Gill v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 674
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gill v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 674
File number: MLG 2575 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 30 July 2024 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) ss 143, 254, 256
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 Act 1958 (Cth) ss 359A, 360
Migration Regulations 1994 (Cth) Sch 2, cl 187.233
Cases cited: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 507
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Poonia v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 395
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 479
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 17 July 2024 Place: Melbourne Applicants: The first applicant and the second applicant appeared in person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 2575 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP KAUR GILL
First Applicant
SUKHJINDER SINGH
Second Applicant
SIDAK KAUR BIRRING
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time, made orally by the applicants on 17 July 2024, to seek review of the decision of a Registrar of this Court made on 4 June 2024 is dismissed.
2.The first applicant and the second applicant are to pay the first respondent’s costs of the application, fixed in the amount of $1,200.
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 June 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 an earlier decision of a delegate of the Minister not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visas (visas).
The applicants filed an application for review of the Registrar’s decision. This application was filed outside of the time limit prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) and the applicants made an oral application for an extension of time at the hearing.
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.
FACTUAL AND PROCEDURAL BACKGROUND
Visa application and delegate’s decision
The applicants applied for the visas on 24 October 2017 in the Direct Entry stream. The first applicant was the primary visa applicant, her nominated occupation was ‘Cook’, and she was sponsored by L & A Walters Pty Ltd (sponsor). The other applicants were included in the visa application as members of the same family unit.
The Minister’s Department wrote to the applicants on 30 April 2019 advising that the associated nomination lodged by the sponsor had been refused and that this meant the applicants’ visa application could not be approved. The letter advised that the applicants had the option of withdrawing their application if they wished to do so, and that if they did not respond within 28 days and the application had not been withdrawn then the application would be refused.
The applicants did not provide a response and on 30 May 2019 a delegate of the Minister refused to grant the applicants the visas.
Merits review by the Tribunal
The applicants then applied to the Tribunal on 17 June 2019 for review of the delegate’s decision.
On 2 September 2022 the Tribunal invited the applicants to attend a hearing scheduled on 25 October 2022.
The Tribunal wrote to the applicants on 6 September 2022 inviting them to comment on or respond to information by 20 September 2022. The Tribunal gave the following particulars of the information:
•The application for approval of the nominated position made by L & A WALTERS PTY LTD (the nominator) was refused by a delegate of the Minister of immigration. The nominator sought a review of that decision, but they have now withdrawn that application for review.
•This means that the nominator’s application for the nominated position has not been approved.
On 19 September 2022 the applicants provided the Tribunal with a letter from the first applicant in response and a letter of support from the first applicant’s new employer. In her letter, the first applicant requested that the Tribunal grant her the opportunity to make a new visa application sponsored by her new employer.
The first and second applicants attended the hearing before the Tribunal on 25 October 2022 to give evidence and present arguments.
On 2 November 2022 the Tribunal affirmed the delegate’s decision. The Tribunal identified that the issue for its consideration was whether the first applicant met the requirements of cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal noted that there was no approved nomination for the first applicant and no review of that refusal decision pending, and recorded that the first applicant conceded that she was not the subject of an approved nomination by any other nominator. The Tribunal found that the first applicant did not meet cl 187.233 and, based on this finding, was not satisfied that the other applicants met the secondary criteria for the grant of the visas.
Judicial review application
The applicants filed an application in this Court on 22 November 2022 seeking judicial review of the Tribunal decision (judicial review application).
The judicial review application contains the following grounds (reproduced without alteration):
1.I want to appeal the decision of the Tribunal in 187 visa to the Federal Court as there is Jurisdictional error in the decision.
2.The sponsoring business has genuine position to sponsor me.
3.I have provided all the documents in support of my application to demonstrate that there is genuine need of the worker.
4.My matter should be heard in Federal Circuit for Jurisdictional error in decision made by AAT.
Summary dismissal application
The Minister filed a response to the judicial review application seeking an order that the judicial review application be summarily dismissed pursuant to r 13.13 of the GFL Rules (summary dismissal application).
