Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 210
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 210
Appeal from: Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 64 File number(s): MLG 2645 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 6 March 2024 Catchwords: MIGRATION — Application for extension of time — review of decision of Judicial Registrar — Temporary Skill Shortage (Class GK) (Subclass 482) visa — where application for review of decision was filed 12 days out of time — where grounds of review have no reasonable prospects of success — application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 28 February 2024 Date of hearing: 29 February 2024 Place: Melbourne The Applicant Appearing in person Solicitor for the Respondents: Mr Glass ORDERS
MLG 2645 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASKARAN SINGH DHILLON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 31 January 2024 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1,500.
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 MANSINI
IN SUMMARY
This is an application for an extension of the time in which to seek review of a decision by a Registrar to dismiss an application for judicial review.
The Applicant is a citizen of India who came to Australia in 2014.
For the past 5 years, the Applicant has pursued the award of a Temporary Skill Shortage (Class GK) (Subclass 482) visa.
Those efforts have to date been unsuccessful. Prior to filing in this Court, each of the decision-makers (a delegate of the First Respondent Minister and a Member of the Administrative Appeals Tribunal) determined that the application could not succeed because the Applicant does not have a nominating sponsor (among other issues).
On application to this Court for judicial review of the Tribunal’s decision, a Registrar summarily dismissed the application on the basis that it had no reasonable prospects of success.
The Applicant belatedly sought review of the Registrar’s decision and now asks the Court to extend the time for filing which would give him more time to try and sort things out with his original nominating sponsor or find a new sponsor or identify another way to get a visa.
For the reasons that follow, the extension of time is refused with costs.
APPLICATION TO EXTEND THE TIME FOR FILING
Legal framework
An application for review of the exercise of a Registrar’s powers must be made within 7 days of the exercise of the power, or within such further time as the Court allows: s.256(1) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act), r.21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) .
The Court has a broad discretion to allow a further time, which is to be exercised in the interests of the administration of justice.
The orthodox considerations for whether to exercise a discretion to allow a further time for filing include: the length of the delay, the explanation for the delay, any relevant prejudice and the merits of the substantive application.
It is well established that it will not be in the interests of the administration of justice to extend the time for a review application if the substantive application does not have sufficient prospect of success: see, in the context of a similarly worded but different provision, the guidance of the High Court of Australia in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12].
I turn now to consider the relevant factors in the context of the present case.
Duration and explanation for the delay
The length of the delay is a question of fact. In the present case, the relevant exercise of power was the Registrar’s decision to summarily dismiss the judicial review application which was made on 31 January 2024. An application for review of that decision was required to be filed by 7 February 2024. Lodgement of the application in this matter was first attempted on 16 February 2024 but the application was not accepted for filing in accordance with the Court’s Rules until 19 February 2024.
Typically, the longer the delay the more persuasive the explanation needs to be. It may be accepted that the delay in the present case is a relatively short period.
In terms of the explanation for the delay, taking the Applicant’s case at its highest, I accept that there was a reasonable excuse for that part of the delay which constituted the period from first attempted lodgement (on 16 January 2024) to when the application was filed (19 February 2024).
The Applicant’s explanation for the remainder of the delay was that he just did not know what to do after the Registrar refused his application and felt very stressed and could not sleep. He went to see a doctor and obtained medication. A medical certificate dated 14 February 2024 was produced to the Court which certified that the Applicant would be unfit for work from 15 to 16 February 2024 inclusive. At hearing, the Applicant accepted that this condition did not prevent him from taking steps to file his application as he had prepared the paperwork and first attempted to lodge it on 16 February 2024.
It is understandable that the Applicant experienced feelings of stress and despair after receiving notification of the Registrar’s decision to dismiss his judicial review application.
It is also acknowledged that the Applicant is a self-represented litigant who may not be familiar with Court processes and options for review. However, there are a range of publicly available sources of information to assist self-represented litigants with navigating the process which the Applicant here ultimately was able to do. In my view, without more, ignorance is a relevant factor but not of itself a reasonable or acceptable excuse for delay.
