Bui v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 77
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bui v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 77
File number: PEG 231 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 29 January 2025 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to seek review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicants’ judicial review application – extension of time refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143, 254, 256
Migration Act 1958 (Cth) ss 65, 349, 351
Migration Regulations 1994 (Cth) Sch 2 cll 482.223, 482.232
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 15.14, 21.01, 21.02, 21.04
Migration (IMMI 18/032: Language Test Requirements – Subclass 482 Visa) Instrument 2018 (Cth)
Cases cited: AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1361
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Bui v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1344
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704
Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186
Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 479
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 17 January 2025 Place: Perth Applicants: In person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 231 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DINH THE LOI BUI
First Applicant
LA THI THU HUONG
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time for the applicants to seek review of the decision made by a Registrar of this Court on 4 December 2024 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
On 4 December 2024 a Registrar of this Court summarily dismissed an application for judicial review filed by the applicants in relation to a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicants Temporary Skill Shortage (Short-Term) Class GK Subclass 482 visas (visas). The Tribunal decision was made on the basis that the first applicant had not provided evidence to show that he met the English language proficiency requirements for the grant of the visa.
In summarily dismissing the judicial review application, the Registrar was exercising delegated power. An exercise of delegated power is reviewable by a Judge. The applicants filed an application for review of the Registrar’s decision (Review Application). The Review Application was filed outside of the time limit prescribed by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) and the applicants sought an extension of time when they filed their application.
For the reasons explained below, I have decided not to grant the applicants an extension of time to seek review of the Registrar’s decision.
RELEVANT BACKGROUND
Visa application and the delegate’s decision
The applicants applied for the visas on 3 February 2021. One of the criteria for the grant of the visa was that set out in cl 482.223(1) in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), which required the first applicant to satisfy any language test requirements specified in an instrument. The relevant instrument was Migration (IMMI 18/032: Language Test Requirements – Subclass 482 Visa) Instrument 2018 (Cth) (IMMI 18/032).
The Minister’s Department wrote to the applicants on 5 February 2021, 7 April 2021, 7 May 2021 and 20 September 2021 requesting that the first applicant provide evidence of his English language competency by way of a test. The first applicant did not provide any such evidence but advised the Department on 12 July 2021 and 5 August 2021 that he had commenced the process of undertaking an English language test and provided evidence that he had a booking for a test confirmed on 4 September 2021. The first applicant was given 28 days from the test date to provide the test result and was advised that no further request would be made by the Department. The first applicant did not provide his test results to the Department.
On 29 October 2021 a delegate of the Minister refused to grant the applicants the visas, finding that the first applicant did not satisfy the requirements of cl 482.223(1) because he had not provided evidence of having passed an English language competency test.
Merits review by the Tribunal
On 8 November 2021 the applicants applied to the Tribunal for merits review of the delegate’s decision.
On 12 November 2021 the Tribunal wrote to the applicants requesting evidence that the first applicant met the English language requirements. The applicants did not respond to this request.
The applicants attended a hearing convened by the Tribunal on 5 June 2024. Shortly prior to the hearing, the applicants provided a submission prepared by their representative which contained the following relevant information in relation to the first applicant’s ability to meet the English proficiency requirements:
Kindly be informed that the applicant attempted several times to take an English language test … however, he was unable to attend the examinations due to work commitments. We are aware that the main Visa applicant needs to satisfy the language test requirements in the Regulations. However, the applicants are requesting that the Tribunal to look at the application wholistically and if possible, to relax the application of the Regulations in relation to the English Test requirements in 2021.
On 5 June 2024 the Tribunal affirmed the delegate’s decision.
The Tribunal in its reasons for decision recognised that the issue in the case was whether the first applicant met the English language proficiency requirements. The Tribunal found that the first applicant had not provided any English language proficiency test results to the Department of the Tribunal and acknowledged the first applicant’s oral evidence at the hearing that he sat the test about two years ago and had failed to pass. The Tribunal considered the submission made on behalf of the applicants by their representative and noted that it had no discretion in relation to the mandatory proof of English language proficiency requirement. The Tribunal found that the first applicant did not meet the requirement in cl 482.232[1] and that, as one of the essential requirements for the grant of the visa was not met, the decision under review was to be affirmed. The Tribunal also considered the evidence advanced by the applicants in relation to their particular circumstances and did not consider it to be appropriate to refer the matter to the Minister for ministerial intervention.
