Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 686
•4 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 686
File number: PEG 1 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 4 August 2023 Catchwords: MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – where applicants sought judicial review of Tribunal decision that it did not have jurisdiction to conduct review – no adequate explanation for delay – no prejudice to respondents – no realistic prospects of success in judicial review application – application for extension of time refused Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 25
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 46, 65, 140E, 140GB, 338, 347, 411, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.04
Migration Regulations 1994 (Cth) reg 4.02, cl 407.213
Cases cited: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928
Dorji v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 491
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 1 August 2023 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 1 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SINGYE DORJI
First Applicant
DEMA CHOEKI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 AUGUST 2023
THE COURT ORDERS THAT:
1.The applicants’ oral application for an extension of time to review the decision made by a Registrar of this Court on 8 June 2023 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 8 June 2023 a Registrar of this Court summarily dismissed the applicants’ judicial review application in relation to a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal decision the subject of the judicial review application is a decision made on 29 November 2022 by which the Tribunal decided that it did not have jurisdiction in relation to the applicants’ application for review of a decision made by a delegate of the Minister not to grant the applicants a Training (Class GF) (Subclass 407) visa (visa).
The applicants filed an application for review of the Registrar’s summary dismissal decision and that application was listed for hearing before me on 1 August 2023. At the hearing, I explained to the first applicant that his application for review of the Registrar’s decision was filed late, and I allowed him to orally apply for an extension of time.
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.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicants applied for the visas on 16 December 2019 while in Australia. The first applicant is the primary visa applicant and the second applicant is the spouse of the first applicant and was included in the visa application as a member of the same family unit as the first applicant.
In the visa application, the first applicant proposed that ‘Da Lat City Vietnamese Pty Ltd’ (proposed sponsor) be his sponsor for the visa. The proposed sponsor had applied for temporary activities sponsorship on 14 December 2019 and that application was refused by a delegate of the Minister on 15 January 2020.
On 15 January 2020 the Department wrote to the applicants:
(a)advising that the proposed sponsor was not an approved temporary activities sponsor;
(b)advising that the first applicant was not identified in an approved nomination by the proposed sponsor or any other sponsor and therefore he was currently unable to meet the criterion in cl 407.213 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations); and
(c)inviting the applicants to comment or request to withdraw their visa application within 28 days.
The applicants did not respond to this invitation and on 20 July 2022 a delegate of the Minister made a decision not to grant the applicants visas as the delegate was not satisfied that the first applicant met the requirements in cl 407.213. The notice of the decision indicated that there was no right of merits review in relation to the decision.
On 22 August 2022 the applicants applied to the Tribunal for review of the delegate’s decision and on the same day, the Tribunal wrote to the applicants inviting them to comment on the validity of their application for review. The first applicant provided a response on 2 September 2022.
On 29 November 2022 the Tribunal made a decision that it did not have jurisdiction in the matter. The Tribunal identified that the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal are set out in ss 338 and 411 of the Migration Act 1958 (Cth) (Migration Act) and reg 4.02(4) of the Regulations. The Tribunal outlined the circumstances in which decisions in relation to the visas the applicants applied for are reviewable and found that the applicants’ application was not reviewable because the first applicant did not at any time have an approved sponsor.
JUDICIAL REVIEW APPLICATION AND SUMMARY DISMISSAL DECISION
The judicial review application to this Court was filed under s 476 of the Migration Act on 3 January 2023. The applicants raised the following three grounds of application:
1.The Administrative Appeals Tribunal (AAT) ought to have considered the evidence before it and exercise its jurisdiction according to the substantial justice and the merits of the case.
2.The AAT had jurisdiction to hear the applicant’s matter pursuant to ss 25 of the Administrative Appeals Tribunal Act 1975 and ss. 65 and 347 of the Migration Act 1958.
3.By finding that it had no jurisdiction to review the decision of the delegate, the AAT failed to undertake the statutory task it is empowered to do and thereby committed a jurisdictional error.
