Batta v Minister for Immigration and Multicultural Affairs (No 3)

Case •

[2024] FedCFamC2G 1177

•

21 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Batta v Minister for Immigration and Multicultural Affairs (No 3) [2024] FedCFamC2G 1177

File number(s): MLG 844 of 2021
Judgment of: HER HONOUR JUDGE C. E. KIRTON KC
Date of judgment: 21 November 2024
Catchwords: MIGRATION – Application for review of a Registrar’s decision to summarily dismiss an Application and order that the Applicant pay the First Respondent’s costs – Substantive Application has no reasonable prospects of success – order for costs
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 256

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 13.13(a), 21.03(1), 21.04, Division 29.2 of Part 29, Schedule 2

Migration Act 1958 (Cth) ss 359, 360, 363A

Migration Regulations 1994 (Cth) cll 187.223, 187.233, 187.311
Cases cited:

AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44

AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368

Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886

Allison v Murphy [2021] FCAFC 232

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Batta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 832

Batta v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1176

DTQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 627

EAZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 631

Heenatigala & Anor v Minister for Immigration & Anor [2020] FCCA 1055

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 437

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

Shazad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

Spencer v The Commonwealth of Australia (2010) 241 CLR 118

Division: Division 2 General Federal Law
Number of paragraphs: 51
Date of last submissions: 7 November 2024
Date of hearing: 7 November 2024
Place: Melbourne
The First and Second Applicants: In person with the assistance of a Punjabi interpreter by telephone
Solicitor for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 844 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RAHUL BATTA

First Applicant

AMANJOT KAUR

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON KC

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The “Administrative Review Tribunal” be substituted as the Second Respondent in the proceedings.

2.The Application for judicial review filed by the Applicants on 11 September 2024 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

3.The Applicants pay the First Respondent’s costs fixed in the sum of $1,000.

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

HER HONOUR JUDGE C. E. KIRTON KC:

INTRODUCTION

  1. On 10 September 2024 the Applicants lodged an Application for Review, which was accepted for filing by the Court on 11 September 2024 (Review Application). The Review Application seeks review of an exercise of power by a Judicial Registrar of this Court, pursuant to Part 29, Division 29.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

  2. The relevant exercise of power by the Judicial Registrar were Orders made on 5 September 2024 (Registrar’s Orders). The Registrar’s Orders summarily dismissed the Applicants’ Application for judicial review, filed on 27 April 2021 (Substantive Application); and ordered that the Applicants pay the costs of the First Respondent (Minister) fixed in the sum of $4,189.38. The Substantive Application seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) on 23 March 2021 to refuse the Applicants’ application for Regional Employer (Nomination) (Permanent) (Class RN) visas (Tribunal Decision).

  3. The Registrar’s Orders were made pursuant to a request for an order for summary dismissal pursuant to r 13.13(a) of the Rules, made by the Minister in the Amended Response, filed on 23 August 2024 (Amended Response).

  4. The hearing of the Review Application took place at the Melbourne Registry of the Court on 7 November 2024 (Review Hearing). At the conclusion of the Review Hearing judgment was reserved. These are the Reasons for Judgment in relation to the Review Hearing.

    ISSUES IN DISPUTE

  5. The issues to be determined in this matter are whether:

    (a)The Substantive Application has reasonable prospects of success; and

    (b)Orders 2 and 3 of the Registrar’s Orders should be set aside.

    SYNOPSIS

  6. The Court has determined that:

    (a)The Review Application should be dismissed pursuant to r 13.13(a) of the Rules on the basis that the Substantive Application has no reasonable prospects of success;

    (b)The Registrar’s Orders remain in full force and effect; and

    (c)The Applicants pay the Minister’s costs of the Review Application, fixed in the sum of $1,000.

    BACKGROUND

  7. The Applicants are citizens of India. On 1 March 2018 the Applicants each applied to the Department of Home Affairs for a Regional Employer Nomination (Subclass 187) (Regional Sponsored Migration Scheme) (Visa).[1] The First Applicant applied for the Visa on the basis of his employment with Bling Food Pty Ltd (Sponsor), in the nominated position as Cook (Visa Application). The Second Applicant joined the Visa Application on the basis that she was a member of the same family unit as the First Applicant.