[1] The Tribunal referred to cl 482.232, which applies to visa applications in the medium-term stream, rather than cl 482.223, which applies to visa applications in the short-term stream. The provisions are in the same terms.
The application for judicial review
On 18 June 2024 the applicants made an application for judicial review of the Tribunal decision (Judicial Review Application). The sole ground in the application reads:
That decision of the Administrative Appeals Tribunal was affected by jurisdictional error whereby the Tribunal failed to properly consider whether the visa applicants satisfy the clauses set out in subclass 482 of the Migration Regulation 1994 particularly that in accordance to clause 482.223 of Schedule 2 and rather proceeded without considering the whole background of the case.
The application was accompanied by an affidavit sworn by the first applicant on 12 June 2024 which set out the ground in the application and further contained a second paragraph which appears to raise a second ground, namely:
Whether it would be proper for the Minister to waive the requirements of clause 482.223(1).
Summary dismissal of the Judicial Review Application
In a response to the Judicial Review Application, filed on behalf of the Minister on 18 July 2024, the Minister sought an order summarily dismissing the application under r 13.13 of the GFL Rules (Summary Dismissal Application).
The Summary Dismissal Application came before a Registrar for hearing on 4 December 2024 and the Registrar, amongst other things, summarily dismissed the Judicial Review Application with costs. The Registrar found that the applicants’ Judicial Review Application had no reasonable prospects of success. The Registrar provided reasons for the decision on 4 December 2024: see Bui v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1344 (Bui).
Relevant to the application presently before the Court, the Registrar made the following orders:
3.The application for judicial review 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).
4.The first and second applicants pay the first respondent’s costs fixed in the amount of $4,189.38.
Review Application
The Review Application was filed on 24 December 2024. The applicants indicated that they were seeking an extension of time to file the Review Application and seeking that orders 3 and 4 of the Order made by the Registrar be set aside.
The Review Application was accompanied by an affidavit sworn by the first applicant on 24 December 2024 in which he deposed:
1. I am the First Applicant and I am authorised to make this affidavit on behalf of applicants in this review application.
2. I seek an extension of time to file this application. We have tried to complete the application many times, but we had used the incorrect form and lodgement was not accepted by Court Registry. Our son helped us contact the Court and was given the correct form on 23 December 2024 at 3.13pm.
3. We believe Registrar erred in finding there was no reasonable prospect of success without giving us a full and proper hearing to present our case. We also believe the Registrar’s decision erred:
(a)by putting the ‘exempt applicant’ issue to ‘one side’ and therefore failing to make finding as to whether or not the exemption for the English test applied to us.
(b)at paragraph [17] and finding that the applicants did not challenge the request for referral to the Minister for consideration of the ministerial intervention when we did so at paragraph 2 of the first applicant’s affidavit.
The Review Application (including the extension of time application) came before the Court for hearing on 17 January 2025. The first applicant and the second applicant both made submissions at the hearing and the first applicant gave oral evidence at the hearing. Ms Ismailjee appeared at the hearing to present submissions on behalf of the Minister.
I treat the first applicant’s affidavit of 24 December 2024 with caution. At the hearing, the first applicant indicated that he did not understand his affidavit. The Court notes that r 15.14(3) of the GFL Rules requires that if a person making an affidavit does not have an adequate command of English, a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands and the translator must certify in or below the jurat that this has been done. There is nothing on the face of the affidavit to indicate that this occurred and the first applicant indicated that the affidavit was not translated or interpreted for him. In these circumstances, I read out the paragraphs in the affidavit at the hearing and had them interpreted for the first applicant by the Vietnamese interpreter who was assisting the applicants at the hearing. Even after doing this, I was not able to ascertain clearly from the first applicant that he agreed the paragraphs in the affidavit were true and correct. In his oral evidence, the first applicant deposed that the Review Application was filed late because he printed out the wrong form and had to do it again. This is sufficiently similar to the evidence at [2] of the first applicant’s affidavit that I am prepared to accept [2] of the affidavit, in conjunction with the first applicant’s relevant oral evidence, as his explanation for failing to file the Review Application on time. The first applicant did not say anything in his oral evidence that would confirm the content of [3] of his affidavit. I propose to consider this paragraph as submission rather than evidence.
