FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Citizenship [2013] FCA 57

THE COURT ORDERS THAT:

1.    The first respondent be named as “Minister for Immigration and Citizenship”.

2.    The application filed 22 November 2012 by Mr Jagpreet Singh be dismissed.

3.    Mr Singh to pay the First Respondent’s costs, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.

Application for extension of time

7    On 22 November 2012 Mr Singh filed, in this Court, an application for an extension of time in which to file an appeal from the decision of the Federal Magistrate. A draft notice of appeal from the Federal Magistrates Court was attached to the application. A supporting affidavit was also filed on 22 November 2012.

8    Mr Singh is self-represented in this proceeding. The Court notes the difficulty experienced by self-represented litigants in such matters, particularly where their first language is not English. This difficulty is exemplified by Mr Singh’s filed documentation. In particular, I note that:

    The only draft ground of appeal is “Not satisfied with the decision made on my application for MRT”.

    The supporting affidavit, wherein an applicant for an extension of time is required to state (inter alia) the facts on which the application relies and the reason why the appeal was not filed within time, contains only (so far as relevant):

o    a letter from the lawyer for the Minister to Mr Singh dated 19 October 2012 referring to the orders of the Federal Magistrate and seeking costs; and

o    his Honour’s orders of 15 October 2012.

9    In Court yesterday, Mr Singh explained, in summary, that his migration agent had failed to apply to the Tribunal in time for review of the decision of the delegate, and that it was for this reason that his application to the Tribunal was late. In relation to the lateness of his application to lodge an appeal against the decision of the Federal Magistrate, Mr Singh explained that he had applied directly to the Department for a new visa in the hope of avoiding the expense of an appeal to the Federal Court, and had only sought to appeal once the Department had refused that application.

10    Mr Singh also submitted that he had incurred considerable expenses in relation to his studies, which would be wasted if he could not obtain a student visa to complete those studies.

Consideration

11    In my view the objection to the competency of Mr Singh’s application for an extension of time filed on 22 November 2012 should be upheld, and Mr Singh’s application for an extension of time in which to file a notice of appeal from the decision of the Federal Magistrate ought be dismissed.

12    Pivotal to consideration of this issue is s 476A of the Act. This section provides as follows:

Limited jurisdiction of the Federal Court

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a) the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act 1999; or

(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

Note: Only non-privative clause decisions can be taken to the Federal Court under subsection 44(3) of the Administrative Appeals Tribunal Act 1975 (see section 483).

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or

(b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

(4) Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

(5) In this section:

judgment has the same meaning as in the Federal Court of Australia Act 1976.

13    In particular, I note s 476A(3)(a) which provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to this Court from a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under s 477(2) of the Act. The operation of this section of the Act is unambiguous. The terms of s 476A(3)(a) were noted and accepted as unambiguous in BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30]; SZQYP v Hannigan [2012] FCA 723 at [9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7].

14    In this case the orders of the Federal Magistrate related specifically to the application for an extension of time. The orders were clearly made under s 477(2) of the Act. It is clear that this Court has no jurisdiction to entertain an appeal from those orders of the Federal Magistrate. It follows that, similarly, this Court has no jurisdiction to entertain an application for an extension of time to appeal from such orders.

Associate:

Dated:    6 February 2013