Brar v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 846

Federal Circuit and Family Court of Australia

(DIVISION 2)

Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846

File number(s):

MLG 326 of 2022

Judgment of:

JUDGE VASTA

Date of judgment:

13 October 2022

Catchwords:

 MIGRATION – review of judicial registrar’s decision – extension of time – futility of application – application dismissed    

Legislation:

Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): Part 21, r 1.07  

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

7 October 2022

Date of hearing:

In Chambers

Place:

Brisbane

Counsel for the Applicant:

the Applicant providing written submissions on his own behalf

Solicitor for the First Respondent:

Mills Oakley

ORDERS

MLG 326 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JAGMEET SINGH BRAR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	13 OCTOBER 2022

THE COURT ORDERS THAT:

1.The Application for review filed on 4 August 2022 is dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,200.00

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 VASTA

Introduction

1. On 26 July 2022, Judicial Registrar Carney summarily dismissed an application, for judicial review, by the Applicant, Jagmeet Singh Brar.  The Applicant had applied for a regional employer Visa.  That visa had been refused by the delegate of the Minister.  The Applicant then sought review before the Administrative Appeals Tribunal (“the AAT”).  The AAT affirmed the decision.

2. The review before this Court was summarily dismissed by the Judicial Registrar because he was satisfied that the Applicant had no reasonable prospect of successfully prosecuting the judicial review application.

3. The Applicant has sought a review of that decision.

   Reviews of Decisions

4. Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the Division 2 Judges to “delegates”.  Relevantly for this matter, the power of a Judge to make the form of order that was made, has been delegated to the Registrar.

5. As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power.  The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.

6. The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.

   The Rules of Court

7. Part 21 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) pertains to the review of exercise of power by a Registrar or Judicial Registrar.  The Rules state that a review must be filed within 7 days after the order or decision is made (though this may be extended upon application).  The application must be served not later than 7 days after it is filed and the application must be listed for hearing as soon as possible and within 14 days after the filing, unless it is not practicable to do so.

8. The procedure for the review states that review must proceed by way of a hearing de novo.

9. The Rules state that the Court may receive as evidence any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.

10. The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.07 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time.  The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.

11. Whilst the Rules state that the Court must embark upon a “hearing de novo”, this simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power.  The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.

    This Review

12. I have decided that this review will be conducted as a hearing de novo on the papers.  To this end, I made a number of directions requiring the parties to make their submissions.  I have had regard to those orders and the response by the parties.

    Procedural matters

13. As previously noted, an Applicant has seven days in which to file an application for review.  The decision of the Judicial Registrar was made on 26 July 2022.  This meant that the Applicant had to file his application for review by 2 August 2022, and if such was not filed by that time, the Applicant had to seek an extension of time.

14. The application for review was filed on 4 August 2022 and was, therefore, outside of the time limit for such applications to be made.  There has been no extension of time sought by the Applicant.

15. I made orders on 23 August 2022 requiring the Applicant to file and serve written submissions by 27 September 2022.  I made this order not just for the efficient running of the review application but giving the Applicant a further chance to seek an extension of time.  The Applicant filed an affidavit which I understand to be his submissions but that did not include a request for an extension of time.

16. The application must be made in accordance with the approved form and the Applicant has not used the approved form.  The form the Applicant used was the application for review from bankruptcy proceedings.

17. Because the application was not made within the seven-day time period, and there has been no application for an extension of time, it must be dismissed.

    Futility

18. Even if the application were competent, it would necessarily have failed.  This is because the Applicant must be the subject of an approved nomination before he can be granted the Regional Employer Visa.  He did not have that nomination.

19. The consequence of not having that nomination is that the Minister and the AAT are precluded from granting the Applicant the Regional Employer Visa.  There are no circumstances under which the Applicant could be granted a Visa if he did not have such a nomination.

20. For this reason, the application would be ultimately doomed in any event.

    Order

21. I order that the application for review is dismissed with costs fixed in the sum of $1200.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       13 October 2022