RELEVANT LEGISLATION AND PRINCIPLES
Review Application
In deciding to summarily dismiss the Judicial Review Application under r 13.13(a) of the GFL Rules, the Registrar exercised the power delegated to him by s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.01(1), item 58 in Table 21.1 of the GFL Rules.
Where a Registrar exercises power delegated under s 254 of the FCFCOA Act, a party to the proceeding may apply to the Court for review of the exercise of that power within the time prescribed by the Rules of Court or any further time allowed by the Rules of Court: s 256(1) of the FCFCOA Act.
The prescribed time relevant to this review is set out in r 21.02 of the GFL Rules, which required the Review Application to be made within 7 days. However, this period may be extended by the Court under r 21.02(2) of the GFL Rules.
The Court’s review of the exercise of delegated power by a Registrar proceeds by way of a hearing de novo, in which the Court may receive as evidence any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04 of the GFL Rules.
Extension of time application
The Court has a discretion to extend the time for the applicants to file the Review Application. In considering whether to grant the applicants an extension of time, the Court will often have regard to matters such as the length of the delay, whether the applicants have a reasonable explanation for the delay, any prejudice to the Minister or other parties and the merits of the underlying application: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 (Hunter Valley Developments) at 348-349; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [29]; Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 479 at [40]. It is appropriate to have regard to these matters in considering whether to grant an extension of time ‘on any terms that the Court… thinks fit’ for the purposes of rule 21.02(2)(a) of the GFL Rules: see CTQ23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1066 at [27].
Summary Dismissal Application
In determining the extension of time application, it is appropriate to consider whether the applicants have reasonable prospects of success in the underlying application, which is the Review Application. The consideration of the Review Application itself requires the Court to look at whether the applicants have a reasonably arguable case in relation to the Summary Dismissal Application on a de novo review. It is therefore convenient to outline the relevant principles relating to the Court’s power to order the summary dismissal of the applicants’ Judicial Review Application below.
The Court is empowered pursuant to s 143(2) of the FCFCOA Act and r 13.13(a) of the GFL Rules to order that a proceeding be summarily dismissed 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.
On a de novo hearing of the Minister’s Summary Dismissal Application, the Minister would need to establish that the applicants have no reasonable prospect of successfully establishing that the Tribunal decision is affected by jurisdictional error: see AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 (AIZ22) at [36]. In this regard, the Court need not be satisfied that the applicants’ Judicial Review Application is hopeless or bound to fail for it to have ‘no reasonable prospect’ of success: s 143(3) of the FCFCOA Act; AIZ22 at [36]. Rather, the Court is required to consider whether, on a critical examination of the available material, there is a real question of law or fact which should be decided at trial: AIZ22 at [37].
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Extent of the delay and the explanation for the delay
With the Registrar’s decision being made on 4 December 2024, the Review Application to be filed within time was required to be filed by 11 December 2024. It was instead filed on 24 December 2024, resulting in a delay of 13 days. While a delay of 13 days is not excessive, in the context of a prescribed period of 7 days, it is also not insignificant.
The explanation for the delay is essentially that the applicants attempted to file an incorrect form and were therefore required to re-lodge the application using the correct form. This evidence was not challenged and I accept this explanation. However, there is no indication in the evidence that the applicants made any attempt to lodge the Review Application within time. In the absence of further detail about when the applicants attempted to lodge the review application using incorrect forms, and, if the first attempt was not made until after the expiration of the 7 day period, the reason for failing to attempt to file an application on time, I am unable to conclude that the applicants have an adequate explanation for the delay. The explanation for the delay is not, however, determinative of the application for an extension of time in this matter. Even if I were to find that the applicants have an adequate explanation for the delay, I would not grant the extension of time in circumstances where, for the reasons I have explained further below, I have found that there is no reasonable prospect of success if the extension of time were granted.