    [1] Court Book (CB) 1-17.

    Delegate’s Decision

  8. On 6 July 2019 a Delegate of the Minister (Delegate) advised the Applicants that the Sponsor’s nomination to the Department listing the First Applicant as its nominee had been refused (Delegate’s Sponsorship Decision). The Delegate invited the Applicants to comment on the Delegate’s Sponsorship Decision within 28 days; or to withdraw the Visa Application.[2]

    [2] CB 19-22.

  9. On 7 August 2019 the Applicants’ Migration Agent sent an email to the Delegate advising that the Sponsor had lodged an application for review of the Delegate’s Sponsorship Decision with the Tribunal.[3]

    [3] CB 23-24.

  10. On 26 September 2019 the Delegate refused the Visa Application on the basis that the First Applicant was not the subject of an approved nomination pursuant to cl 187.233(3) of the Migration Regulations 1994 (Cth) (Migration Regulations); and the Second Applicant was not a member of the family unit of a person who holds a subclass 187 visa pursuant to cl 187.311 of the Migration Regulations (Delegate’s Decision).

    Tribunal Decision

  11. On 17 October 2019 the Applicants applied to the Tribunal for review of the Delegate’s Decision.[4]

    [4] CB 34-35.

  12. On 5 February 2021 the Tribunal sent an email to the Applicants’ Migration Agent inviting the Applicants to comment on information that the Delegate’s Sponsorship Decision had been affirmed by the Tribunal on 1 February 2021 (Section 359A Letter). The Applicants were invited to respond to the Section 359A Letter by 19 February 2021.[5]

    [5] CB 40-43.

  13. On 21 February 2021 the Applicants’ Migration Agent sent an email to the Tribunal which forwarded a letter from the First Applicant (First Applicant’s Letter). In the First Applicant’s Letter the First Applicant acknowledged that he did not have an approved sponsor and did not meet the criteria for the grant of the Visa. The First Applicant requested that the Tribunal delay its decision for a period of three (3) months so that he could depart Australia and start a new career in India.[6]

    [6] CB 44-46.

  14. The Tribunal Decision on 23 March 2021:

    (a)Found that pursuant to ss 359C(2) and 360(3) of the Migration Act 1958 (Cth) (Migration Act) the Applicants had lost their entitlement to appear before the Tribunal, as the Applicants had not responded to the Section 359A Letter within the prescribed period being 19 February 2021; and that pursuant to s. 363A of the Migration Act the Tribunal was precluded from offering the Applicants a hearing: at [6] to [10];

    (b)Found that the Applicants did not provide evidence that the First Applicant had an approved nomination pursuant to cl 187.233 of the Migration Regulations. The First Applicant thereby did not meet the criteria set out in cl 187.311 of the Migration Regulations: at [14] to [24];

    (c)Found that by reason of the matters referred to in the preceding sub-paragraph, the Second Applicant did not meet the criteria as set out in cl 187.311 of the Migration Regulations: at [26]; and

    (d)Affirmed the Delegate’s Decision at [27].

    PROCEEDINGS BEFORE THE COURT

  15. The Substantive Application was filed by the Applicants on 27 April 2021 together with an Affidavit by the First Applicant annexing a copy of the Tribunal’s Decision (First Applicant’s 27 April 2021 Affidavit). The Applicants have been self-represented throughout the proceedings in this Court.

  16. The Substantive Application contains ten (10) grounds as follows:

    1.I lodged a subclass 187 visa application which has been refused by immigration department and by the AAT department (Ground 1).

    2.The reason provided by AAT is that I did not have an approved nomination for my subclass 187 visa application (Ground 2).

    3.I do not agree with their decisions and want to dispute the decision in the Federal Circuit Court (Ground 3).

