Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] FedCFamC2G 1025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1025

File number(s):	SYG 914 of 2020
Judgment of:	JUDGE SKAROS
Date of judgment:	11 October 2024
Catchwords:	MIGRATION – Extension of time application – Student visa – grounds of procedural fairness – whether Tribunal considered adverse information before it – application granted
Legislation:	Migration Act 1958 (Cth) s477(2)
Cases cited:	Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division:	Division 2 General Federal Law
Number of paragraphs:	5
Date of hearing:	10 October 2024
Place:	Parramatta
Solicitor for the Applicant:	Self-represented litigant
Solicitor for the First Respondent:	Mr Hillyard, Sparke Helmore
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 914 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GURPARTAP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	11 OCTOBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time for make the originating application is extended up to and including 16 April 2020.

THE COURT FURTHER ORDERS THAT:

2.The application is listed for final hearing on 6 November 2024 at 10:15am.

3.The Applicant is to file and serve any written submissions at least 14 days before the Final Hearing.

4.The Minister is to file and serve any written submissions at least 7 days before the Final Hearing.

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
(Ex tempore reasons settled from transcript)

JUDGE SKAROS

1. Before the Court is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 19 February 2020. The Tribunal affirmed the decision of the delegate of the first respondent (the Minister) to cancel the applicant’s student visa (the visa).

2. The applicant commenced proceedings in this Court on 16 April 2020. Section 477(1) requires that the applicant file his application for judicial review of the Tribunal’s decision within 35 days after the date of the Tribunal’s decision. The applicant filed his application 22 days outside the prescribed 35-day period. He, therefore, requires an extension of time.

3. The principles for granting an extension of time are well established and have been considered in cases such as Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [18]. They provide for the Court to consider various factors, which are not exhaustive, but generally include: the length of the delay, the reason for the delay, any prejudice to the Minister, and the merits of any proposed substantive application. When considering the merits, the Court need only consider it at an impressionistic level and determine whether the proposed grounds are arguable or sufficiently arguable. It is a relatively low threshold.

4. In considering each of these factors, the Court notes the following:

   (1)The length of the delay: the Court considers 22 days to be a relatively a short period of time.

   (2)Reason for the delay: the applicant’s explanations for the delay were not entirely convincing and there were many deficiencies in his explanation.

   (3)Merits of the judicial review application: The merits of the substantive application is arguably the most important factor when the Court considers these types of applications. When considering the substantive grounds of the application, at a merely impressionistic level, which is a low threshold, there is a potentially arguable ground of error relating to the manner in which the Tribunal dealt with (or did not deal with) the adverse information on the Department’s file. These issues require ventilation at a final hearing, and for submissions to be made in relation to them, so that the Court can make a proper assessment of these grounds.

   Conclusion

5. Having regard to all the foregoing considerations, the Court is satisfied that, in the circumstances of this case, it is in the interest of administrative justice to grant the extension of time.

I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Skaros.

Associate:

Dated:       11 October 2024