Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 373

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The applicant’s application for an extension of time within which to seek leave to appeal be refused.

3.    The applicant pay the first respondent’s costs of and incidental to his application.

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

REASONS FOR JUDGMENT

BEACH J:

1    This is an application for an extension of time in which to seek leave to appeal from a judgment of the then Federal Circuit Court of Australia which dismissed the applicant’s application seeking reinstatement of his application for an extension of time in which to seek judicial review.

2    In his application for an extension of time in which to seek judicial review, the applicant sought review of a decision of the Tribunal which had dismissed the applicant’s application for want of jurisdiction. The application was not filed within the 21 day timeframe stipulated in s 347(1)(b) of the Migration Act 1958 (Cth) and reg 4.10 of the Migration Regulations 1994 (Cth).

3    In my view the application for an extension of time should be refused. But if time to seek leave to appeal had been extended and had leave to appeal been granted, I would have dismissed the appeal in any event.

Background

4    On 30 August 2017, the applicant made an application for a Training (Class GF) (subclass 407) visa. The applicant authorised his migration agent to receive correspondence on his behalf in relation to that application.

5    On 24 November 2017, a delegate of the Minister refused to grant the visa on the basis that the applicant did not have an approved nomination under s 140GB of the Act and so did not meet the criteria prescribed in cl 407.214 of Sch 2 to the Regulations. The delegate notified the applicant of this decision by email to his authorised representative, as the delegate was entitled to do.

6    On 15 May 2018, the applicant applied to the Tribunal for a review of the delegate’s decision.

7    On 5 June 2018, the Tribunal dismissed the application for review for want of jurisdiction.

8    Now the application for review was required to be filed within 21 days after the day the applicant was notified of the delegate’s decision. But having regard to the evidence before it, the Tribunal found that the applicant was notified of the delegate’s decision on 24 November 2017.

9    Now the Tribunal considered the applicant’s submissions which asserted that he was unaware of the timeframe for applying to the Tribunal due to the negligence of his authorised representative, but found that it did not have any discretion to waive the statutory timeframe for the making of an application for review.

10    And as the applicant had lodged his application for review on 15 May 2018, the Tribunal found that it did not have jurisdiction to review the delegate’s decision.

11    On 3 August 2018, the applicant lodged an application for an extension of time to seek judicial review of the Tribunal’s decision with the Court below. Again, he had lodged the relevant application out of time.

12    On 5 February 2020, the applicant failed to attend a directions hearing listed in the matter. A Registrar of the Court below then summarily dismissed the application under r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth).

13    On 19 February 2020, the applicant filed an application seeking reinstatement of his application under r 16.05(2)(a) of those Rules. That application was accompanied by an affidavit from the applicant, in which he stated that he had advised the Court after the directions hearing (but on the same day) that he “missed” the direction hearing and that he was unwell “since the first week of February and [his] condition got worse with severe migraines and fever”, which resulted in his “unintentionally los[ing] track” of the directions hearing.

14    On 3 July 2020, the primary judge dismissed the reinstatement application.

15    The primary judge observed that the central issues before him were whether the applicant had provided a satisfactory explanation for his non-attendance at the directions hearing that resulted in his application being dismissed and whether his extension of time application had raised an arguable case for the relief claimed.

16    In relation to the applicant’s non-attendance at the directions hearing, the primary judge found that the applicant had not provided a sufficient or reasonable excuse for his absence, as he had failed to provide any explanation as to why his medical condition prevented him from notifying the Court of his proposed absence prior to the directions hearing or attending the directions hearing, as the circumstances of his condition were not apparent from the medical evidence that he had provided in support of reinstatement.

17    Further, in relation to the merits of the extension of time application, the primary judge observed that the application had no reasonable prospects of success. First, the Tribunal had considered the applicant’s submissions and his circumstances, but noted that it had no flexibility in the interpretation and application of the statutory timeframe for the lodgement of applications for merits review. Second, the applicant had not provided any material that suggested that the Tribunal’s decision was wrong in law. Third, the applicant had not provided a sufficient explanation as to the delay in seeking judicial review of the Tribunal’s decision.

18    On 24 July 2020, the applicant filed in this Court an application for an extension of time and leave to appeal from the primary judge’s decision. Again, the applicant had not complied with the relevant time frame. The matter was allocated to my docket on 28 April 2022. The matter was then listed for hearing on 22 September 2022 but this date had to be vacated due to the passing of Her Majesty Queen Elizabeth II. That day was declared to be a day of mourning and also a public holiday in Victoria.

Application for an extension of time to seek leave to appeal

19    Leave to appeal is required given that the decision below was an interlocutory judgment. A judgment dismissing an application to set aside an order made in the absence of a party is interlocutory.

20    Further, as the present application was not made within 14 days after the date on which the decision below was pronounced, the applicant also requires an extension of time in which to seek leave to appeal; see r 35.13(a) of the Federal Court Rules 2011 (Cth).

21    In Li v Minister for Immigration and Border Protection [2018] FCA 730, Moshinsky J succinctly summarised in the following terms (at [13]) the relevant factors to be taken into account when considering an application for an extension of time and the relevant test to apply for leave to appeal:

…In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.