The first applicant in his oral evidence also referred to other matters relating to his visa, the reason it was refused, his employment and his paying of taxes in Australia. While these matters are no doubt important to the first applicant, they do not in any way explain why the applicants filed their Review Application outside of the prescribed timeframe.
Prejudice to the Minister
The Minister appropriately acknowledged that there would not be any specific prejudice to the Minister if the extension of time were granted. However, as submitted by the Minister, the mere absence of prejudice alone is not a sufficient reason to grant the extension of time: Hunter Valley Developments at 349.
Merits of the underlying application
The applicants seek an extension of time to review the Registrar’s decision to summarily dismiss the Judicial Review Application. If the extension of time were granted, on a de novo review of the Registrar’s decision, I would need to consider whether the applicants have reasonable prospects of success in the Judicial Review Application. In considering the merits of the underlying application, it is therefore convenient to focus on the merits of the Judicial Review Application.
The ground raised in the Judicial Review Application
The ground in the Judicial Review Application is an assertion that the Tribunal failed to ‘properly consider’ whether the applicants satisfied the requirements for the grant of a Subclass 482 visa, particularly cl 482.223, without considering the whole background to the case. It is unclear what the applicants mean by the phrase ‘properly consider’.
The Tribunal gave the applicants further opportunities (to those provided by the Department) to show that the first applicant met the English language proficiency requirement. As set out in the background above, the applicants were invited to provide information in writing and at the hearing convened by the Tribunal. I accept the Minister’s submission that the applicants were on notice from the Tribunal’s questioning at the hearing, as well as from the delegate’s decision and the various requests for information sent by the Tribunal and the delegate, that the determinative issue for the Tribunal would be whether the first applicant met the English language proficiency requirement. The Tribunal had regard to the evidence available to it in relation to whether the first applicant met the English language proficiency requirement, including the applicant’s oral evidence that he had failed the one IELTS test that he sat and made findings that were open on the evidence before it. The ground in the Judicial Review Application, insofar as it asserts that the Tribunal did not properly consider cl 482.223, has no reasonable prospects of success.
As submitted by the Minister, once the Tribunal found that the applicant did not meet the English language proficiency requirement in cl 482.223, it was not required to proceed to consider whether he met other criteria for the grant of the visa. To the extent that the applicants submit that the Tribunal failed to consider the whole background to the case or any of the other requirements for the grant of a Subclass 482 visa, such a contention would have no reasonable prospects of establishing jurisdictional error in the Tribunal decision.
The further issue raised in the first applicant’s affidavit of 12 June 2024
The first applicant’s affidavit of 12 June 2024 raises whether it would be proper for the Minister to waive the requirements of cl 482.223(1). I treat this as an assertion that the Tribunal erred by not waiving the requirements of that clause.
However, as the Tribunal noted in its reasons (at [18]), the Tribunal had no discretion to waive the criteria for the grant of the visa. The criterion in cl 482.223(1), that is the English language proficiency criterion, was a mandatory requirement for the grant of the visa. If the first applicant did not meet that requirement, he could not be granted the visa and the Tribunal had no option other than to affirm the delegate’s decision. That is because the Tribunal, for the purposes of the review, could exercise the powers and discretions conferred by the Migration Act on the person who made the decision being reviewed: s 349(1) of the Migration Act 1958 (Cth) (Migration Act). Pursuant to s 65(1)(b) of the Migration Act, when considering a valid visa application, if the Minister is not satisfied that the criteria for the visa are met, the Minister is required to refuse the visa. In circumstances where the Minister, for the purposes of making the decision under s 65 of the Migration Act, was unable to waive the criteria that the applicants were required to satisfy to be granted visas, the Tribunal too was unable to waive those criteria.
The applicants have no reasonable prospects of establishing jurisdictional error on the basis of the issue raised in the first applicant’s affidavit of 12 June 2024.