The Minister in his response to the application sought orders that the application be summarily dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
The matter was listed for hearing before a Registrar of this Court on 8 June 2023 in relation to the summary dismissal application. On that occasion the Registrar, exercising power delegated pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act),[1] made a decision to summarily dismiss the applicant’s judicial review application pursuant to r 13.13(a) of the GFL Rules. The Registrar published written reasons in relation to this decision on 9 June 2023: Dorji v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 491 (Registrar’s reasons).
[1] See also item 58 in r 21.01 of the GFL Rules.
APPLICATION FOR REVIEW OF THE REGISTRAR’S DECISION
On 4 July 2023 the applicants filed an application for review of the Registrar’s decision. In the application for review, the applicants sought the following orders, which they had also sought in the original judicial review application:
1.prohibition against the Minister restraining him from acting upon the Tribunal’s decision;
2.certiorari to quash the Tribunal’s decision;
3.mandamus to compel the Tribunal to hear and determine the matter according to law;
4.Alternatively, declaration that there was no “valid visa application” within the meaning of s 46 of the Migration Act.
The application for review of the Registrar’s decision came before me for hearing on 1 August 2023. The first applicant appeared for himself at the hearing and the Minister was represented by Ms Ellis. The second applicant did not appear.
As indicated above, at the hearing I expressed the view to the first applicant that the application for review of the Registrar’s decision had been filed outside of the seven day prescribed time frame. I gave the first applicant an opportunity to make an oral application for an extension of time and he availed himself of that opportunity.
I confirmed with the parties that I had the same documents before me as those that were before the Registrar identified at [10] of the Registrar’s reasons. The Registrar treated an affidavit of the first applicant filed on 8 June 2023 as a submission rather than evidence and I indicated to the parties that I proposed likewise to treat that affidavit as a submission. Both parties agreed this course was appropriate.
The applicants proposed to rely on two further affidavits deposed by the first applicant. Both of these affidavits were provided to Chambers shortly before the hearing, but at the time of the hearing only one of the affidavits had been filed on the Electronic Court File. The first applicant confirmed at the hearing that the applicants relied on both of these affidavits. The affidavit that had been filed on the Electronic Court File is an affidavit in substantially the same terms as the affidavit filed on 8 June 2023. As with the affidavit filed on 8 June 2023, it is more appropriate to treat this affidavit as a submission rather than evidence and I indicated to the first applicant that I would have regard to the affidavit on the basis that it was a submission. The subject matter of that submission relates to the summary judgment application and why the first applicant believes that the Tribunal decision is affected by error. The second affidavit sets out the first applicant’s views in relation to the Registrar’s decision and also is more appropriately treated as a submission than as evidence. I advised the first applicant at the hearing that I would treat that affidavit as a submission.
LEGISLATION AND PRINCIPLES RELEVANT TO AN APPLCIATION FOR REVIEW OF A DECISION MADE BY A REGISTRAR
In the present matter, the Registrar exercised power delegated by s 254 of the FCFCOA Act and r 21.01(1) (item 58) of the GFL Rules to summarily dismiss the judicial review application, pursuant to r 13.13(a) of the GFL Rules.
Section 256(1) of the FCFCOA Act allows a party to a proceeding in which the delegate has exercised the powers of the Court under s 254 to apply to the Court for review of the exercise of that power. The application for review must be made within the prescribed time frame. The prescribed time frame relevant to the present matter is set out in r 21.02(1) of the GFL Rules, which requires that an application for review of the exercise of a power by a Registrar be made within seven days. However, this time frame can be extended by the Court pursuant to the r 21.02(2)(a) of the GFL Rules on any terms that it thinks fit.
A review of the exercise of a power by a Registrar proceeds by way of a hearing de novo, with the Court able to 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.
CONSIDERATION OF EXTENSION OF TIME APPLICATION
Relevant considerations
There are no prescribed matters that the Court must take into account in considering whether to grant the extension of time for the applicants to seek review of the Registrar’s decision. However, the types of considerations that a court will ordinarily take into account in considering whether to grant an extension of time are well-established: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments) and, in the context of another application for an extension of time to seek review of a Registrar’s decision, Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886. Those considerations include the length of the delay, whether the applicants have a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the application in relation to which the extension of time is sought.
