Dahmoul v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 151
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dahmoul v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 151
File number(s): SYG 1822 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 13 February 2025 Catchwords: MIGRATION – Application for review of Registrar decision summarily dismissing application – where application for review made out of time – time not extended and application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 136, 143, 254
Migration Act 1958 (Cth) ss 57, 256, 359A, 368D
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.03
Migration Regulations 1994 (Cth) cl 482.212 of Schedule 2
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Bechara v Bates (2021) 286 FCR 166
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
Division: General Federal Law Number of paragraphs: 46 Date of last submission/s: 20 December 2024 Date of hearing: Determined in Chambers Place: Sydney The Applicant: Unrepresented Solicitor for the Respondents: Mr L Dennis, Mills Oakley Lawyers ORDERS
SYG 1822 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED BADREDDINE DAHMOL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The purported application for review made, out of time, on 28 November 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 GIVEN:
On 19 November 2024, a Registrar of this Court summarily dismissed the applicant’s judicial review application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) on the basis that the application had no reasonable prospects of success. By a purported application[1] made pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) on 28 November 2024 (review application), the applicant now seeks review of that decision.
[1] See [27] to [31] below
BACKGROUND
This background is derived from the Court Book (CB) and the written submissions of the first respondent, but does not appear to be in dispute.
The applicant is a male citizen of France. On 2 November 2018, the applicant applied for a Temporary Skill Shortage (Subclass 482) visa (visa) in the medium-term stream on the basis of his employment with AK Empire Construction Pty Ltd (sponsor) in the nominated occupation of Carpenter/Joiner (CB 1 to 16). The visa application was lodged by the applicant’s migration agent and was accompanied by a number of supporting documents.
On 6 November 2018, the applicant was invited to comment on information pursuant to s 57 of the Migration Act 1958 (Cth) (Act). The information the subject of the invitation was that the sponsor did not have an approved nomination, meaning that the visa could not be granted. The applicant was invited to respond in writing within 28 days (CB 63 to 65). The applicant did not respond within the time allowed, or at all.
On 6 December 2018, a delegate of the first respondent refused to grant the applicant the visa on the basis that he was not the subject of an approved nomination as required by cl 482.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 71 to 77).
On 21 December 2018, the applicant applied to the (then) Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision (CB 78 to 81). The applicant appointed his migration agent as his authorised recipient and provided a copy of his passport, the delegate’s notification letter and a written submission explaining why a copy of the delegate’s decision record was not provided.
On 2 September 2022, the Tribunal invited the applicant (via his authorised recipient) to attend a hearing (to be held by telephone) on 10 November 2022 (CB 96 to 100).
On 13 September 2022, the applicant’s representative provided a completed hearing response form which was returned to the Tribunal together with a change of contact details form, the latter of which indicated that the applicant was no longer represented and provided an address for future correspondence with him (CB 106 to 112).
On 16 September 2022, the Tribunal invited the applicant to comment on information pursuant to s 359A of the Act (s 359A invitation) (CB 113 to 115), being that:
(a)the application for approval of the nominated position made by the sponsor had been refused by a delegate of the Minister (sponsor refusal decision);
(b)subsequently in a review of the sponsor refusal decision, the presiding Tribunal member had observed that the sponsor had been deregistered, which meant the sponsor’s application for the nominated position had not been approved; and
(c)the instant Tribunal explained that the above information was relevant to the review because it indicated that the applicant was not the subject of an approved nomination and was therefore not eligible for the grant of the visa. The applicant was required to respond on, or by, 30 September 2022.
On 26 September 2022, the applicant responded to the s 359A invitation saying that he had stopped working for the sponsor in 2020 because of the COVID-19 pandemic and financial problems. The applicant said he was looking for job as a carpenter in order to secure a new sponsor (CB 116 to 118).
On 10 November 2022, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the French language (CB 119 to 124).
The Tribunal decision
On 10 November 2022, the Tribunal affirmed the decision under review on the same basis as had the delegate, identifying that the issue in the review was whether the applicant was the subject of an approved nomination (CB 128 at [7]).
The Tribunal summarised its s 359A invitation and the applicant’s response (CB 128 to 129 at [8] to [10]).
The Tribunal recorded the applicant’s evidence given at hearing that he first arrived in Australia in 2017 on a working holiday visa, before commencing work as a carpenter and painter. The applicant told the Tribunal that he had stopped working for the sponsor in 2020 when the sponsor ceased trading as a result of the COVID-19 pandemic. The applicant said he had tried to find an alternative sponsor, but had been unsuccessful in doing so. The applicant confirmed that he had not worked for the sponsor since 2020 (CB 129 at [12] to [14]).
