Chaudhari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 299

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Chaudhari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 299

File number(s):	BRG 278 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	7 March 2024
Catchwords:	MIGRATION – review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	19
Date of last submission/s:	7 March 2024
Date of hearing:	7 March 2024
Place:	Brisbane
Counsel for the Applicants:	The Applicants appearing on their own behalf with the assistance of an interpreter

ORDERS

BRG 278 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MANISHABEN PAVANKUMAR CHAUDHARI

First Applicant

PAVANKUMAR DALSANGBHAI CHAUDHARI

Second Applicant

ANTRA PAVAKUMAR CHAUDHARI

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	7 MARCH 2024

THE COURT ORDERS THAT:

1.The application for extension of time for filing is refused.

2.The application for review filed on 11 February 2024 is dismissed.

3.There be no order as to costs.

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
(Ex tempore)

JUDGE VASTA

1. On 17 January 2024, a Registrar of this Court summarily dismissed an application by the Applicants for a review of a decision of the Administrative Appeals Tribunal (“the AAT”). That decision of the AAT affirmed a decision not to give the Applicants, Mrs Manishaben Pavankumar Chaudhari, Mr Pavankumar Dalsangbhai Chaudhari and Ms Antara Pavankumar Chaudhari, employer nomination visas.

2. Given this was a decision of the Registrar, an Applicant is entitled to ask this Court to review the decision of the Registrar.  However, any application to review the Registrar's decision must be made within seven days of the Registrar's decision.  This meant that the application had to be filed by the 24th of January 2024.  The application was not filed until 11 February 2024, 18 days after the deadline.  This means that today's application must be treated as an application for extension of time. 

3. There are three things that the Court looks at in deciding whether to give an extension of time.  Firstly, what reason was there for the late filing of the application?  Secondly, what, if any, prejudice is there to the Minister if the Court allowed the application?  Thirdly, are the merits of the application itself amount to an arguable case for the relief that has been sought? 

4. I will talk about the third aspect firstly.  The Applicants made the application for the visas on 14 September 2016.  The female Applicant was the primary Applicant and the other two Applicants were dependent upon her application.  The position, which the Applicant said was the job she would work, was as a retail buyer. 

5. The employer was a company called Krishna Group Pty Ltd.  Because the Applicants had made this application, it could not be successful unless Krishna Group were given the approval by the Department to be a nominated employer.

6. Because the two applications, that is the Applicant's application and the employer's application, were submitted at the same time, the Department looked at the employer’s application first.  On the 20th of July 2018, the Department refused to approve Krishna Group as a nominated employer. 

7. The employer, Krishna Group, asked the AAT to look at their application again.  The AAT affirmed the decision that the Krishna Group would not be given approval as a nominated employer.  That decision was made on 13 April 2021. 

8. The Department then turned to looking at the application of the Applicants.  Because the Applicants did not have an approved nominated employer, the prerequisite for their visa was not met.  For that reason, both the Department, and then the Tribunal, refused to give the applicants the visa.  That decision of the Tribunal was made on 31 May 2021. 

9. The Applicants asked this Court to review that decision on 29 June 2021.  As I explained to the applicants in the hearing today, the application would only be successful if the Applicants could show what error the AAT had made. 

10. In the application, the Applicants had said that the Tribunal did not act in their best interests.  But when I asked the Applicants today about their application, the Second Applicant, speaking on behalf of the other two Applicants, made a very honest concession.  He said to me that he knew that the Krishna Group did not have the approval, but that he wanted to use the legal system to stretch out the process for as long as he could, so that he could stay in Australia for as long as he possibly could.  It seems to me then, that in those circumstances, there could never be said to be an arguable case for the relief sought in this matter. 

11. I then turn to the second aspect, which is prejudice to the Minister.

12. Today, the Minister has failed to appear, notwithstanding that the Court had notified the Minister quite some time ago and the Court attempted to contact the Minister at the beginning of today's hearing.  It does not seem to me that there could be any prejudice to the Minister in these circumstances. 

13. Notwithstanding the failure of the Minister to attend, because this matter has been in the system for so long and the Applicant and the interpreter were present, the Court decided to still conduct the hearing.  The Court did have the advantage of the written submissions that the Minister had put before the Registrar. 

14. I then turn to the first aspect.  The Second Applicant explained to me that he did not have a lawyer to help him.  He explained to me that he had a friend help him and that neither he, nor his friend, were conversant with all of the Rules of Court.  He said that that was why the matter was filed late. 

15. While those matters may be somewhat unfortunate, they do not provide an adequate excuse as to why the matter was not filed within seven days. 

16. Having a look at all three aspects together, I am not persuaded that the Court should extend the time within which to file this application. 

17. The female Applicant said to me that her husband, the Second Applicant who had conducted the majority of the application, was currently working on a farm.  She said to me that the farmer is going to sponsor them, and the husband is hopeful of being able to be given a work visa with the farmer as the approved employer.  She asked me to stretch the time as much as I could so that the husband could do his English test and hopefully be able to get a visa. 

18. I explained that the Court cannot do this, and any such extensions must be a matter for the Minister for Immigration only. 

19. The order of the Court is that the application for extension of time is refused and that the application for review is therefore dismissed.  I will make no order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       9 April 2024