Ali v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 886
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
File number: MLG 2771 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 27 October 2022 Catchwords: MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – no adequate explanation for delay – no prejudice to respondents – no realistic prospect of success when merits assessed at reasonably impressionistic level – extension of time refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 143, 254, 256, 486C, cl 187.233
Migration Act 1958 (Cth), ss 359A, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 2.05, 13.13, 21.01, 21.03, 21.02, 21.04
Cases cited: Da Costa Gomes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2026
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 27 September 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Griffiths-Mark Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2771 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ALI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
27 October 2022
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 4 August 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
The application before the Court is an application filed under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) for review of a decision made by a Registrar of the Court. On 4 August 2022 a Registrar summarily dismissed a judicial review application filed by the applicant on 28 October 2021[1] in respect of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister not to grant the applicant a Regional Employer Nomination (subclass 187) visa (visa).
[1] The application was electronically lodged after 4:30pm on 27 October 2021 and is deemed to have been filed on 28 October 2021, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The application for review of the Registrar’s decision was made outside of the time frame prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The applicant therefore requires an extension of time and has sought one in his application.
For the reasons below, I do not grant the applicant an extension of time to review the Registrar’s decision.
Background
The applicant is a non-citizen who applied for the visa on 17 October 2017. The applicant’s sponsor, West Fuel Pty Ltd (West Fuel), made a related nomination application.
On 22 February 2019 a delegate of the Minister made a decision to refuse West Fuel’s nomination application. By a letter dated 22 February 2019, the applicant was invited to comment on the refusal of West Fuel’s nomination, but did not provide any comment within the specified time period.
On 15 March 2019 West Fuel applied to the Tribunal for review of the delegate’s decision to refuse its nomination application.
On 25 March 2019 a delegate of the Minister made a decision not to grant the applicant the visa because the applicant was not the subject of an approved nomination, as required by cl 187.233(3) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant then applied to the Tribunal for review of the delegate’s decision on 9 April 2019.
On 16 November 2020 the Tribunal affirmed the delegate’s decision not to approve West Fuel’s nomination application.
By notice sent on 31 August 2021, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on 21 September 2021.
On 2 September 2021 the Tribunal sent to the applicant a notice under s 359A of the Migration Act 1958 (Cth) (Migration Act) inviting the applicant to comment, by 16 September 2021, on information which would be the reason, or part of the reason for affirming the delegate’s decision not to grant the applicant the visa. The notice provided in part:
The particulars of the information are:
•On 15 March 2019, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of WEST FUEL PTY LTD. On 16 November 2020, the Tribunal found that it had no jurisdiction to review the Department’s decision to refuse the nomination. Consequently, the decision made by the Department of Home Affairs on 22 February 2019, to refuse the nomination, stands.
This information is relevant to the review because in deciding whether you satisfy the requirements of clause 187.223(2) of Schedule 2 of the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred to in paragraph 187.223(1)).
If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which you are the nominee for the purpose of cl. 187.223. This may lead the Tribunal to find that that criterion is not met. This is an impediment to the visa being granted by the Department of Home Affairs for you.
On 14 September 2021 the applicant advised the Tribunal that his employer was not reachable and requested ‘some more time to organise the documentation’. The Tribunal granted the applicant an extension of time to respond to the s 359A notice, with the new response date being 21 September 2021, the same day that the hearing was listed.
The applicant did not provide any further information to the Tribunal and did not appear at the hearing.
On 29 September 2021 the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal found that the nomination made by the applicant’s proposed employer, West Fuel, had not been approved and therefore the applicant did not meet cl 187.233.
On 28 October 2021 the applicant filed an application under s 476 of the Migration Act seeking judicial review of the Tribunal decision. The applicant raised the following two grounds of application, reproduced without alteration:
1.I am not satisfied with the decision of department of home affairs and i want to challenge it.
2.Department of home affairs made the decision of nomination without any correspondence even my employer have all the documents ready.