    4.My concern is that the business was hardest hit by COVID 19 and could not survive. AAT failed to recognize that there were compelling circumstances (COVID 19) for the temporarily closure of the business. Hence, the subclass 187 nomination application in AAT was unsuccessful (Ground 4).

    5.Due to the negative decision on my employer’s subclass 187 nomination application, I too got a negative decision on my subclass 187 visa application (Ground 5).

    6.I tried to explain the circumstances to the AAT department, but I was not given a chance (Ground 6).

    7.I believe that I am the victim of unfair treatment by AAT department (Ground 7).

    8.I believe that a jurisdictional error has been made while deciding on my application and I was denied procedural fairness in my application (Ground 8).

    9.My employer also has lodged a judicial review application for the nomination refusal (File Number MLG404/2021) (Ground 9).

    10.I too, want to dispute the decision in Federal Circuit Court (Ground 10).

    (Words in bold added, otherwise as written)

  17. On 16 August 2024 the Registrar (as the Judicial Registrar then was) Ordered (16 August 2024 Orders) that:

    (a)The Minister file and serve on or before 23 August 2024 an amended response; written submissions in support of the summary dismissal application; and any further evidence on which the Minister intends to rely in support of the summary dismissal application;

    (b)The Applicants file and serve on or before 30 August 2024: an amended application for judicial review setting out properly particularised grounds; written submissions in opposition to the summary dismissal application; and any further evidence on which the Applicants intend to rely in opposing the summary dismissal application; and

    (c)The summary dismissal application be listed for hearing by Microsoft Teams on 4 September 2024.[7]

    [7] Orders Registrar Cummings, 16 August 2024, Orders 2 to 4.

  18. After the making of the 16 August 2024 Orders:

    (a)On 23 August 2024 the Minister filed the Amended Response and written submissions (Minister’s First Written Submissions). The Minister also filed an Affidavit of Tess Price, Lawyer, affirmed on 23 August 2024 (Price Affidavit); and

    (b)The Applicants did not file an amended application for judicial review, written submissions or any further evidence.

  19. On 4 September 2024 the hearing of the Minister’s application for summary dismissal took place via Microsoft Teams. The Applicants appeared with the assistance of a Punjabi interpreter. The Minister was represented by a Solicitor. Judgment on the Minister’s summary dismissal application was reserved to the following day. On 5 September 2024 the Judicial Registrar delivered judgment and reasons for decision in Batta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 832. The Judicial Registrar found that the Substantive Application had no reasonable prospects of success of establishing that the Tribunal Decision was affected by jurisdictional error.[8] It was Ordered (5 September 2024 Orders) that:

    (a)The name of the Minister be amended to ‘Minister for Immigration and Multicultural Affairs’;

    (b)The Substantive Application be summarily dismissed pursuant to r 13.13(a) of the Rules; and

    (c)The Applicants pay the Minister’s costs fixed in the sum of $4,189.38.

    [8] Batta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 2024, [16] and [18].

  20. On 11 September 2024 the Applicants filed the Review Application seeking review of each of the 5 September 2024 Orders. The Review Application sought Orders:

    (a)Quashing or setting aside the Tribunal Decision;

    (b)Remitting the matter to the Tribunal for further consideration; and

    (c)Costs.

  21. On 11 September 2024 the Applicants also filed an unwitnessed Affidavit of the First Applicant (First Applicant’s 11 September 2024 Affidavit) annexing a copy of the 5 September 2024 Orders.

  22. On 29 October 2024 Registrar Downing Ordered that:

    (a)The hearing of the Review Application be listed for hearing on 7 November 2024;

    (b)The Applicants file and serve any written submissions in relation to the Review Application by 31 October 2024; and

    (c)The Minister file any written submissions in relation to the Review Application by 4 November 2024.

  23. The Applicants did not file any written submissions in relation to the Review Application. The Minister filed written submissions in relation to the Review Application on 4 November 2024 (Minister’s Second Written Submissions). On 6 November 2024 the Minister filed a List of Authorities (List of Authorities).

