Singh v Minister for Immigration and Border Protection [2017] FCA 150

Singh v Minister for Immigration and Border Protection [2017] FCA 150

Although the 27-day delay was understandable and no specific prejudice to the Minister was shown, the proposed grounds did not establish error in the primary judge's finding that the inherent power to set aside the notice of discontinuance should not be exercised. There was nothing to indicate that the notice was procured by fraud or duress or filed without knowledge or consent. Further, no arguable case was shown that the applicant was enrolled in a registered course or that the Tribunal could have reached a different conclusion. The proposed appeal was not attended by sufficient doubt, substantial injustice would not result if leave were refused, and the appeal would be bound to fail.

Jurisdiction
Australia
Judgment Date
21 February 2017
Procedural Posture
Application for Extension of Time and Leave to Appeal / Federal Court Application From an Interlocutory Judgment of the Federal Circuit Court of Australia
Outcome
The application for an extension of time and leave to appeal was dismissed with costs.
Legal Topics
['student Visa Cancellation' 'condition 8202(2)(a)' 'extension of Time to Seek Leave to Appeal' 'notice of Discontinuance' 'reinstatement of Proceedings' 'judicial Review']
['administrative Law' 'migration Law'] ['student Visa Cancellation' 'condition 8202(2)(a)' 'extension of Time to Seek Leave to Appeal' 'notice of Discontinuance' 'reinstatement of Proceedings' 'judicial Review']

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Federal Court Application From an Interlocutory Judgment of the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether time should be extended to seek leave to appeal from the Federal Circuit Court's interlocutory judgment." 'Whether leave to appeal should be granted from the dismissal of the application to set aside a notice of discontinuance and reinstate judicial review proceedings.' "Whether the proposed grounds showed error in the primary judge's refusal to set aside the notice of discontinuance." "Whether there was an arguable case that the Tribunal erred in affirming cancellation of the applicant's visa for breach of condition 8202(2)(a)."]

Ratio Decidendi

Although the 27-day delay was understandable and no specific prejudice to the Minister was shown, the proposed grounds did not establish error in the primary judge's finding that the inherent power to set aside the notice of discontinuance should not be exercised. There was nothing to indicate that the notice was procured by fraud or duress or filed without knowledge or consent. Further, no arguable case was shown that the applicant was enrolled in a registered course or that the Tribunal could have reached a different conclusion. The proposed appeal was not attended by sufficient doubt, substantial injustice would not result if leave were refused, and the appeal would be bound to fail.

Court Disposition

The application for an extension of time and leave to appeal was dismissed with costs.

Orders

  • ['The application for an extension of time and leave to appeal is dismissed.' 'The applicant pay the costs of the first respondent to be assessed if not agreed.']