Hassan v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 959

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hassan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 959

File number(s):	BRG 249 of 2022
Judgment of:	JUDGE EGAN
Date of judgment:	26 September 2024
Catchwords:	MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly.
Legislation:	Migration Regulations 1994, cl 187.233(3)
Division:	Division 2 General Federal Law
Number of paragraphs:	12
Date of last submission/s:	25 September 2024
Date of hearing:	25 September 2024
Place:	Brisbane
Applicant:	Mr Hassan, on his own behalf
Solicitor for the Respondents:	Sparke Helmore

ORDERS

BRG 249 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NIBU HASSAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	26 SEPTEMBER 2024

IT IS ORDERED THAT:

1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The application for extension of time filed on 9 June 2022 be 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 EGAN

INTRODUCTION

1. The applicant is a citizen of India who applied for a visa in the Direct Entry Stream on 24 April 2017 in relation to a nomination to work in the position of a cook for Shivan Enterprise Pty Ltd as the sponsor.

2. On 23 January 2019, the Department asked the applicant to comment on information to the effect that the nomination application lodged by his sponsor had been refused, with the consequence that his visa application could not be approved. The applicant did not respond to such request.

3. On 7 March 2019, a delegate of the Minister refused to grant the visa, finding that the applicant did not satisfy cl. 187.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) which required that the applicant be the subject of an approved nomination.

4. On 20 March 2019, the applicant made application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the delegate.

5. On 4 May 2022, the Tribunal affirmed the decision of the delegate.

6. On 9 June 2022, the applicant filed an application for an extension of time for the review of the decision of the Tribunal. The grounds of the application for extension were as follows:

   Grounds of Application for extension of time

   1.I did not receive my refusal letter in my email, and I was under the impression that no decision has been made on my AAT appeal.

   2.I checked my visa check on vevo on 35^th day and immediately submitted my federal application.

   3.And, I still believe that I submitted my federal application on 35^th day after contacting federal court representative over the phone.

7. It is trite that a Court will not grant an application for an extension of time for the bringing of an application for review if the substantive application is without merit and futile.

8. In the present matter, it is clear that there was no approved nomination in respect of the position of cook which was the subject of the applicant’s visa application. An approved nomination was a precondition for the grant to the applicant of any visa.

9. In circumstances where the applicant has failed to satisfy the Court that an essential precondition for the grant of his visa had been fulfilled, the substantive application for review of the decision of the Tribunal was without merit and futile.

10. The evidence before the Court was that the applicant’s sponsor company was deregistered on 26 September 2022. [1]

    [1]           Annexures A1-1 and A1-2 to the Affidavit of Ms Ismailjee filed on 21 November 2023.

11. The application for review is without merit and is dismissed.

12. The Court will hear the parties as to costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       26 September 2024