP.[11][10] Court book at pages 17 to 18.[11] Court book at page 19.Cancellation of subclass 485 visa on 18 September 2019

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I therefore dismiss the applicant’s application for an extension of time.CONCLUSION For each of the reasons, I make the orders set out at the commencement of these written reasons. In the Minister’s written submissions filed in this matter, the Minister also seeks costs fixed in the sum of $3,930.[46] As stated, the applicant did not file any written submission nor did he address this issue in his oral submissions.[46] Minister’s Outline of Submissions filed on 11 January 2023 at paragraph [40]. In circumstances where the applicant has been unsuccessful, the usual order for costs should be made. In this case, the amount sought is consistent with the costs for such a proceeding in Schedule 2 of the Rules. I therefore order that the applicant pay the first respondent’s costs fixed in the sum of $3,930.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 1480 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	27 April 2023
Catchwords:	MIGRATION LAW – application for extension of time – decision of Administrative Appeals Tribunal – Skilled (Provisional) (Temporary Graduate) (subclass 485) visa – where application for judicial review was filed some 34 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – where no identified prejudice to Minister in granting the extension of time – balanced against inadequate explanation for delay and finding that proposed grounds of review are largely misconceived – consideration of section 375A non-disclosure certificate – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 116, 375A, 430, 368, 477 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 2.05, 29.05 Migration Regulations 1994 (Cth), Schedule 2, cl 100.221
Cases cited:	Re Minister for Immigration and Multicultural affairs; Ex Parte Duraisrajasingham (2000) 58 ALD 609 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division:	Division 2 General Federal Law
Number of paragraphs:	102
Date of last submission/s:	25 January 2023
Date of hearing:	25 January 2023
Place:	Melbourne
Solicitor for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Mr M Sheedy of Sparke Helmore Lawyers

SYG 1480 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GURPREET SINGH Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	27 April 2023