The Tribunal correctly observed that cl 482.212(1) of the Regulations required that the nomination identified in the visa application had been approved, was made by a person who was an approved work sponsor at the time of approval and had not ceased (CB 129 at [15]).
The Tribunal found that, because the applicant was not the subject of an approved nomination, he did not meet cl 482.212(1) of the Regulations. Accordingly, the Tribunal affirmed the decision under review (CB 129 to 130 at [16] to [18]).
APPLICATION TO THIS COURT
On 5 December 2022, the applicant commenced the instant proceedings by an application to show cause seeking judicial review of the Tribunal’s decision. By a Response filed on 18 January 2023, the first respondent sought orders that the judicial review application be summarily dismissed, with costs, pursuant to s 143 of the Court Act and r 13.13(a) of the Rules on the basis that the applicant had no reasonable prospect of prosecuting the proceedings (summary dismissal application).
On 10 March 2023, a Registrar of the Court made procedural orders for the preparation of the matter so that the summary dismissal application could be listed in due course. On 31 October 2024, the parties appeared before a Registrar of the Court by telephone for callover[2] on which occasion the summary dismissal application was listed for hearing before him (by Microsoft Teams)[3] at 3:30pm Australian Central Daylight Time on 19 November 2024. The Registrar made orders for the filing of written submissions and evidence by the parties in advance of the summary dismissal application. On 8 November 2024, the first respondent filed written submissions as ordered. The applicant did not file any documents in respect of the summary dismissal application in time, or at all.
[2] The applicant was assisted by an interpreter in the French language
[3] Presumably as the Registrar would be presiding from South Australia and the proceedings were commenced in the Sydney Registry
On 19 November 2024, the parties appeared before the Registrar (again by Microsoft Teams), at the hearing of the summary dismissal application. The first respondent was represented by a solicitor. The applicant was unrepresented but appeared again with assistance of an interpreter in the French language. At the conclusion of the hearing of the summary dismissal application, the Registrar made the following orders:
1.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).
2.The applicant pay the first respondent’s costs fixed in the sum of $3,763.90.
(dismissal orders).
On 28 November 2024, the applicant filed the review application together with an Affidavit, made by him on 25 November 2024 (November Affidavit) which annexed a copy of the dismissal orders, and a copy of the reasons for decision of the Registrar.
On 3 December 2024 the review application was docketed to me, and I made the following orders:
1.By 4:00pm on 10 December 2024 any party who elects for the application for review of a Registrar’s decision filed on 10 June 2023 (review application) to proceed to an oral hearing must notify the Court of that preference by email to the chambers of Judge Given at: [email protected], following which the matter will be listed for a hearing at a date to be advised.
2.In the event that no election is made pursuant to order 1, the parties are taken to have consented to the review application being heard and determined in chambers in its current form pursuant to, and for the purposes of, s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The applicants must file and serve an outline of written submissions in relation to the review application, including any application for an extension of time pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (EOT), by 4:00pm on 17 December 2024.
4.The first respondent must file and serve an outline of written submissions in relation to the review application and any EOT, by 4:00pm on 24 December 2024.
5.In the event that the applicants fail to comply with order 3 above:
a.order 4 above is vacated, and in lieu thereof the first respondent may file any written submission, including if only limited to the issue of costs; and
b.judgment is reserved to a time, and method, to be notified to the parties
6.Otherwise, judgment is reserved from the date upon which the first respondent files written submissions pursuant to order 4 above to a time, and method, to be notified to the parties
On 8 December 2024, the applicant sent an email to Chambers stating, inter alia, (errors in original):
I am fine for the matter to be done in chambers.
I will give a brief information to the court about my case.
In the absence of any further documents being filed by the applicant, the remaining content of the applicant’s aforementioned email will be treated as being a written submission (email written submission).
On 10 December 2025, the solicitor for the first respondent indicated by email to Chambers that the “first respondent was agreeable to the proceedings being determined in Chambers”. Accordingly, the parties having expressly consented to the proceedings being determined in chambers, and the Court has done so pursuant to s 136(4)(b) of the Court Act.
On 20 December 2024 the first respondent filed written submissions as ordered. The first respondent also filed an Affidavit of Thomas John Pattinson affirmed on 8 November 2024 (Pattinson Affidavit), upon which he relies.