The further issues raised in the first applicant’s affidavit of 24 December 2024
There were two issues raised at [3] of the first applicant’s affidavit of 24 December 2024 which, as I indicated above, I propose to treat as submissions. Both relate to perceived errors in the Registrar’s decision. As the review of the Registrar’s decision, if the extension of time is granted, would be a review de novo, it is not necessary for the applicants to establish that the Registrar made any error. However, I will consider whether the matters raised in the affidavit give rise to a reasonably arguable assertion of jurisdictional error in the Tribunal decision.
The first issue raised is that the Registrar put the ‘exempt applicant’ issue to one side and failed to make any finding as to whether or not the exemption for the English test applied. To give this proper context, I note that the Registrar said at [10] of Bui, after setting out part of IMMI 18/032:
The term “exempt applicant” is defined by s 4 of IMMI 18/032, but I can put that issue to one side because the applicant did not claim to the delegate or the Tribunal that the first applicant fell within that definition, and there is no evidence before this Court that would support such a finding in any event.
The Tribunal’s consideration of whether the applicant was an ‘exempt applicant’ for the purposes of the English language proficiency requirement was not comprehensive. The Tribunal said at [12] of its reasons:
The relevant instrument for cl 482.232(1) is IMMI 18/032. This instrument sets out the English language test requirements as well as applicants who are exempt from these requirements. It states in 4(b) exempt applicants are ‘an applicant who has completed at least 5 years of full-time study in a secondary education institution or higher education institution where the instruction was delivered in English’.
This is not the only exemption that was set out in s 4 of IMMI 18/032. In that section the term ‘exempt applicant’ was defined as follows:
(a)an applicant who is a citizen of, and who holds a valid passport issued by, one of the following countries:
(i) Canada;
(ii) New Zealand;
(iii) the Republic of Ireland;
(iv) the United Kingdom;
(v) the United States of America; or
(b)an applicant who has completed at least 5 years of full‑time study in a secondary education institution or higher education institution where the instruction was delivered in English; or
(c)an applicant who has been nominated by a standard business sponsor in relation to an occupation that will be performed at:
(i) a diplomatic or consular mission of another country; or
(ii) an Office of the Authorities of Taiwan located in Australia; or
(d) an applicant:
(i)who has been nominated in relation to an occupation that requires the applicant to hold a licence, registration or membership to perform the occupation; and
(ii) who has been granted that license, registration or membership; and
(iii)who, for the purposes of the grant of that license, registration or membership, was required to demonstrate a level of English language proficiency that is equivalent to, or better than, the level of English language proficiency that is required to achieve the required test scores for an approved English language test that the applicant would have been required to achieve but for this paragraph; or
(e) who:
(i)is employed by a company operating an established business overseas; and
(ii)is nominated by a standard business sponsor who is that company or an associated entity of that company; and
(iii) will receive annual earnings of at least AUD96,400.
There is, however, nothing in the material before the Court to suggest that the first applicant claimed to be an exempt applicant for the purposes of the English language proficiency requirement. The delegate expressly acknowledged in their reasons that the first applicant had not claimed any such exemption and the applicants did not provide anything to the Tribunal to suggest that the first applicant was an exempt applicant. In circumstances where the applicants did not claim that the first applicant was an exempt applicant, or did not provide any evidence that suggested he was an exempt applicant, the applicants do not have any reasonable prospect of successfully arguing that the Tribunal erred by not considering whether the first applicant was an exempt applicant within the meaning of s 4 of IMMI 18/032.
The second issue raised in the affidavit of 24 December 2024 is that the applicants did not challenge the request for a referral to the Minister for consideration of the ministerial intervention powers. The applicants claim that they did so at paragraph 2 of the first applicant’s affidavit. This a reference to [17] of Bui, where the Registrar said:
I note that the Tribunal also declined the applicants’ request for the matter to be referred to the Minister for consideration of ministerial intervention… The applicants have not challenged that aspect of the Tribunal’s decision in their application for judicial review. In any event, the applicants can make their own request for ministerial intervention, they do not need the Tribunal to do that for them.