  24. On 7 November 2024 the Review Hearing took place at the Melbourne Registry of the Court. The Applicants appeared with the assistance of a Punjabi interpreter. The Minister was represented by a Solicitor. At the commencement of the Review Hearing the Applicants made an oral application for an adjournment of the Review Hearing, which was opposed by the Minister. The adjournment application was refused and the ex tempore reasons are published in Batta v Minister for Immigration and Multicultural Affairs(No 2) [2024] FedCFamC2G 1176. At the conclusion of the Review Hearing Judgment was reserved.

  25. At the Review Hearing the Applicants relied on: the Substantive Application; the First Applicant’s 27 April 2021 Affidavit; the Review Application; and the First Applicant’s 11 September 2024 Affidavit.

  26. At the Review Hearing the Minister relied on the Court Book, filed on 16 November 2021; the Price Affidavit; the Minister’s First Written Submissions; the Affidavit of Service, filed on 2 September 2024; and the Minister’s Second Written Submissions.

    APPLICABLE LEGAL PRICIPLES

    Review Applications

  27. In accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), parties may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act.

  28. An application for review must be listed for hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing: r 21.03(1) of the Rules.

  29. In accordance with r 21.04(1) of the Rules, the hearing of an application for review of an exercise of power by a Registrar, is to proceed as a ‘hearing de novo’. The Court may receive evidence of any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04(2)(a) and (b) of the Rules; Allison v Murphy [2021] FCAFC 232 at [11]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19].

    Summary Dismissal

  30. The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if a party is defending the proceeding or any part of the proceeding; and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding: s 143(2) of the FCFCOA Act. A proceeding or part of a proceeding need not be hopeless or bound to fail: s 143(3) of the FCFCOA Act.

  31. Pursuant to r 13.13(a) of the Rules the Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.

  32. The onus is on the party seeking the summary dismissal to persuade the Court that the Applicant has no reasonable prospects of success: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 (AIZ22) at [37]; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 (Cassimatis) at [45].

  33. An application for summary dismissal in respect of a migration decision requires the Minister to establish that the applicant has no reasonable prospects of successfully establishing that the Tribunal’s decision is affected by jurisdictional error: AIZ22 at [36]-[37]; EAZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 631 (EAZ22) at [15]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22]; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]-[7]. The Court is not required to conclusively determine whether the Tribunal’s decision is affected by jurisdictional error. It is not necessary for the Court to be satisfied that the application is hopeless or is bound to fail: AIZ22 at [36].

  34. The Court is required to critically examine the available material to determine whether there is a real question of law or fact which should be decided at trial: AIZ22 at [36]-[37]; AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [16]; EAZ22 at [16]; DTQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 627 at [16]; Cassimatis at [46].

  35. The discretion to summarily dismiss an application must be exercised with caution, as it is an order made at a preliminary stage in proceedings and without the benefit of fully developed evidence and argument: AIZ22 at [37]; Spencer at [24] and [60].

    CONSIDERATION

  36. I now consider the prospects of success of the Substantive Application.

    Grounds 1, 2, 3, 5, 9 and 10

  1. Grounds 1, 2, 3, 5, 9 and 10 allege no jurisdictional error and are not proper grounds of review. These grounds simply set out the background of the matter and request the Court to make orders.

  2. Ground 9 states “My employer also has lodged a judicial review application for the nomination refusal MLG404/2021”. The Sponsor’s judicial review application in relation to the Delegate’s Sponsorship Decision was dismissed on 16 August 2024 for non-appearance pursuant to r 13.06(1)(c) of the Rules: Price Affidavit at [3] and Annexure “TP1”.

    Ground 4

  3. Ground 4 alleges that the Tribunal “failed to recognise that there were compelling circumstances […] for the temporarily closure of the business”. This ground has no prospects of success because the reasons why the nomination application was unsuccessful were not relevant to the Tribunal’s assessment of whether the First Applicant met the criteria in cl 187.233(3) of the Migration Regulations: Heenatigala & Anor v Minister for Immigration & Anor [2020] FCCA 1055 at [22]; Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 437 at [3]-[4]; Shazad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 at [31]. It was a mandatory requirement that the First Applicant be the subject of an approved nomination that had not been withdrawn. In the First Applicant’s Letter sent to the Tribunal on 21 February 2021, the First Applicant acknowledged he was not the subject of an approved nomination. On that basis alone, the Tribunal was required to refuse to grant the Visa notwithstanding any compelling or unfair reasons why the First Applicant did not meet the criterion.