Orders were made on 23 May 2022 to progress this matter to a summary dismissal hearing. Those orders required that the applicant file and serve any amended application, additional evidence and written submissions 28 days before the summary dismissal hearing. The applicant did not file any documents pursuant to the Court’s orders. The Minister filed submissions in accordance with the Court’s orders.
On 4 August 2022 a Registrar made a decision to summarily dismiss the applicant’s judicial review application pursuant to r 13.13(a) of the GFL Rules, on the basis that the applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of the FCFCOA Act: see also item 58 in r 21.01 of the GFL Rules.
On 9 September 2022 the applicant filed, pursuant to s 256 of the FCFCOA Act, an application for review of the Registrar’s decision.
Legislation and principles relevant to applications for review
Section 256(1) of the FCFCOA Act allows a party to a proceeding in which a delegate has exercised the powers of the Court under s 254 to apply to the Court for review of the exercise of that power. The application for review must be made within the time prescribed under the GFL Rules or within any further time allowed in accordance with the GFL Rules. The time limit prescribed by r 21.02(1) of the GFL Rules is seven days. Rule 21.02(2)(a) allows the Court to extend this time frame on any terms it thinks fit.
A review of the exercise of a power by a Registrar proceeds by way of a hearing de novo, with the Court able to receive as evidence any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: see r 21.04 of the GFL Rules.
Applicant’s requests for adjournments
Rule 21.03(2) of the GFL Rules requires that an application for review be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing. For reasons explained below, I formed the view that it was impractical to hold the hearing within 14 days while affording procedural fairness to the applicant in the particular circumstances of this case.
The application for review first came before me for hearing on 21 September 2022, which is within 14 days of filing. The applicant emailed my chambers ahead of that hearing requesting an adjournment on the basis of his poor health. The medical evidence originally provided by the applicant to support that request simply indicated that the applicant was suffering from a particular medical condition and would be unfit for ‘his regular activities’ from 17 September 2022 to 1 October 2022. The applicant was advised by my associates that this evidence did not indicate that he would be unable to attend a hearing of up to one hour.
At the commencement of the hearing on 21 September 2022 the applicant provided a further email to the Court attaching a letter from his psychologist. That letter suggested that the applicant would be unable to sustain a long meeting that requires focus and concentration and was afraid of not being able to give the right answers due to his state of mind after a sleepless night. The letter indicated that the applicant would like to postpone the hearing as he was not in a mental state to sustain a long hearing.
It was unclear from this letter what was meant by ‘long meeting’ or ‘long hearing’ and whether this meant that the applicant would be unable to participate in a hearing of up to one hour. The Court therefore arranged, with the parties’ consent, for the applicant’s psychologist to be contacted by phone to give evidence. The applicant’s psychologist confirmed that the applicant would be unable to participate in a hearing of up to one hour on that day, due to a medical condition, and indicated that she would be assisting him with certain techniques at an appointment the following Monday and he should be able to participate in a hearing of up to one hour after that.
In these circumstances, I formed the view that it was not practicable to proceed with the hearing within 14 days of the date of filing and adjourned the hearing to 27 September 2022, after the applicant’s next appointment with his psychologist.
On 27 September 2022 the applicant again wrote to my chambers to request an adjournment of the hearing. He provided another letter from his psychologist dated 21 September 2022 and a prescription for medication. The letter dated 21 September 2022 did not address the applicant’s fitness to participate in a hearing on 27 September 2022. In circumstances where no medical evidence was provided to support the applicant’s assertion in his email that he still did not consider himself to be able to attend the hearing with full concentration and attention and his request for ‘ample time to recover from the current traumas’, he was advised that the hearing remained listed on 27 September 2022.
The applicant’s request for an adjournment was also addressed at the hearing and I explained to the applicant that the medical evidence did not show that he was unable to participate in a hearing on that day. The hearing proceeded, with the Court allowing two short adjournments during the hearing to allow the applicant to have breaks. The applicant was worried that he might say a wrong word during the Court hearing. I remained mindful throughout the hearing that the applicant had concerns about fatigue and concentration and I have taken that into account.
I also gave the applicant an opportunity after the hearing to file any further affidavit or written submissions in relation to the application for review of the Registrar’s decision by 11 October 2022, and I gave the Minister leave to file any affidavit or submissions in response by 18 October 2022.