The matter was listed before a Registrar of this Court for the hearing of the summary dismissal application on 4 June 2024. At the conclusion of the hearing, the Registrar made orders summarily dismissing the applicants’ judicial review application pursuant to r 13.13(a) of the GFL Rules. The Registrar delivered ex tempore reasons for his decision, which were subsequently published in writing: Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 507 (Gill).
Registrar review application
The applicants filed an application for review of the Registrar’s summary dismissal decision on 28 June 2024 (Registrar review application).
As explained below, the Registrar review application was filed out of the prescribed time limit, which required the application to be filed by 11 June 2024. The applicants made an oral application at the hearing for an extension of time to bring the Registrar review application.
HEARING BEFORE THE COURT AND RELEVANT DOCUMENTS
The Registrar review application was listed before the Court for hearing on 17 July 2024. The first applicant and the second applicant both appeared at the hearing and gave evidence in relation to the extension of time application.
The documents before the Court that are relevant to the application before it comprise:
(a)the judicial review application filed by the applicants on 22 November 2022;
(b)the affidavit of the first applicant filed on 22 November 2022, in which the first applicant repeats the grounds of application and annexes a copy of the Tribunal decision;
(c)the Minister’s response filed on 20 December 2022;
(d)the court book filed on behalf of the Minister on 6 April 2023;
(e)the Minister’s submissions filed on 21 May 2024 in relation to the summary dismissal application;
(f)the Registrar’s reasons for decision and the Order made on 4 June 2024;
(g)the application for review of the Registrar’s decision filed by the applicants on 28 June 2024;
(h)the affidavit of the first applicant filed on 28 June 2028, annexing a copy of the Registrar’s reasons in Gill; and
(i)the Minister’s submissions filed on 12 July 2024 in relation the Registrar review application.
The first applicant and the second applicant were invited to give oral evidence in relation to the reasons they were late in filing their Registrar review application. Both gave evidence to the effect that they were not aware that the relevant time limit within which to file the application was seven days and, had they known this, they would have filed the application within time.
LEGISLATION AND PRINCIPLES
Registrar review application
In deciding to summarily dismiss the applicants’ 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 provides that the Registrar review application must be made within seven 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 the 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 Registrar 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 (Hunter Valley Developments) at 348-349; Poonia v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 395 at [23]; Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 479 at [40].
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 Registrar review application. The consideration of the Registrar 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
Both parties made oral submissions in relation to the extension of time application, albeit the applicants’ submissions were largely limited to their explanation for the delay. The submissions of the parties are addressed below.
Length of the delay
The length of the delay in the applicants filing the Registrar review application is 17 days. This is not an excessive delay, but it is also not insignificant in the context of a prescribed period of seven days.
Explanation for the delay
As discussed above, the first applicant and the second applicant both gave evidence that they were not aware that they needed to make the Registrar review application within seven days of the date of the Registrar’s decision and, if they had known, they would have filed their application within time. In their submissions, the applicants submitted that, because of their lack of knowledge, they were not at fault. They also submitted that they need an extension of time so that, during the period in which time is extended, they can apply for another visa.
Counsel for the Minister submitted that the applicants have not provided a reasonable explanation for the delay. He submitted that it was the responsibility of the applicants to be aware of the relevant time limits, citing SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 (SZSDA) at [38].
Counsel for the Minister submitted that the length of the delay and the lack of a reasonable explanation for the delay weigh heavily against the grant of an extension of time.
I agree with the Minister’s submission that the applicants have not provided a reasonable explanation for the delay in this matter. In SZSDA, Foster J said at [38]:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
The explanation of the applicants in the present matter relates to their lack of knowledge of the relevant time limit. They gave no evidence of any steps taken to try and find out the applicable time limit, or in relation to when any such steps may have been taken. While the Court appreciates that seven days is a short time frame to file an application, particularly if one also has to take steps to ascertain the relevant time limit, it was up to the applicants to inform themselves of the relevant time limit. Their lack of knowledge of the time limit does not, without more, amount to an adequate explanation for the delay. To the extent that the applicants’ submission that they need more time to apply for another visa relates to this extension of time application, it does not amount to a reasonable explanation for the delay. To the contrary, making the Registrar review application to try and seek more time to make a new application for a visa would appear to be using the litigation for an improper purpose.