    Grounds 6, 7 and 8

  4. Grounds 6, 7 and 8 alleged that the Tribunal denied the Applicants procedural fairness. I am satisfied that these grounds do not have reasonable prospects of success. 

  5. The Tribunal discharged its obligations pursuant to s 359A of the Migration Act. By way of the Section 359A Letter the Applicants were invited to comment or respond to information that the Delegate’s Sponsorship Decision had been affirmed by the Tribunal on 1 February 2021. The Section 359A Letter complied with the relevant legislative requirements and set out clearly the information and the relevance of the information. The Applicants were invited to respond to the Section 359A Letter by 19 February 2021 which they failed to do.

  6. The Tribunal had no power to invite the Applicants to attend a hearing under s 360 of the Migration Act. The Applicants failed to respond to the Section 359A Letter within the prescribed timeframe which effectively resulted in the Applicants losing their ability to attend a hearing. The Tribunal lost its power to permit the Applicants to attend a hearing in accordance with ss 359C(2) and 363A of the Migration Act.

  7. By reason of the Delegate’s Decision and the Section 359A Letter the Applicants were on notice that the First Applicant’s satisfaction of cl 187.233(3) of the Migration Regulations would be the dispositive issue in the review.

  8. As the Applicants failed to respond, or seek any extension of time to respond, prior to the expiry of the prescribed period on the Section 359A Letter, there was no error in the Tribunal proceeding to make a decision on the papers. The Tribunal considered the First Applicant’s Letter which conceded that the First Applicant did not meet the requirements for the grant of the Visa. There was nothing that the Applicants could say at a hearing that could have resulted in a different decision in circumstances where the First Applicant did not have an approved nomination.

  9. I am satisfied that the Applicants do not have reasonable prospects of successfully establishing that they were not “given a chance” to explain their “circumstances” as alleged in Ground 6.

  10. By reason of the foregoing, I conclude that the summary dismissal power is enlivened on the basis that the Applicants do not have reasonable prospects of successfully establishing that the Tribunal’s Decision is affected by jurisdictional error.

  11. Further, it would be futile to remit the matter back to the Tribunal for redetermination even if the Court was satisfied that the Tribunal Decision was vitiated by jurisdictional error. The First Applicant was not the subject of an approved nomination and did not meet the requirements of cl 187.223 of the Migration Regulations. This criterion could not be satisfied on the basis of any different nomination to that declared in the Visa Application: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [88]-[89]. It is noted that the Sponsor has been deregistered for over three (3) years: Price Affidavit at [4] and Annexure “TP2”.

  12. Therefore, any jurisdictional error would be immaterial as it could not have made any difference to the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. Remittal would therefore be futile as the Tribunal would be bound to again affirm the Delegate’s Decision.

    CONCLUSION

  13. Having considered the material before the Court and the submissions made by the parties, I am satisfied that the Applicants have no reasonable prospects of successfully prosecuting the Substantive Application. I therefore consider that it is appropriate to exercise my discretion to summarily dismiss the Review Application filed on 11 September 2024 pursuant to r 13.13(a) of the Rules.

  14. The Minister sought an order requiring the Applicants to pay the Minister’s costs of responding to the Review Application fixed in the sum of $1,000. I consider the claimed amount is appropriate given the Court’s costs scale for migration proceedings in Division 1 of Part 2 of Schedule 2 of the Rules.

  15. Orders will be made accordingly.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton KC.

Associate:

Dated:       21 November 2024


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Cases Citing This Decision

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Cases Cited

15

Statutory Material Cited

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Batta v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1176
Allison v Murphy [2021] FCAFC 232
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886