Taking into account all of the circumstances, the absence of an acceptable explanation in circumstances of a relatively short period of delay weighs only slightly against the grant of an extension of the time for filing the judicial review application.
Prejudice
The First Respondent properly did not contend to suffer any particular prejudice were an extension of the time for filing to be allowed.
The absence of prejudice is a factor that weighs neither for nor against the grant of an extension of the time for filing.
Merit of the judicial review application
The time limitation reflects the Parliament’s intention than an applicant should only have a short time in which to challenge a decision of a Registrar. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
A review of a Registrar’s decision by a Judge of the Court is conducted de novo or afresh. Accordingly, in considering the extension of time application, the Court is concerned with whether the grounds of the substantive application for judicial review are reasonably arguable.
The Applicant’s substantive application for judicial review raised 3 grounds:
1. My 482 visa application was refused for not satisfying the clause 482.212(1) of Schedule 2 of the Migration Regulations 1994 however my compelling circumstances were not considered by Administrative Appeals Tribunal member
2. As per invitation by honourable member under s359A of the Act , I was invited to comment upon information which it considered would, subject to the applicant's comments or response, be the reason, or part of the reason, for affirming the under review; however, my skills held and attributed gained on the basis of th qualification acquired so far was not considered as I have potential chances to look for an employer who can sponsor me and I may act as a suitable asset to support Australian economy.
3. The nominated position of Motor Mechanic (General) (ANZSCO Code 321 211) demands an approved nomination to satisfy the clause 482.212(1) of Schedule 2 of the Migration Regulations 1994; however I am not able to satisfy it without lawful status hence I seek judicial consideration in this matter.
(sic)
The Applicant sought a Subclass 482 visa based on a proposed nomination in the position of Motor Mechanic by proposed sponsor Christy Motors Pty Ltd. The proposed nomination was refused by a delegate of the Minister on 15 February 2019.
In relation to the first ground, the Tribunal considered that it was required to affirm the delegate’s refusal because the Applicant was not the subject of an approved nomination which is a mandatory requirement of a visa of this kind: cl.482.212(1) of Schedule 2 to the Migration Regulations 1994 (Cth). There is no error in this respect.
In relation to the second ground, the Tribunal considered the Applicant’s evidence and his request to postpone or delay the decision. The Tribunal was not obliged to indefinitely defer or delay its decision, particularly in circumstances where the Applicant did not have an approved nominee and the application could not succeed for that reason.
The third ground does not allege any jurisdictional error and is not capable of establishing any error of jurisdiction.
The Applicant accepted that at the relevant times he did not have an approved nominee (because he had a falling out with the proposed sponsor) and at the time of hearing before this Court did not have a nominee. He told the Court that, if he had more time, he would search for another nominee or another way to get a visa in order to secure his future in Australia.
As explained to the Applicant at the hearing, the role of this Court is limited to the identification of jurisdictional error in the Tribunal’s decision. That assessment must proceed on the basis of information that was before the Tribunal. This Court does not have the power to redetermine or consider the merit of the visa application.
Not being persuaded that there is any jurisdictional error established by the specified grounds, or otherwise apparent on the face of the Tribunal’s decision, it is concluded that the substantive application is not reasonably arguable.
This is a factor that weighs strongly against the allowance of further time in which the review application be filed.
Conclusion
The application in this case was filed 12 days outside the statutory time limitation. The Court may only grant an extension of the time within which the application was to be made if such extension is in the interests of the administration of justice.
Weighing all of the considerations above, and in particular that the substantive judicial review application has no reasonably arguable prospects of success, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the time within which to apply for review of the Registrar’s decision of 31 January 2024.
Accordingly, I will not extend the time for bringing the review application. I will order that the Applicant pay the Minister’s costs in the fixed amount of $1,500 which is less than the scale that the Regulations provide may be ordered in a case of this kind.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 6 March 2024
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