Singh v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before me is a notice of objection to the competency of an appeal filed pursuant to r 36.72 of the Federal Court Rules 2011 (Cth). More particularly, the respondent opposes an application filed by Mr Singh on 22 November 2012 for an extension of time in which to file an appeal from a decision of a Federal Magistrate. In summary, the Minister objects to the competency of any appeal from the decision of the Federal Magistrate - and any related application for an extension of time in which to file the appeal - on the basis that s 476A(3)(a) of the Migration Act 1958 (Cth) ("the Act") clearly excludes any appeal from a judgment of the Federal Magistrates Court where orders are made or refused pursuant to s 477(2) of the Act.

Background 2 The background to this proceeding is explained in the decision of his Honour below in Jagpreet Singh v Minister for Immigration & Citizenship [2012] FMCA 1204. Relevantly, on 10 July 2011 Mr Singh applied for a student temporary class TU visa. A delegate of the Minister refused the application on 20 September 2011. On 20 October 2011 Mr Singh lodged an application for review of the delegate's decision with the Migration Review Tribunal ("the Tribunal"). By letter dated 10 November 2011 the Tribunal informed Mr Singh that it had formed a preliminary view that it did not have jurisdiction to conduct the review because the application had not been received within the prescribed statutory period of 21 days. The Tribunal confirmed that view in a decision made on 12 December 2011. 3 In an application for judicial review made on 14 February 2012 Mr Singh sought review of the Tribunal's decision in the Federal Magistrates Court. Materially, s 477 of the Act provides as follows: Time limits on applications to the Federal Magistrates Court (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 4 The Federal Magistrate observed in the decision below that the application before the Court was made 29 days outside the time prescribed in s 477(1) of the Act, and could only proceed if the applicant succeeded in an application for extension of time pursuant to s 477(2) of the Act (at [6]). 5 While noting the obvious prejudice to Mr Singh in the event of the failure of his application, which prejudice favoured an exercise of discretion in his favour, after considering the matter his Honour dismissed the application. In particular, his Honour observed as follows: [12] However, against that matter is, in particular, the difficulty that the applicant would face in the primary application. Looking back to the decision made on 20 September (which was the subject of application on 20 October), it is plain that the Tribunal did not have jurisdiction to determine the application. The Act is clear in its expression that the Tribunal's jurisdiction is only enlivened upon receipt of an approved application form within the prescribed time limit for making such an application: see s.347(1)(b) of the Act. The Tribunal was correct in its finding that the applicant was seeking a review of a Migration Review Tribunal reviewable decision which is covered by s.338(2) of the Act that the prescribed period for making a valid application was twenty-one days. [13] The Tribunal went to some trouble to consider the question of transmission of the original decision and found that it was satisfied that the requirements for notice of the delegate's decision had been addressed, and that, accordingly, it was satisfied that the applicant had been properly notified of the decision on 20 December 2011. It followed that the prescribed period in which the application for review could be lodged ended on 11 October 2011. Upon that basis, it follows that the application received on 20 October 2011 was out of time and the Tribunal had no jurisdiction to review it. Again, in that case, as in this instance, the applicant made submissions concerning the intervention of human error, although in that instance there was no capacity to waive and the Tribunal was unable to waive that matter. It follows that when one considers the prospects of the substantive application they can only be characterised as poor to improbable. [14] Finally, there are the interests of the public at large which as a matter of public administration require that the Court's resources only be used in cases which plainly warrant the application of judicial resources. An application that has little to no prospect of success ought not reasonably be permitted to continue to proceed to the disadvantage of other litigants who seek access to the Courts. It follows, having regard to all those matters, I am of the view that it is not in the interests of the administration of justice that in this instance the applicant's application for extension of time be granted. His application for extension of time is dismissed. As the application for extension of time has been dismissed, the application itself is incompetent and it too must be dismissed. 6 The decision of the Federal Magistrate was delivered, ex tempore, on 15 October 2012.