The applicants have not provided a reasonable explanation for the delay in filing the Registrar review application. I give this some weight against the grant of an extension of time but, given the relatively short time frame involved, I do not find that this weighs heavily against the grant of an extension of time, as submitted by the Minister.
Prejudice to the Minister
The applicants made no submissions in relation to whether there would be any prejudice to the Minister if the extension of time is granted.
I accept the Minister’s submission that there is no specific prejudice to the Minister as a result of the delay, but the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349. I also accept the Minister’s submission that there is a public interest in the finality of litigation and administrative decision-making.
In considering whether to grant the extension of time, I treat the question of prejudice as a neutral consideration.
Merits of the underlying application
The application underlying the extension of time application is the Registrar review application, which in turn directs attention to the summary dismissal application. The outcome of the summary dismissal application turns on whether the applicants have any reasonable prospects of success in relation to 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 applicants made no submissions about the merits of the judicial review application (or the Registrar review application or the summary dismissal application).
The Minister submitted that the judicial review application has no reasonable prospects of success. The Minister submitted that the four grounds in the application are bare assertions of error which are not sufficiently particularised to be meaningful and could be dismissed on this basis.
The Minister further submitted that there was evidence before the Tribunal that the sponsor’s nomination had been refused and that the sponsor withdrew their application for review to the Tribunal. The first applicant was therefore not the subject of an approved nomination and could not meet cl 187.233 in Sch 2 to the Regulations. In these circumstances, the only decision open to the Tribunal was to affirm the delegate’s decision. The Minister submitted that the Tribunal applied the mandatory considerations as set out in the Regulations for the grant of the visa and considered the evidence before it, including two letters submitted in response to an invitation issued under s 359A of the Migration Act 1958 (Cth) (Migration Act).
The Minister also submitted that it is well-established that cl 187.233 cannot be satisfied by a later nomination of the position made by different employer or a later nomination in respect of the same position made by the same employer. Even if the first applicant’s new employer expressed interest in sponsoring her, the criteria could not be met.
The Minister submitted that, in those circumstances, even if the Court were to extend the time to file the Registrar review application, on a de novo review, the Minister would still be successful in arguing that the judicial review application has no reasonable prospects of success. The Minister also submitted that even if the matter proceeded to hearing, granting relief would be futile because the first applicant was not at the time of the Tribunal decision, and is not now, the subject of an approved nomination.
In considering the grounds advanced by the applicants and the Tribunal reasons more generally, at a reasonably impressionistic level, I find that the applicants do not have any reasonable prospects of success in relation to their judicial review application. The grounds advanced by the applicants do not clearly allege any specific jurisdictional error in the Tribunal reasons. Grounds 1 and 4 contain general assertions of jurisdictional error, without identifying the nature of the alleged jurisdictional error. Ground 2 is an assertion of fact that the sponsoring business has a genuine position to sponsor the first applicant and ground 3 is an assertion that the first applicant provided all documents in support of her application to demonstrate that there was a genuine need for the worker. While I would not dismiss the grounds based on the failure to provide proper particulars, I am not satisfied that there is any reasonable chance that those grounds are capable of establishing jurisdictional error in the Tribunal decision.