The applicant emailed my chambers on the evening of 10 October 2022 and attached a bundle of medical documents, and requested that his case be held for a minimum of three to four months so that he could improve his physical and mental health so that he could better focus on his Court proceedings. The applicant was advised that the Court did not agree to adjourn this proceeding for three to four months on the basis of the medical evidence provided, and that he was not required to file further documents if he did not wish to, but any documents that he wished the Court to consider needed to be filed rather than being emailed to chambers. The applicant did not file any further affidavit or submissions, and the Minister therefore did not file any responsive affidavit or submissions.
Extension of time application
Relevant considerations
The principles that apply to whether the Court should grant an extension of time are well-established: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments). In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the underlying application.
Length of the delay
In the present case, the Registrar’s decision was made on 4 August 2022 and the seven day prescribed time frame to seek review of that decision ended on 11 August 2022. The application for review was filed on 9 September 2022, over four weeks out of time. A delay of four weeks may not be excessive, but it is not insignificant in the context of a prescribed time frame of only seven days.
Explanation for the delay
The applicant filed an affidavit with his application for review in which he deposed:
1.Administrative appeals tribunal did not give me chance to provide the evidence against the unreasonably refusal of the nomination application.
2.immigration refused the application without giving me chance to provide further evidence to support my application.
3. I want to request for an extension of time.
The applicant has not provided any evidence to explain why his application for review was not filed within seven days of the Registrar’s decision. In his oral submissions to the Court, he submitted that he did not know that he needed to file his application for review by 11 August 2022, his visa mentioned 28 days and that is also what people told him and so he followed that. He also submitted that he was trying to contact his employer. He said that he does not know how to handle Court proceedings, and cannot concentrate properly.
I do not consider that the applicant had provided an adequate explanation for a delay of over four weeks. I accept the Minister’s submissions that there is no evidence before the Court of any advice that the applicant received from other people about the time frames, and that it was a matter for the applicant to find out the relevant time frame and check that the information he received about that time frame was accurate. I also accept the Minister’s submission that, in relation to the applicant’s assertion that he wished to contact his employer, there is no evidence of any communications or attempted communications between the applicant and his employer and there was sufficient time for him to get any documents before the summary dismissal hearing. In any event, any new documents that go only to the merits of the Tribunal decision will not be relevant to any judicial review application. Any assertions by the applicant that he has difficulty concentrating do not explain a delay of over four weeks, and the medical evidence before the Court, provided in the context of the applicant’s request for the hearing to be adjourned, does not indicate that he was unable to file any application for review within the seven day time frame.
The lack of an adequate explanation for the delay weighs against the grant of an extension of time.
Prejudice
The Minister has not claimed any prejudice as a result of the delay and I do not consider that the Minister would face any prejudice as a result of the delay in filing the application for review. However, the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits: whether the applicant has a reasonably arguable case
I then turn to the merits of the underlying application. In the context of considering an extension of time to seek review of the Registrar’s decision, the underlying application is the application for review of the Registrar’s decision to summarily dismiss the applicant’s judicial review application. For the following reasons, the applicant does not have a reasonably arguable case to prevent summary dismissal of his judicial review application on a de novo review of the Registrar’s decision.
The Court has the power to summarily dismiss the application for judicial review if the applicant has no reasonable prospect of successfully prosecuting that application: see s 143(2)(b) of the FCFCOA Act and r 13.13(a) of the GFL Rules. This necessarily directs attention to the applicant’s judicial review application.
At a reasonably impressionistic level, the applicant’s judicial review application has no reasonable prospects of success.
First, the grounds set out in his application for judicial review assert error in the delegate’s decision, not the Tribunal decision. The delegate’s decision is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act because it was reviewable by the Tribunal under Part 5 of the Migration Act. The Court does not have jurisdiction in relation to primary decisions: see s 476(2)(a) of the Migration Act.
