Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1570

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules)), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. These reasons relate to an application for an extension of time to commence judicial review proceedings.
2. Mr Manpreet Singh has been convicted of at least 45 criminal offences. A delegate of the minister (the first respondent in these proceedings) exercised the discretion to cancel Mr Singh's visa under s 116(1)(g) of the Migration Act 1958 (Cth). Mr Singh challenged that decision in the Administrative Review Tribunal. The Tribunal's decision to affirm the cancellation decision was made on 5 December 2024 - although I note the cover page of the decision suggests the decision was actually made on 5 November 2024. That is plainly a typographical error. The decision was communicated to Mr Singh by email on 10 December 2024. (It is not clear why there was a five-day delay in communicating the decision, but that is what happened.)
3. Mr Singh said he approached the Court after he received the decision. He attempted to a file an application for review. The filing was rejected because the Court's registry said the application was out of time and required an application for an extension of time. Mr Singh took until 22 January 2025 to file his application for judicial review with a request for an extension of time after corresponding with the Court's registry. That is a problem because s 477(1) of the Act says an applicant has 35 days from the date of the migration decision to commence the appeal. It follows Mr Singh's application for review was filed 13 days outside the 35-day time limit if one assumes time began to run on 5 December 2024. If his application was filed out of time, Mr Singh must convince the Court he should be given an extension of time under s 477(2) of the Act before he is allowed to proceed.
4. The power to extend time is discretionary. It is available where the Court is satisfied making the order is "necessary in the interests of the administration of justice".
5. The Act does not set out any particular factors which must be considered in the exercise of that discretion. The following matters are likely to be relevant:
   • The length of the delay and the adequacy of any explanation for that delay;
   • Whether the respondent or any other party will experience prejudice if the extension of time is granted; and
   • The merits of the underlying application.
6. I will address each of those considerations below. Before I do so, it is important to reflect on the fact the Commonwealth has provided an extensive and rigorous review process for those challenging migration decisions. Applicants must not rest on the generous rights of review they have been given. Missing a deadline is not a trivial matter. That much is clear from the language in s 477(2) of the Act which directs attention to whether it is "necessary in the interests of the administration of justice" to grant an extension of time. As I approach this application, I must keep in mind the public interest in good government which balances a concern for individual justice with the (sometimes competing but still important) values of efficient and timely decision-making.
7. I am conscious that the applicant in this case may have been placed in a difficult position because the Tribunal did not inform him of the decision promptly - and the date of the decision was in any event misstated because of what one assumes is an administrative error.

The length of the delay and the adequacy of any explanation for that delay

1. As a matter of law, the appeal period commenced on the day the decision was made. There does not appear to be any dispute that the decision was made on 5 December 2024: the presiding member's signature is automatically recorded by the computerised system as being affixed on that date. But the decision statement is dated 5 November 2024. That makes no sense. The hearing did not occur until 28 November 2024. I infer the reference to 5 November was a typographical error.
2. Typographical errors occur, but they are regrettable - particularly where they might cause confusion.
3. There was then a delay in communicating news of the decision to the applicant. The decision and statement of reasons were not sent out by the Tribunal until after 5.00 pm on 10 December 2024. (The correspondence and the statement of reasons are reproduced in exhibit one, the court book, at pp 161ff.) While the Tribunal's registry needed some little time to undertake the administrative process of notifying the applicant of a decision, it is not clear why it took five days to notify the applicant of the decision in this case.
4. The letter of notification includes a document that describes the applicant's review rights. That document correctly states the time for an appeal commences on the date of the decision - but neither the cover letter nor the attached document specifies the date on which the decision was made. The applicant was left to surmise for himself the date on which the appeal period commenced. The date entered on the decision record was plainly wrong. The applicant says he assumed the appeal period commenced on 10 December 2024.
5. Mr Singh said he recalled approaching the Court to file his application for review on 13 January 2025. He said he thought he was still within the appeal period. I note information supplied by the Court's registry confirmed the applicant attempted to lodge his application through the online portal on 13 January 2025. The applicant was able to refer to emails from the Court dated 16 January 2025 at the hearing which confirmed he was told his application had been lodged out of time, and that he would need to make a request for an extension of time. He said it took him some time after receiving those emails to work out what to do.
6. If the appeal period commenced on 5 December 2024, the 35 days concluded on 9 January 2025. Several public holidays fell within the appeal period although the period continued to run. That means the applicant's first attempt at filing an application for review was only 4 days late if the appeal period commenced on 5 December 2024.
7. It follows I am satisfied the applicant filed his application just outside the appeal period. He has offered a reasonable explanation for most if not all of that delay: his confusion over the date on which the appeal period commenced was understandable in circumstances where the Tribunal misstated the date of the decision and took its time over the notification process. This consideration weighs in favour of the exercise of the discretion.

Whether the respondent or any other party will experience prejudice if the extension of time is granted

1. The first respondent does not contend it will experience any prejudice if an extension of time were granted. There is no reason to believe anyone else will experience prejudice if I extend time.
2. While there is a public interest in making sure time limits are observed in cases like this, that assumes the time limits are properly and accurately explained. This consideration does not count against the applicant.

