Kaur v Minister for Immigration
[2017] FCCA 1962
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1962 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – consideration of factors relevant to an extension of time – whether there is an adequate explanation for the delay – whether there are reasonable prospects of success – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.351, 360, 476, 477 Migration Regulations 1994 (Cth), sch.2, cl.457.223 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALR 211 |
| First Applicant: | RAJINDER KAUR |
| Second Applicant: | GURKIRAT KAUR |
| Third Applicant: | KULVIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1965 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 17 May 2017, 22 June 2017 and 1 August 2017 |
| Date of Last Submission: | 1 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Hart |
| Solicitors for the Respondents: | Ms G Doyle of Sparke Helmore Lawyers |
ORDERS
The application for an extension of time made on 25 July 2016 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The first applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1965 of 2016
| RAJINDER KAUR |
First Applicant
GURKIRAT KAUR
Second Applicant
| KULVIR SINGH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 25 July 2016, seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 11 May 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse temporary business entry (Class UC) visas to the applicants.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The applicants’ Ministerial intervention request and the response to that request (“AE1”).
c)The affidavit of the first applicant, Ms Rajinder Kaur, made on 25 July 2016 ([10], the first sentence of [14], and [20] not read. (Not pressed)).
d)The affidavit of the first applicant, Ms Rajinder Kaur, made on 10 July 2017 (the final sentence of [7] not read. Objection from the Minister on the basis hearsay).
e)The affidavit of Ms Sally Lee, Solicitor, made on 10 July 2017 ([8] – [10] not read. Objection from the Minister on the basis of hearsay).
Background
The relevant background to this matter is that Ms Kaur (“the first applicant”) applied for the visa on 5 December 2014, relying on a sponsorship by Michael & Eva Pty Ltd ATF Vivien’s Family Trust (“the sponsor”). The second and third applicants before the Court (Ms Kaur’s child and husband) applied as members of Ms Kaur’s family unit.
The visa for which Ms Kaur had applied, amongst other criteria, required her to satisfy cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), which was, at the relevant time, in the following terms:
“457.223
…
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75.”
There is no dispute that on 17 February 2015, a relevant Ministerial delegate refused the application for nomination made by the sponsor, who was Ms Kaur’s primary prospective employer.
In relation to the applicants currently before the Court, the delegate found that the Ms Kaur was not the subject of an approved nomination as required by cl.457.223(4)(a) of Schedule 2 to the Regulations. Ms Kaur was refused the visa, and the second and third applicants were therefore refused visas as not being the members of the family unit of a person who held such a visa (CB 93 to CB 102).
The applicants applied to the Tribunal for review of the delegate’s decision. On 13 July 2015, the Tribunal decided that it did not have jurisdiction to consider the review (CB 105 to CB 107).
Ms Kaur subsequently made an application to this Court, seeking judicial review of the Tribunal’s decision. On 27 January 2016, the Court made orders by consent, quashing the Tribunal’s decision and remitting the application for review to the Tribunal for reconsideration (CB 124 to CB 125).
Ms Kaur and her husband appeared at the hearing before the (reconstituted) Tribunal on 11 May 2016 (CB 197 and see [6] at CB 207). The Tribunal gave its decision orally on that date. Subsequently, the Tribunal produced written reasons (CB 206).
The Tribunal found that Ms Kaur did not meet the requirements of cl.457.223(4) of Schedule 2 to the Regulations. The Tribunal found that cl.457.223(4)(a) required an approved nomination for an occupation relating to Ms Kaur by a “standard business sponsor”. That is, the sponsor as already identified (see [3] above, and
[10] at CB 207 to [15] at CB 208).
The Tribunal noted the following regarding Ms Kaur’s evidence to it ([12] at CB 208):
“At the hearing of the remitted matter number 1601147 held on 11 March 2016, the applicant’s oral evidence is that at no stage since lodging the application for the visas has she held an approved nomination with the sponsor.”
Further, the Tribunal accepted Ms Kaur’s evidence as follows ([14] at CB 208):
“The Tribunal accepts the applicant’s evidence that no nomination of an occupation in relation to her has been approved at any stage with the sponsor.”
The second and third applicants were found not to satisfy the criteria as members of the family unit of a person who satisfied the primary criteria for the grant of the visa ([21] - [22] at CB 209).
Section 477(1) of the Act requires that any such application made pursuant to s.476 of the Act, be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application was filed with the Court’s Registry some 40 days after the expiry of that time limit. The application is therefore not competent.
Section 477(2) of the Act provides for an extension of time within which to make a competent application to the Court if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide direction and guidance to this Court as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).
The particular factors in the current case arising from the circumstances presented in considering the exercise of the discretion to extend time appear to be, the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, and primarily, whether the proposed substantive application for judicial review is sufficiently or reasonably arguable, or has reasonable prospects of success or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. Ordinarily, in deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility (however, see further below at [40]).