Relevant principles for review of a Registrar’s decision
Section 254 of the Court Act permits the Chief Judge of this Court to delegate prescribed judicial powers to Registrars of the Court. Section 256 of the Court Act provides that a party to proceedings, in which a delegate has exercised a delegated power, may apply to the Court for review of the exercise of that power. Section 256 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.
Part 21 of the Rules state that an application for review must be filed within seven days after the order or decision is made (though this may be extended upon application). The review must proceed by way of a hearing de novo. If time is extended for the bringing of the review application, the Court’s task is to consider the first respondent’s application for summary dismissal afresh, and not to review the decision of the Registrar for error: see Bechara v Bates (2021) 286 FCR 166 at [24] per Allsop CJ, Markovic and Colvin JJ. For this reason, I have not had regard to the Registrar’s reasons for decision.[4]
[4] see [20] above
Extension of Time
The applicant filed the review application on 28 November 2024, 2 days outside of the prescribed time period, having regard to rr 21.02 and 21.03 of the Rules, which provide as follows:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
21.03 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of the power under review.
By his email written submission to the Court the applicant says the following
I delayed in filing this matter as I don’t know how to do it. I have help from friends
I am stressed and disappointed. Please kindly assist me as I am representing myself.
The applicant has not expressly sought an extension of time, though the statements above carry with them the implication that he is desirous of prosecuting his review application. Given that the extension of time is a precondition thereto, the Court will treat the aforementioned statements as constituting an application for an extension of time.
The Court has a broad discretion under r 21.02(2)(a) of the Rules to extend the time for seeking review if it thinks fit. In similar circumstances in AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426, this Court said the following at [12] and [15] about the factors relevant to assessing whether time should be extended:
[12] I am also prepared to accept the applicant’s submission outlined above as being an oral application for an extension of time. In other applications for extension of time in this jurisdiction, for example, under s 477 of the Migration Act 1958 (Cth) (Act), there are no mandatory statutory criteria for assessing whether to extend time, other than whether it is in the interests of the administration of justice to do so. Similarly, r 21.02 of the Rules does not prescribe any criteria for the exercise of the Court’s discretion to extend time in the review of a Registrar’s decision (noting that r 21.02(2)(a) provides that the Court may do so on any terms it thinks fit, or if the parties consent.
…
[15] In the absence of prescribed statutory criteria, I am of the view that the matters which relevantly arise to inform the exercise of the Court’s discretion to extend time under r 21.02 might include those which are commonly considered in an application under s 477 of the Act, such as:
(a) the period of delay;
(b)the explanation for it, noting that given that the time period in r 21.02 is brief indeed, and the general principle that the longer the delay, the more persuasive the explanation for it must be (see Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J), but that the seven-day period will require a proper explanation in the event that it is not met; and
(c) any prejudice to the parties.
In the present case, any application for review of the Registrar’s summary dismissal orders was required to have been made by 26 November 2024. The application, made on 28 November 2024 is therefore 2 days out of time. Despite a sub-heading in his written submissions on the review application which refers to the length of delay,[5] the first respondent makes no actual submission as to delay.
[5] First respondent’s written submissions filed 20 December 2024 at [16] to [17]
The delay is not especially lengthy, even by reference to the relatively short duration of the time provided by r 21.02(1) of the Rules.
In respect of the reason the applicant did not file in time, which can be summarised as being that he was not legally represented, the first respondent submitted that the applicant had managed to successfully file his judicial review application with the Court within time, despite being unrepresented. That is true, albeit the 35-day period in which to seek review in this Court is considerably lengthier than for a review application, and in this case was filed almost a month after the Tribunal made its decision. On one view, it may be understandable that it took the applicant some days, including across an intervening weekend, to compile the review application. That said, the Rules specify seven days and are made by the Chief Judge presumably in contemplation of the reality that most applicants within the Court’s Migration jurisdiction are unrepresented. In all the circumstances of this case, I am not persuaded that the applicant’s explanation for failing to file in time is reasonable. This weighs against time being extended, even accepting the period is brief.
Prejudice
The first respondent acknowledges that there is no prejudice to him if time were to be extended but says that the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349 per Wilcox J.
There is nothing in the applicant’s email written submission which expressly directs itself to addressing the question of prejudice however it can be accepted as a matter of logic that, if the Court were to refuse to exercise its discretion to extend the time in which the applicant can seek review of the Registrar’s decision, these proceedings remain at an end for him with potentially significant consequences to his migration status. As such, at this juncture the question of prejudice weighs in favour of time being extended. However, an ultimate assessment of prejudice should be undertaken once consideration is given to whether the judicial review application is sufficiently arguable.
