Brar v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 847
Federal Circuit and Family Court of Australia
(DIVISION 2)
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 847
File number(s): MLG 2957 of 2021 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: 23 Date of last submission/s: 10 October 2022 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicants: The Applicants submitting on their own behalf Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 2957 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP KAUR BRAR
First Applicant
HARMINDER SINGH BRAR
Second 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 21 August 2022 be dismissed.
2.The Applicants pay the First Respondents costs of and incidental to the application fixed in the sum of $1,964.00.
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
On 28 July 2022, Judicial Registrar van der Westhuizen summarily dismissed an application made by the Applicants, Gagandeep Kaur Brar and Harminder Singh Brar, for judicial review of a decision by the Administrative Appeals Tribunal (“the AAT”).
The Applicants had sought Regional Employer Visas. The delegate of the Minister had refused to grant those Visas. The Applicants sought a review before the AAT. The AAT affirmed the decision not to grant the Applicants the Visas. The Applicants sought a review from this Court.
The Judicial Registrar determined that the Applicants had no reasonable prospect of successfully prosecuting this application and summarily dismissed it. The Applicants have asked this Court to review that decision.
Reviews of Decisions
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.
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.
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
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.
The procedure for the review states that review must proceed by way of a hearing de novo.
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.
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.
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
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 submissions.
Procedural matters
As previously noted, the Applicants had a seven day time limit within which to file this application. The decision of the Judicial Registrar was made on 28 July 2022. This meant that the Applicants had until 4 August 2022 to file the application. The application was filed on 21 August 2022, some 17 days out of time.
Extension of time
The Applicants have asked for an extension of time, however the only explanation given was that they “had applied for Federal review within the time limit, which was declined”. The attempts to file this application were made on 17 and 18 August 2022. On 19 August 2022, the national migration team had informed the Applicants that they had not filed the proper documentation. The documentation was accepted on 21 August 2022.
This does not explain the delay as the filing should have occurred by 4 August 2022.
There are three aspects to which a Court looks when deciding whether to grant an extension of time. Firstly, a Court looks at the reason for the delay in filing; secondly, a Court looks at the prejudice that would be occasioned by the respondent; and, thirdly, a Court looks at whether the merits of the matter are such that a Court could say that there was an arguable case.
Merits
I adopt the factual matrix that was set out by the Judicial Registrar in his reasons. The analysis of the grounds of the application made by the Judicial Registrar are, in my view, quite correct.
But there is a greater and more fundamental reason why this application would be doomed. A Regional Employer Visa cannot be granted unless the Applicant for such a Visa is the subject of a nomination from an approved nominator.
In this case, the Applicants do not have an approved nomination. This means that no matter how laudable their credentials may be, they can simply not fulfil the essential criteria for the granting of this particular Visa.
The application, even if it had been filed on time, could never be successful.
Conclusion
Whilst the Court accepts that there would not be any real prejudice to the Respondents if the Court granted the extension of time, this is only one aspect of the issue. The Applicants have not produced a satisfactory reason as to why they filed the application out of time. The application itself is futile because the Applicants could never satisfy the essential requirement of being the subject of an approved nomination.
I refuse to extend the time within which to file the application and otherwise dismiss the application with costs.
Order
I order that the application be dismissed with costs fixed in the sum of $1,964.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 13 October 2022
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