22    His Honour’s statement is sufficient for present purposes.

23    Now the grounds for an extension of time for leave to appeal raise three matters. First, it is said that the applicant understood that he had 28 days to lodge an appeal, having regard to information on the then Federal Circuit Court’s website. Second, it is said that r 36.03 of the Federal Court Rules provides that the applicant has 28 days in which to lodge an appeal. Third, it is said that the applicant had received legal advice from “three separate lawyers” that “the appeal had to be made in 21 (sic) days…”.

24    Further, the draft notice of appeal raises 11 proposed grounds of appeal, in narrative format. Read at their highest, the grounds contend that the primary judge was biased, decided the matter based on personal opinion rather than on the basis of the medical evidence that the applicant had provided, erred in concluding that the applicant provided an inadequate explanation for his non-attendance at the directions hearing and insufficient medical evidence in support of his reinstatement application, erred in concluding that the Tribunal’s decision was not wrong in law, and erred in concluding that the applicant did not provide a sufficient explanation for his delay in lodging an application for judicial review.

25    Now the Minister would suffer no prejudice in the grant of an extension of time that could not be remedied by an order for costs. But the absence of prejudice is insufficient to justify the grant of an extension of time.

26    Now the application for leave to appeal is seven days out of time, and this delay is not substantial. Moreover, let it be assumed in favour of the applicant that he has provided an adequate explanation for this delay.

27    In my view the proposed appeal has no reasonable prospects of success. It is well-established that the Court should not exercise its discretion to extend the time period in which to make an application for leave to appeal where the proposed appeal has no reasonable prospects of success.

28    In this regard, the applicant’s proposed grounds of appeal are without merit.

29    First, the applicant has not provided any particulars of his allegation that the primary judge was biased and does not point to any evidentiary matters seeking to prove his allegation.

30    Second, the applicant has not identified any appellable error in the primary judgment. A majority of the grounds of appeal merely disagree with the primary judgment and are otherwise recitations of the applicant’s grievances against his former authorised representative. But the grounds do not contain any contentions of substance as to how the primary judge erred in not reinstating his extension of time application.

31    Third, the applicant’s disagreement with the primary judge’s reasons for not reinstating the application is misconceived. It was open to the primary judge to conclude that the applicant had not provided an adequate explanation for his non-appearance at the directions hearing. Neither the applicant’s explanation of his suffering a migraine nor the medical evidence provided anything of substance that could enlighten the primary judge as to the effect of his condition and why he was unable to advise the Court below of his non-attendance prior to the directions hearing or attend the directions hearing.

32    Fourth, it was well open to the primary judge to conclude that the proposed judicial review application lacked reasonable prospects of success. The applicant was properly notified of the delegate’s decision on 24 November 2017 and the applicant failed to lodge an application with the Tribunal within time; see s 347(1)(b) and reg 4.10. The application was therefore invalid and the Tribunal had no residual discretion to extend time; see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [31] per Heerey J, [44] per Finkelstein J and [55] per Dowsett J and Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [83].

33    Accordingly, the applicant’s arguments that the Tribunal should have accepted his application for review and considered his circumstances were without merit.

34    The decision of the Tribunal was one relating to jurisdiction. And in the circumstances where there was a valid notification of the delegate’s decision and where the applicant had not lodged his application for review within the statutory timeframe, the Tribunal was correct in finding that it had no jurisdiction to review the application. Further, it could not extend time to create jurisdiction.

35    There was a valid notification of the delegate’s decision under s 66. The notification letter relevantly stated that the applicant could make an application for review with the Tribunal within 21 days after the date of notification under the respective headings “Review rights” and “Lodging an application for merits review”. The form of the letter is in relevant respects the same as that considered in Ali v Minister for Home Affairs [2019] FCA 1102, where Nicholas J found (at [26] to [30]) that the notification letter was not affected by error and did not contain errors of the type discussed by Perram J in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 at [58] to [62] and BMY18 v Minister for Home Affairs (2019) 271 FCR 517 at [28] to [37] and [41] to [43].

36    In my view, the primary judge was correct to refuse the re-instatement given that to do so would have been an exercise in futility.

37    Further, for me to grant an extension of time would also be an exercise in futility. I would be bound to refuse leave to appeal if I had granted the extension as the underlying proposed appeal would have no reasonable prospects of success.

38    The reality is that the Tribunal had no jurisdiction to deal with the underlying application to review the delegate’s decision. There was no such valid application lodged. Moreover, the Tribunal had no power to extend time. Now I understand that the applicant may have legitimate complaints against his agent. But that does not change this conclusion. Moreover, even if the Department knew of problems with his agent’s behaviour more generally at an earlier time, that does not surmount the jurisdiction problem concerning the Tribunal. Moreover, the fact that the delegate’s decision could also have been sent directly by the Department to the applicant rather than the agent is no answer. The Department was entitled to send the relevant notification to the agent.

Conclusion

39    In summary, the application for an extension of time within which to seek leave to appeal must be dismissed with costs.

Associate:

Dated:    24 April 2023