Second, to the extent that ground 1 might be viewed instead as an assertion of error in the Tribunal decision, there is no realistic prospect that the ground could succeed. The ground itself does not explain why the applicant is not satisfied with the decision or the basis on which he asserts the Tribunal erred. The applicant has, however, made some submissions to the Court which might shed light on this. These submissions include the following:
(a)At the hearing before me, the applicant submitted that he asked the Tribunal for more time. The employer was required to provide all documents and the applicant said that he needed more time to get the documents as many things were shut down at the time due to COVID-19.
(b)In his affidavit filed in support of his application for review, the applicant deposed that he was not given an opportunity to provide evidence against the refusal of the nomination application and in support of his own application.
(c)I do not have a transcript of the hearing of the Registrar before me, but I have had regard to the Registrar’s summary of the applicant’s submissions. The Registrar recorded at [3] of his reasons that ‘[t]he essence of the applicant’s case is that he worked for his employer and did everything required of him, provided all the documents that he was required to provide, and that it was not his fault that the nomination was refused’. The Registrar also recorded at [23] of his reasons that:
… The applicant accepted that the nomination had not been approved and that the nominator had not sought judicial review of the Tribunal’s decision in respect of the nomination. He explained that he had worked for the nominator, who had been happy to sponsor him, and that the refusal of the nomination came as a shock. The applicant said that the nominator had initially been willing to support him at the Tribunal but was not open about what material would be provided in that review. Ultimately, the business closed down due to the COVID-19 pandemic and it seems the applicant lost contact with the nominator.
None of these submissions provide any basis to find that the applicant has any reasonable prospect of succeeding on ground 1.
(a)No jurisdictional error is evident from the applicant’s assertions that he asked the Tribunal for more time. As set out at [11] and [12] above, the applicant did make a request to the Tribunal for more time to get documents from his employer. This was in the context of responding to the s 359A notice. The applicant did not indicate in his request how much further time he needed. The Tribunal granted the applicant an extension of time of one week. The applicant did not provide any response within that time and did not seek any further adjournment. The applicant has not explained in any way how the Tribunal’s grant of his request for an extension of time gives rise to jurisdictional error.
(b)The applicant was invited to provide information to the Tribunal both in response to the s 359A notice and in the invitation to attend a hearing. There is no basis to his assertion that he was not given an opportunity to provide evidence in support of his own application. To the extent that the applicant’s submissions might be interpreted as an assertion that he should have been invited to comment on, or be heard in relation to, the Tribunal’s review of the nomination refusal decision, the ground has no reasonable prospect of success because the applicant was not a party to that proceeding. He had no entitlement to give evidence or make submissions in relation to the Tribunal’s jurisdiction to conduct the review of the employer nomination refusal.
(c)The submissions that the applicant advanced before the Registrar, as reflected in the summary in the Registrar’s reasons, do not allege any jurisdictional error in the Tribunal decision and address only the merits. The Court does not have any jurisdiction to decide for itself whether the applicant meets the criteria for a visa or otherwise review the factual merits of the Tribunal decision: see, for example, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Third, even if the applicant’s second ground in his application was treated as an allegation of error in the Tribunal decision, the assertion of error relates to the nomination refusal decision. The applicant was not a party to that decision and has no standing to challenge that decision in this Court: see s 486C(2)(a) of the Migration Act; Da Costa Gomes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2026 at [56].
Fourth, there is otherwise no reasonably arguable basis for finding jurisdictional error in the Tribunal decision. I accept the Minister’s submission that the Tribunal made the only decision that was open to it on the evidence. On the evidence before the Tribunal, the applicant was not the subject of an approved nomination. In these circumstances he could not satisfy the mandatory criterion in cl 187.223(3) and was therefore not eligible for the grant of the visa.
Balance of extension of time factors
Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicant to seek review of the Registrar’s decision. The applicant has failed to offer an adequate explanation for a delay that is not insignificant in length, and at a reasonably impressionistic level, on a de novo review of the Registrar’s summary dismissal decision, there is no realistic prospect of the Court finding that the applicant has any reasonable prospects of success in his judicial review application.
Conclusion
I therefore refuse the application for an extension of time for the applicant to seek review of the Registrar’s decision.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 October 2022
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