The grounds of the application to extend time are in the following terms:
“1. I have been advised by my migration agent at the time,
R E Glazbrok, to put an application for Ministerial Intervention against the outcome of (11 May 2016) AAT decision. I was represented by the migration agent Mr Glazbrook in my application for Ministerial Intervention on 25th May 2016.
2. The outcome of Ministerial Intervention application was produced on 7 June 2016, not in favour.
3. Due to the application for Ministerial Intervention process as outlined in 1. and 2., I have missed my timeframe to prepare an application to Federal Circuit Court to pursue jurisdictional justice in my case.
4. It should be noted that my case had already been appealed to FCC once before, once my lawyer had sent a letter to AAT outlining their erroneous decision which was against a judicial precedent, AAT had admitted their mistake and agreed to a consent order to quash their decision and reconsider my application for review.
5. As outlined in number 4, AAT had only corrected their error when presented at FCC. In order to reach jurisdictional justice on my case, my case must be presented at the FCC once more.
6. Having suffered from AAT’s error outlined in the affidavit, I was disadvantaged in preparing an application to the Federal Court.
a. I was disadvantaged financially, burdened by the legal costs involved in applications and hiring legal representation, due to unnecessary complication of my visa application and visa status from DIBP and AAT’s errors in making their decisions. The work limitation and work ban from complication of my visa status became the major problem in my financial disadvantage.
b. I was disadvantaged from lack of legal knowledge required to pursue fair jurisdictional outcome, as my options to extend my stay and pursue my case against DIBP and AAT had been deprived unjustly.
7. My grounds of application to the Federal Circuit Court are outlined in the included affidavit, and my reason for not presenting the case in due timeframe of 35 days is outlined in this application for extension of time, from number 1 to number 3.
8. I strongly feel my case has been treated unjustly by DIBP and AAT, and it should be addressed at Federal Circuit Court in order to obtain a just decision. AAT had once already acknowledged their erroneous decision by consent when my case was appealed to FCC. However, AAT had failed to meet jurisdictionally fair outcome on their second decision again.
9. In the light of the information provided above, I respectfully submit that extension of time for my case should be granted.”
[Errors in original.]
The Minister opposes the extension of time on the following bases. The extent of the delay is not insignificant, the applicants have not provided a satisfactory explanation for the delay, and of greater weight, the grounds of the proposed substantive application lack merit such as to call for the extension of time in the interests of the administration of justice.
It is important to note the following. The parties appeared before a Registrar of the Court on 6 October 2016, when various orders were made for the progress of the matter before the Court. The matter was then set down for the hearing of the extension of time application on 17 May 2017. On that occasion, Ms Kaur and her husband appeared in person and sought an adjournment on the basis that she had thought that she had been able to obtain legal representation, but had only recently been advised that that representation was no longer available to her (Ms Kaur stated that her representative had returned the brief the night before the scheduled hearing).
The applicants were granted an adjournment until 22 June 2017. On that day, a solicitor appeared for the applicants. A further adjournment was sought on the basis that the solicitor had only recently received instructions in the matter and needed time to prepare for the hearing of the application to extend time. The Court again granted an adjournment. The matter was then set down for hearing of the extension of time application on 1 August 2017. On that date, the applicants were represented by counsel. The Minister was represented by a solicitor.
The grounds of the application to extend time, and when read with Ms Kaur’s affidavit of 25 July 2016, advance a number of reasons in explanation for the delay. Ms Kaur was cross-examined on her affidavit. I will return to that below.
First, the applicants had, through their then migration agent, sought intervention by the Minister, presumably pursuant to s.351 of the Act. This request was made on 25 May 2016 (see AE1). The grounds of the application to extend time assert that this request was not finalised until 7 June 2016 (and see AE1).
As set out above, the Tribunal’s decision was made on 11 May 2016. The time within which the applicants could make a competent application to the Court ceased on 15 June 2016.
The applicants have not now explained why, on being told of the unsuccessful application on 7 June 2016, they took no steps to make their application to the Court within the time still available to them (and see further below).
In the grounds of the application to extend time, and in Ms Kaur’s affidavit of 25 July 2016, the applicants also set out that they had already successfully appealed the Tribunal’s first decision in this Court (and see [7] – [8] above).
That is, the applicants had already made an application to this Court pursuant to s.476 of the Act within time, seeking review of a previous Tribunal decision.
In her evidence before the Court, Ms Kaur advanced the following reasons for the delay of over 40 days in coming to the Court. First, that she relied on her former migration agent’s advice, which in effect, was to proceed with Ministerial intervention. Before the Court, Ms Kaur’s counsel advanced submissions that she relied on the advice given by her migration agent, and that the first applicant was a lay person who had no knowledge about Australian law. In particular, that the first applicant did not know of the 35 day time limit.