Length of the delay
In the present case the application for review was filed approximately two and a half weeks outside of the prescribed time frame. I accept the Minister’s characterisation of this delay as moderate and I accept the Minister’s submission that the length of the delay should be assessed in the context of a very short prescribed time frame of seven days.
Explanation for the delay
The applicants have not filed any affidavit evidence explaining the delay, which is not surprising in circumstances where the first applicant did not appear to understand that his application had been filed late until I raised this issue with him at the hearing.
I gave the first applicant an opportunity at the hearing to explain the reasons for the delay. The first applicant submitted that he was unaware of the relevant time frame and he relied on his friends in filing his application for review. I am prepared to proceed on the basis that this submission is an accurate representation of the reasons for the delay, even though it is not supported by evidence, given that the applicants were unaware prior to the hearing of the need to provide evidence explaining the delay.
However, I do not accept that the explanation amounts to an adequate explanation for the delay. Ignorance of time limits, without any further justification, is generally not regarded as a satisfactory explanation for a delay in filing an application: see, for example, SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38]; AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928 at [45(c)]. The onus was on the applicants to make proper inquiries or otherwise take reasonable action to ascertain the relevant time limit for seeking review of the Registrar’s decision: see, for example, SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [43]; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. I do not consider that simply asking friends amounts to making proper inquiries or otherwise taking reasonable action to ascertain the time limit for seeking review of the Registrar’s decision.
I accept the submission advanced by Counsel for the Minister that the applicants have not provided an adequate explanation for the moderate delay in this matter.
Prejudice to the Minister
Counsel for the Minister accepted that there is no real prejudice to the Minister arising from the delay and I am satisfied that the Minister would not suffer any real prejudice if I were to grant the extension of time. However, the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits of the application
In considering whether to grant an extension of time for the applicants to seek review of the Registrar’s decision, it is appropriate to consider whether the applicants have a reasonably arguable case to prevent summary dismissal of their judicial review application on a de novo review of the Registrar’s decision.
The Court has the power to summarily dismiss the application for judicial review if the applicants have no reasonable prospects of successfully prosecuting the judicial review application: see r 13.13(a) of the GFL Rules. This necessarily directs attention to the applicants’ judicial review application.
The applicants’ grounds of application when read with their affidavits and submissions essentially give rise to two main issues:
(a)whether the Tribunal erred in finding that it did not have jurisdiction to in relation to the applicants’ application for review of the delegate’s decision; and
(b)whether the Tribunal should have waived its jurisdiction requirements.
Based on the grounds raising these issues, the applicants do not have any meaningful prospects of being able to persuade the Court that the judicial review application should not be summarily dismissed.
In relation to the first issue, the Tribunal’s decision that it did not have jurisdiction was the only decision open to it on the material before it in this matter.
The Tribunal would only have had jurisdiction to review the delegate’s decision not to grant the applicants visas in the present case if the delegate’s decision was a ‘Part 5-reviewable decision’ within the meaning of s 338 of the Migration Act. I accept the Minister’s submission, which was also accepted by the Registrar, that the relevant paragraph to consider in determining whether the Tribunal had jurisdiction in the present matter is s 338(2)(d) which provides:
A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
…
(d)if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii)a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii)a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
A subclass 407 visa, which is the visa the applicants applied for, is prescribed for the purposes of s 338(2)(d) of the Migration Act by reg 4.02(1A)(b) of the Regulations.
The Tribunal recognised in its decision that the first applicant did not at any time have an approved sponsor. On the evidence before the Court this is correct. The affidavit of Benjamin Mayne affirmed on 2 May 2023 indicates that:
(a)the proposed sponsor’s application for the purposes of s 140E of the Migration Act to be an approved temporary activities sponsor was refused on 15 January 2020; and
(b)the proposed sponsor’s nomination of a program of occupational training in relation to the first applicant for the purposes of s 140GB(1)(b) of the Migration Act was finalised in the Department’s records as ‘otherwise finalised’ because there was no sponsorship on 15 January 2020.