Merit of the application
The grounds of review which the applicant advanced in the judicial review application direct themselves to the Tribunal’s s 359A letter and can be broadly summarised as being that the Tribunal failed to properly particularise to the applicant the identity of the sponsor, and failed to provide a company of the Tribunal’s decision in relation to the sponsor’s nomination to him. A second broad ground alleges that the Tribunal failed to engage in a genuine and intellectual way with the applicant’s case, the particulars to which are said to be that the Tribunal made a decision on the same day as the applicant’s Tribunal hearing.
Respectfully, the grounds of the application lack a reasonable prospect of success. The ground which centres on the s 359A letter fails to appreciate that the obligation on the Tribunal was to:[6]
give to the applicant, in the way that the [Administrative Appeals Tribunal] considers appropriate in the circumstances, clear particulars of any information that the [Administrative Appeals Tribunal] considers would be the reason, or a part of the reason, for affirming the decision that is under review
[6] see s 358A of the Act
In respect of the identity of the sponsor, the applicant well knew who the sponsor was and, for the reasons detailed at [42] below, it is clear that sponsors are not interchangeable. Provision of the ABN/ACN to him for verification purposes does not appear to have been necessary for any reason. To the extent that the balance of the particulars to the ground suggest that the Tribunal erred by not proving to the applicant that the particulars it put were true, again this seems not to be demonstrative of reasonably arguable error.
Next, there is nothing erroneous per se with the Tribunal making a decision on the same day as the hearing. By reference to the material in the Court Book, the following can be discerned:
(a)the hearing information sheet indicates that the hearing concluded at 10:40am (CB 124);
(b)the face of the decision record indicates the decision was made at 10:57am (CB 127); and
(c)the notification email to the applicant the decision was sent to him at 11:39am (CB 125).
It can be accepted that the period in which the Tribunal’s decision was made and sent to the applicant in the present case was objectively swift. However, given that the Tribunal has a discretionary power to give an oral decision (see s 368D of the Act (as at 10 November 2022)), the fact that the Tribunal produced a written decision on the same date as the decision, even rapidly, is not indicative of error in and of itself. In the present case, given the binary nature of the visa criteria and the evidence before the Court that indicates those criteria were not met because of the nomination refusal in respect of the sponsor, it is unsurprising that the Tribunal reached a decision with relative promptness. I am not satisfied that this ground would be reasonably arguable.
The first respondent also submits that even if the applicant were to establish any error (and none is apparent), it would be futile to remit the decision and the Court should refuse relief in its discretion, citing SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297. The first respondent contends that cl 482.212(1) of the Regulations required that the applicant have an approved nomination at the time of decision. The criterion could only be satisfied by approval of the original nomination which accompanied the visa application. Even if, as the applicant claims to have attempted, he secured a new nomination from a different sponsor, the first respondent says that the visa application could not be assessed against a new nomination application subsequently lodged by the employer: see Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [82] to [90] per Mortimer J (as her Honour then was).
Accordingly, the first respondent says that refusal of the nomination (which was subsequently affirmed by the Tribunal) was fatal to the applicant’s visa application, because the applicant could never satisfy the criteria for the grant of the visa on remittal, unless the sponsor were to successfully prosecute a judicial review application regarding that decision. In this regard, the first respondent relies on the Pattinson Affidavit which annexes[7] a search of the ASIC Register. By reference to that extract, the evidence before the Court indicates that the sponsor was deregistered on 10 January 2021 and remains deregistered. The first respondent submits that the corollary of that deregistration is that there is no person who has standing to bring proceedings in either the Tribunal (which would seem in any event to be functus officio) or, more specifically, to this Court in relation to the nomination refusal. I accept that submission and it further weighs against the suggestion that there is a reasonable prospect that the applicant could succeed, such that it is an additional basis weighing against time being extended.
[7] Annexure “TJP-2” to the Pattinson Affidavit
CONCLUSION
The delay in this matter is, relative to the period prescribed by the Rules, not significant but also not reasonably explained. Given that the review application does not appear to enjoy a reasonable prospect of success, the question of prejudice (now revisited) also weighs against time being extended.
In all the circumstances of this case, in the exercise of my discretion, the time in which to bring the review application should not be extended and, therefore, the review application is incompetent and will be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 February 2025
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