In assessing these grounds, it is important to recall that the Tribunal considered whether the first applicant met the criterion in cl 187.233, which at the time the applicants applied for the visas provided:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The Registrar treated the applicants’ assertion in ground 2 that the ‘sponsoring business has genuine position to sponsor me’ as a reference to evidence that the first applicant gave at the hearing before the Tribunal about the willingness of a new company to sponsor her. I am satisfied that this is the appropriate interpretation of this ground, particularly in the absence of any submissions to the contrary. This cannot establish jurisdictional error in the Tribunal decision because, as submitted by the Minister, cl 187.233 cannot be satisfied by a later nomination of the position made by a different employer. This can be seen from the Full Court’s decision in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 where Mortimer J (as her Honour then was) said at [88] (Jagot and Bromberg JJ concurring at [1] and [2] respectively):
The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
Accordingly, the willingness of the first applicant’s new employer to sponsor her, or the genuineness of the position the first applicant held with her new employer, were not matters that were relevant to the Tribunal’s consideration of whether she met the criterion in cl 187.233 and are not matters that can establish jurisdictional error in the Tribunal decision.
The matters raised by ground 3, namely that the applicants provided all documents in support of their application to demonstrate that there was a genuine need for the worker, are also matters that cannot establish jurisdictional error in the Tribunal decision. Whether the sponsor or a subsequent employer has a genuine need for an applicant to form part of their workforce was not something that needed to be considered by the Tribunal in the present case, in circumstances where the Tribunal found there was no approved nomination in place. I accept the Minister’s submission that in circumstances where the evidence before the Tribunal showed that the sponsor’s nomination had been refused, and the sponsor withdrew their application for review to the Tribunal, the first applicant was not the subject of an approved nomination and could not meet the requirements of cl 187.233. I further accept the Minister’s submission that, in these circumstances, the only decision open to the Tribunal was to affirm the delegate’s decision.
I have considered the general assertion of jurisdictional error in grounds 1 and 4. On a review of the material before the Court at a reasonably impressionistic level, I have not identified anything that would demonstrate the applicants have any reasonable prospects of establishing jurisdictional error in the Tribunal decision. There is nothing in the court book to suggest that the Tribunal failed to comply with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act. I note in particular that the Tribunal invited the applicants to attend a hearing to give evidence and present arguments in relation to the issues arising in the review, as required by s 360 of the Migration Act, and that the Tribunal complied with the requirements of s 359A of the Migration Act in inviting the applicants to comment on information which would be the reason, or part of the reason, for affirming the decision under review. The Tribunal considered the evidence given by the applicants that was relevant to the issues for its consideration. As indicated above, I otherwise accept the Minister’s submission that in the circumstances of this case the Tribunal made the only decision that was open to it.
The applicants’ judicial review application has no reasonable prospects of success. It follows that, if I were to grant the extension of time and conduct a de novo review of the Registrar’s decision in relation to the application for summary dismissal, there is no realistic possibility that the applicants would be successful in that application. The merits of the application underlying the extension of time application are therefore weak and this weighs heavily against the grant of an extension of time.
Conclusion on the extension of time application
Taking into account the length of the delay of 17 days, that there is not an adequate explanation for the delay, the absence of any specific prejudice to the Minister and the weak merits of the underlying application, I have decided to refuse to grant the extension of time. In so doing, I place significant weight on the weak merits of the underlying application.
CONCLUSION
Given that I have decided not to grant the applicants an extension of time to file the Registrar review application, it follows that the extension of time application is dismissed and I am unable to separately consider the Registrar review application.
At the hearing, both parties made submissions in relation to costs. The Minister indicated that, if successful in the application before the Court, he sought an order that the first applicant and the second applicant pay the Minister’s costs of the application in the amount of $1,200, which was a conservative estimate for the costs of drafting submissions, appearing in Court and receiving judgment. The applicants requested that this amount be reduced.
I am satisfied it is appropriate that costs follow the event in relation to this matter and that the first applicant and the second applicant pay the Minister’s legal costs. I am satisfied that the amount sought by the Minister is reasonable and appropriate taking into account the work required to file submissions, prepare for and appear at the hearing and to receive judgment. I therefore order that the first applicant and the second applicant are to pay the Minister’s legal costs in the amount of $1,200.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 July 2024
0
7
4