After referring to the evidence provided by the applicants, the Tribunal said at [26] of its reasons:
The Tribunal does not believe it appropriate to refer this matter to the Minister for intervention consideration as it does not meet the high bar required for such action by the Tribunal. It did however discuss with the representative that they may choose to undertake such actions on behalf of their client.
It is the conclusion at [26] of the Tribunal’s reasons that the Registrar referred to at [17] of Bui. The ground of application does not in any way challenge [26] of the Tribunal’s reasons. To the extent that the applicants referred to [2] of the first applicant’s affidavit, I infer that that is a reference to the first applicant’s affidavit of 12 June 2024. As indicated above, I treat that as an assertion that the Tribunal erred by failing to waive the requirements of cl 482.223. For the reasons explained above, that does not give rise to any reasonably arguable assertion of jurisdictional error in the Tribunal decision.
Even if I am wrong in that view, and the applicants are asserting that the Tribunal made a jurisdictional error by refusing to refer their matter for ministerial intervention, that would not amount to any reasonably arguable ground of the Judicial Review Application. Section 351 of the Migration Act allows the Minister, if he thinks it is in the public interest to do so, to substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The power in s 351 of the Migration Act is a personal non-compellable power of the Minister. The Tribunal may, in some cases make a recommendation in its reasons that the Minister may wish to consider exercising the power in s 351 of the Migration Act. However, the Tribunal’s making (or not making) of such a recommendation does not form part of the exercise of its statutory functions under the Migration Act. A decision not to refer a matter to the Minister for consideration of the exercise of the power in s 351 of the Migration Act cannot be the basis for a Court finding jurisdictional error in the Tribunal’s decision: see Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265[\ at [81]; AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1361 [121]-[128]; Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94 [101]-[107]; DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704 [87].
Other matters raised in the first applicant’s oral evidence and the applicants’ submissions at the hearing
The first applicant in his oral evidence to the Court referred to matters such as his visa application not being accepted, his decision to help his wife in the family business and he paid tax. These matters does not assert, and had no reasonable prospects of establishing, jurisdictional error in the Tribunal decision.
The applicants made submissions that they have been in Australia for 17 years and they are trying hard to be able to stay here. They have been running a business for 12 years and are doing well and they are paying taxes. The applicants submitted that if they are sent home, their worry is for their child who will be going back to school and they are not sure what they should do if they cannot be here with her. They are also worried about their shop. The applicants also submitted that they are hoping their three children can stay here and be sponsored. They submitted that they do not see anything wrong with the Tribunal decision and that they are just making a request to stay here.
While the Court appreciates that these matters are important to the applicants, the Court does not have any jurisdiction to grant relief to the applicants based on these matters. As I explained to the applicants at the hearing, when it comes to considering their judicial review application, the Court is only able to consider whether the Tribunal made a jurisdictional error and cannot consider for itself whether the applicants meet the criteria for a visa and cannot grant the applicants any visa on compassionate or other grounds. The matters raised in the applicants’ oral submissions do not amount to any reasonably arguable assertion of jurisdictional error in the Tribunal decision.
Conclusion in relation to the merits of the underlying application
None of the matters raised by the applicants in their Judicial Review Application, evidence or submissions to the Court have any reasonable prospects of success of establishing jurisdictional error in the Tribunal decision. In these circumstances, the Review Application, if the extension of time were granted, would have no reasonable prospects of success. This weighs heavily against the grant of an extension of time. As Mortimer J (as her Honour then was) said in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]:
It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes and an applicant an expectation, not grounded in law and reality, that her or his application may be successful.
CONCLUSION IN RELATION TO THE EXTENSION OF TIME APPLICATION
The lack of merit in the Review Application and Judicial Review Application weighs heavily against the grant of an extension of time to the applicants to file the Review Application. Notwithstanding that the delay is not excessive and that there is no prejudice to the Minister resulting from the delay, it is not appropriate to grant an extension of time in circumstances where the underlying application has no reasonable prospects of success. I therefore dismiss the extension of time application.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 January 2025
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