The proposed sponsor did not seek merits review of the decision refusing to approve it as a temporary activities sponsor. The Minister explained in his written submissions that recording the nomination in respect of the first applicant as ‘otherwise finalised’ was consistent with Departmental policy which states:
If a sponsorship application is refused or withdrawn then the nomination cannot be approved but should not be refused either. Rather… any on-hand nominations related to that sponsorship must be finalised as “otherwise finalised” in departmental systems with sufficient notes to clearly identify the reasons of finalisation…
Based on the evidence before the Court, I am satisfied that the delegate’s decision was not a ‘Part 5-reviewable decision’ within the meaning of s 338 of the Migration Act and, in particular, within the meaning of s 338(2)(d). In circumstances where the first applicant was never sponsored by an approved sponsor, s 338(2)(d)(i) and (iv) cannot be met, and in circumstances where there was no relevant review application by the proposed sponsor before the Tribunal, s 338(2)(d)(ii) and (iii) cannot be met.
Nothing raised in the applicants’ grounds, affidavit or submissions alters my view that the Tribunal was correct to find that it did not have jurisdiction. In particular, the applicants submitted that jurisdiction was conferred on the Tribunal pursuant to ss 65 and 347 of the Migration Act and s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). I do not accept this submission. Section 65 of the Migration Act requires the Minister to make a decision to grant or refuse to grant a visa where a valid application for a visa has been made. It does not confer any jurisdiction on the Tribunal. Section 347 of the Migration Act relates to applications for review of Part 5-reviewable decisions, and specifies how such applications should be made and who can make such applications. It has no application in circumstances where, as in this case, the delegate’s decision does not meet the definition of a Part 5-reviewable decision. Section 25 of the AAT Act relevantly provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. The relevant effect of this provision is that the Migration Act may make provisions for the Tribunal to have jurisdiction to conduct reviews in relation to the exercise of powers under the Migration Act, but s 25 of the AAT Act does not otherwise confer jurisdiction on the Tribunal to review migration decisions. Section 25 of the AAT Act did not give the Tribunal jurisdiction to review the delegate’s decision in this matter.
In relation to the second issue, I agree with the Minister’s submission and the Registrar’s finding that the Tribunal did not have any power to waive its jurisdiction requirements or to exempt the applicants from the need to comply with the jurisdictional requirements. The Tribunal cannot confer jurisdiction on itself and if the Tribunal does not have jurisdiction in a matter it has no power to conduct a review.
The applicants’ grounds set out in their judicial review application have no realistic prospects of success and it follows that the applicants have no realistic prospects of persuading the Court by those grounds that the summary dismissal of their application is not appropriate.
Although the grounds raised in the application only address the issues discussed above, in both the judicial review application and the application for review of the Registrar’s decision, the applicants sought as alternative relief a declaration that the visa application was not a valid application for the purposes of s 46 of the Migration Act. None of the grounds raised by the applicants support the grant of this relief. I raised this issue with the first applicant at the hearing and he chose not to make any submissions about the validity or invalidity of the visa application. There is nothing in the evidence before the Court to suggest that there is any basis for finding that the visa application was not a valid application, and the seeking of a declaration of invalidity in relation to the visa application does not give rise to any meaningful prospects of the applicants being able to persuade the Court that their judicial review application should not be summarily dismissed.
The absence of the applicants having any realistic prospects of success in relation to their application for review of the Registrar’s decision summarily dismissing their judicial review application weighs heavily against the grant of the extension of time.
CONCLUSION
Taking into account the moderate length of the delay in seeking review of the Registrar’s decision, the absence of any adequate explanation for that delay and the absence of the applicants having any realistic prospects of successfully persuading the Court that their judicial review application should not be summarily dismissed, I have reached the view that the application for an extension of time to seek review of the Registrar’s decision should be refused.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 August 2023
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