FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 331

THE COURT ORDERS THAT:

1.    The application for extension of time be rejected.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to apply for leave to appeal from an interlocutory judgment of the Federal Circuit Court of Australia delivered on 17 November 2014. There are three general categories of consideration that should be taken into account on an application such as the present: first, whether the applicant has provided a satisfactory explanation for his or her failure to lodge an application for leave to appeal within time, secondly, whether the intending applicant for leave to appeal would have a case with reasonable prospects of success, and thirdly, whether prejudice would be occasioned to the intending respondents, or any other relevant person, by the granting of the application.

2    In this case, the application for an extension of time was made about five days after the expiry of the 14-day period for which the rules of Court provide for the making of an application of the kind proposed. The applicant has said that he was advised by an officer in the registry of the Court that he had 21 days to make his application. If such advice was given to the applicant, it was unfortunate, in the sense that the 21-day period for which the rules provide is applicable to an appeal, but not to an application for leave to appeal. However, I am prepared to proceed on the basis that the applicant has a satisfactory explanation for his failure to apply for leave to appeal within the prescribed period.

3    Turning to the question whether the proposed application for leave would have any prospects of success, the issue would be twofold, namely, first, whether the decision of the Federal Circuit Court of 17 November 2014 is attended by sufficient doubt to justify appellate review, and, if so, whether substantial injustice would be occasioned by the Court’s refusal to grant leave to appeal.

4    The judge in the Federal Circuit Court appeared to treat this as a very straightforward case. His Honour acted pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), in giving summary judgment for the respondent Minister upon the ground that the application before him did not raise an arguable case for the relief which the applicant claimed. His Honour rehearsed in detail the factual circumstances which brought the applicant to the Federal Circuit Court and, for reasons which will be apparent in a moment, I do not need to revisit those matters.

5    Of the three grounds which the applicant advanced in the Federal Circuit Court, the first two were characterised by his Honour as going no further than restating facts, and as failing to identify a jurisdictional error of the kind which would sustain the applicant’s cause of action in his challenge to the decision of the Migration Review Tribunal. The third ground was that the Tribunal and the Department of Immigration had not looked at the applicant’s situation. The primary judge accepted the submission of the Minister that that ground lacked sufficient particularity to make it meaningful, an outcome which the applicant did not seek to challenge on the present occasion.

6    In this Court, the applicant’s grounds articulated in his proposed appeal are little short of meaningless, in that they refer to provisions of the Migration Act 1958 (Cth) quite separate from any under which his own circumstances arose. The applicant did not make any submission to me today in support of his application.

7    I am satisfied that the judgment of the Federal Circuit Court was the correct one to make in the circumstances, and that if time were extended, as sought by the applicant, the only conceivable outcome of an application for leave to appeal would be the conclusion that the judgment below was not attended by doubt sufficient to justify appellate review. That is to say, the granting of the extension of time would be a futile exercise. I see no point in subjecting the respondents to the prospect of further proceedings in this Court.

8    Under the circumstances, I do not need to consider whether the respondents would be prejudicially affected by the extension of time which the applicant seeks.

9    I propose to dismiss the application for an extension of time for the reasons which I have given.

Associate:

Dated:    23 April 2015