1. There is no point allowing a case to proceed if it appears the applicant has limited prospects of success. When assessing merit in an extension of time application, the Court must be conscious the case is still at an early stage. The case might evolve or improve with the benefit of proper preparation.
2. The applicant proposed three grounds of review. Mr Singh said he drafted the grounds with the assistance of relatives who have supported him during his stay in Australia. Before we commenced our discussion of the grounds, I explained the role of the Court. I pointed out the Court did not have the power to order that he be given a visa. I told him my role was limited to determining whether the Tribunal's decision was affected by jurisdictional error. I described examples of jurisdictional error like those referred to in the High Court's decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [3] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. These included denials of procedural fairness, a failure to consider relevant materials or arguments, and unreasonableness. I reminded him in the discussion which followed that it was important to concentrate on legal errors in the Tribunal's decision rather than simply expressing disagreement with the outcome.
3. The grounds in the application for review contend:
   • the applicant was denied procedural fairness because the Tribunal failed to consider relevant arguments and material including evidence about the applicant's progress in rehabilitation;
   • the Tribunal failed to exercise its jurisdiction and consider whether the delegate's decision was disproportionate given the progress the applicant had made in rehabilitating himself; and
   • the Tribunal failed to give proper consideration to relevant factors, including the applicant's largely successful attempts at rehabilitation, the threats to his ongoing rehabilitation if he were forced to return to India, and the hardship that will be experienced by his family in Australia and India.
4. It will be apparent the first and third grounds of review overlap. There is no substance to those criticisms. The applicant was invited to make submissions to the Tribunal and he was thereafter invited to attend a hearing where he had an opportunity to present material and make arguments. He took advantage of that opportunity. While he contended before me that he was not asked questions about hardship he might experience, the Tribunal records discussing those matters at [26]-[28] of the reasons.
5. The Tribunal complied with its procedural fairness requirements. Even a cursory review of the Tribunal's statement of reasons confirms it considered evidence regarding the applicant's mostly successful attempts at rehabilitation and his participation in various treatment programs: at [21]-[22], [25]; cf [39]. The Tribunal discusses the applicant's plans for the future that might be disrupted (at [24], [33]) and the hardship that he might experience (at [26]-[28] and [30], [35]-[38]) if his visa were cancelled. The Tribunal then concluded:

44. In summary, and weighing discretionary factors, the fact of an overwhelming number of convictions are very significantly adverse to the applicant. This is in the context of the applicant having to take a not insubstantial degree of responsibility for his drug use and criminal actions. This adverse discretionary factor is compounded by the applicant's ongoing risk to the community of committing further offences if he should reuse drugs which the Tribunal thinks is a possibility that is more than remote notwithstanding good progress in his rehabilitation since March 2024.

45. The Tribunal balances these adverse discretionary factors against the not insignificant hardships that will be caused to the applicant as a result of not being able to remain in Australia. The Tribunal accepts hardship to the applicant not being able to progress with desired studies and the disruption and possible ending of his relationship with his girlfriend. The Tribunal also accepts difficulties for the applicant's mother should the applicant relapse in his drug use on return to India.

46. The Tribunal determines that matters adverse to the applicant are not outweighed by the discretionary factors in his favour.

47. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

1. Given that discussion, it seems clear the Tribunal cannot be criticised for denying procedural fairness since the applicant had the opportunity to raise the relevant arguments and material. The Tribunal cannot be accused of failing to engage with that material when it sets out in the reasons for decision its thinking process directed to those very matters.
2. The second ground of review refers to proportionality. I take it the applicant contends the decision was unreasonable because:
   • the Tribunal did not identify a proper basis for its decision; or
   • no reasonable decision-maker could have reached that decision.
3. I have already referred briefly to the Tribunal's discussion of various matters in its statement of reasons. The Tribunal made findings of fact which were open to it, and those findings of fact appear to provide a rational basis for the decision that was ultimately made. The applicant disagreed with the way in which the Tribunal weighed those various matters, but that is properly a matter for the Tribunal.
4. I am also satisfied it would be impossible to say no reasonable decision-maker could have made the decision which the Tribunal reached. Even if another decision-maker might have taken a more benign view of the applicant's history and prospects, the Tribunal's assessment in this case is not so singular or surprising that one could conclude the Tribunal was acting unreasonably.

1. The absence of merit is decisive. There is no point allowing the applicant to proceed with this case when there is limited likelihood of him succeeding at a final hearing. He would simply experience further delay, uncertainty and expense. While I have sympathy for him because there was confusion over the appeal deadline, I am not satisfied it is necessary in the interests of the administration of justice to extend time for filing the application for review. That means Mr Singh is unsuccessful.
2. I discussed the question of costs with the parties at the end of the hearing. An award of costs will often be made against an unsuccessful party but that is not inevitably the case. The applicant in these proceedings says he is impecunious. He told me he was not working and could not afford to meet any costs order. I have sympathy for his predicament but an inability to pay is not of itself a reason not to make a costs order. He did not make any other submissions on the question. Ms Pieri, who appeared for the minister, asked that costs be awarded in favour of the minister in the fixed amount of $4,553.02. That is the amount indicated on the Court's scale which was updated on 1 September 2025. Prior to 1 September 2025, the amount indicated on the scale was $4,189.38. Almost all the work on this case was completed before 1 September 2025. Ms Pieri said the minister's actual costs exceeded the amount indicated on the current scale.
3. I am satisfied it is appropriate to make an order for costs in favour of the minister but those costs should be calculated with reference to the scale applicable when most of the work was done. The minister is entitled to costs in the fixed amount of $4,189.38.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.