FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1453

JAGDISH KAUR AND SATWANT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 597 of 2003

LANDER J

ADELAIDE

19 NOVEMBER 2003

THE COURT ORDERS THAT:

1.         The application for an extension of time and for leave to appeal against the decision of Finn J is dismissed.

2.         The applicant to pay the respondent's costs fixed at $2500. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time and for leave to appeal from a decision of Finn J, given on 9 July 2003 by an applicant and her husband.  The application was made on 4 August 2003.  The trial judge dismissed the applicants’ originating proceedings which were originally brought in the High Court on 1 August 2002.  Those proceedings sought judicial review of a decision of the Migration Review Tribunal made on 24 May 1999, which was more than three years before the originating proceedings were commenced.

2                     The reason the trial judge dismissed the originating proceedings was that the applicant had failed to comply with orders of this court.  The application for leave to appeal is four days out of time.  The reason for the delay in making the application is said to be the fault of the applicants’ solicitor in failing to advise the applicants in a timely fashion of the orders made by Finn J. 

3                     The delay is not lengthy and the explanation could be accepted and an extension of time granted if this were an appropriate case to give leave. 

4                     The applicant entered Australia on 18 June 1990 with her husband.  They both entered but their entry permits expired on 18 December 1990.  Notwithstanding their entry permits expired in December 1990, they have both been permitted to work in the country. 

5                     The provisions of the Act and Regulations meant that the applicant and her husband were illegal entrants prior to 1 September 1994.  The Regulations provided that they would be entitled to a visa if they applied within 12 months after the day on which they last entered Australia unlawfully, which meant that any application had to be made within 12 months of 18 December 1990.  No application for a substantive visa was made until 20 January 1998, which meant that their application was necessarily about seven years late.

6                     Because the application was late they were ineligible for the grant of a Change in Circumstances Resident visa.  The Migration Review Tribunal was bound to reach the decision which it did and in the circumstances the tribunal had no discretion to allow the review to it.  There are no prospects that the applicant and her husband could succeed on any appeal to the Full Court of this court because the decision of the Migration Review Tribunal was plainly right.  The application for an extension of time and for leave to appeal from Finn J's decision is refused. 

7                     I will make the following orders:

1.         The application for an extension of time and for leave to appeal against the decision of Finn J is dismissed.

2.           The applicant to pay the respondent's costs fixed at $2500. 

Associate:

Dated:              10 December 2003