When pressed to provide the evidentiary basis for these submissions, counsel referred to [5] of Ms Kaur’s affidavit of 10 July 2017, and submitted that the Court should draw a “reasonable inference” that Ms Kaur had a lack of knowledge about how to proceed in light of the adverse Tribunal decision. Further, that Ms Kaur was not in a position to make an informed decision, as she had a lack of knowledge of the 35 day limit.
The relevant paragraph is in the following terms ([5] of the affidavit of Ms Kaur of 10 July 2017):
“I do not recall ever receiving advice from Mr Glazbrook to make an application to review the AAT decision to this Court.”
Plainly there is no reference to the 35 day time limit in Ms Kaur’s affidavit. It may be that she did not receive any advice from “Mr Glazbrook” to make an application to this Court to review the decision of the Tribunal. However, the difficulty for the applicants arises from the fact that, and as is set out in the grounds of the application to extend time, and indeed in Ms Kaur’s affidavit of 25 July 2016, the applicants had already successfully appealed the earlier Tribunal decision in this Court.
That is, Ms Kaur had already made an application to this Court pursuant to s.476 of the Act within time, seeking review of a Tribunal decision. I find therefore that Ms Kaur (and by reasonable inference, her husband) did, at least from the time of the making of the earlier application to the Court, know of the option of coming to this Court to seek review of the Tribunal’s decision, including the decision of 11 May 2016.
The Minister submits that the applicants’ pursuit of Ministerial intervention is not a sufficient reason for the delay (Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALR 211 at [29]).
Reference to some authorities would suggest that seeking Ministerial intervention is not, of itself, a satisfactory explanation for the delay (MZZVK v Minister for Immigration and Border Protection [2016] FCA 854 at [46], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 820). Other authorities however, allow for the possibility that it may, in certain circumstances, be a satisfactory explanation for the delay (SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634
at [58] – [72] per Barnes FM (as she then was) and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM (as she then was)).
Even accepting that the applicants followed the advice of their then migration agent to seek Ministerial intervention, that request to the Minister was made on 25 May 2016. The grounds of the application to extend time made to the Court, assert that this request was finalised on 7 June 2016.
As set out above, the Tribunal’s decision was made on 11 May 2016. The time for making a competent application to the Court ceased on 15 June 2016. The applicants have not now satisfactorily explained why, on being told of the unsuccessful application for Ministerial intervention on 7 June 2016, they took no steps to make the application to this Court within the time still available to them. Importantly, this is also in circumstances where Ms Kaur had previously made an earlier application to this Court pursuant to s.476 of the Act. Nor, importantly, have the applicants provided any satisfactory explanation for the further five week delay in making their application to the Court.
In her affidavit of 25 July 2016, Ms Kaur gives an extensive account of events prior to the making of the Tribunal decision which is the subject of the application to extend time now before the Court. She asserts that, amongst other things, the applicants were put at a “disadvantage” because of the Tribunal’s conduct in making the earlier decision concerning its jurisdiction ([19] of the affidavit of Ms Kaur of 25 July 2016). However, this says nothing about the delay in coming to this Court in relation to the Tribunal’s “second” decision. If anything, that claimed “disadvantage”, and the fact of the earlier decision, should have acted as a spur to make the current application as soon as possible.
In all, I do not accept that the applicants, as asserted in their submissions, had no relevant knowledge about coming to this Court to make an application for review of a Tribunal decision. Nor do I accept that Ms Kaur did not know of the 35 day time limit. That is because the evidence before the Court does not allow for such an inference to be drawn in circumstances where Ms Kaur had already participated in making an application to this Court. In all, there is no satisfactory or reasonable explanation for the applicants’ delay in making an application to the Court.
Before the Court, the applicants’ counsel stated that the applicants submitted that there was no jurisdictional error in the Tribunal’s decision. The applicants’ submission was that they relied on what they said was a satisfactory explanation for the delay in coming to Court, and that the Minister would suffer no prejudice if time were to be extended (I note that the Minister did not press any prejudice).
It must be said that it is difficult to see, having reached that conclusion, what the applicants hoped to achieve if the Court were to extend time, and the proposed substantive application were to go to a final hearing. The applicants appear not to have understood the statutory intention of s.477 of the Act. It is clear in my view, that Parliament has sought to confirm that Tribunal decisions are subject to judicial review in this Court (subject to the limitation that a decision not be a “primary decision”). Parliament has also sought to impose a statutory time limit on the making of such applications to this Court.
However, it is recognised, through the provision of s.477(2) of the Act, that the Court has discretion to extend the time in which to make a competent application to the Court in limited circumstances, where it is in the interests of the administration of justice to do so. As set out above, there is a non-exhaustive range of elements, or factors, relevant to the exercise of the Court’s discretion in this regard.
The absence of any proposed arguable legal error on the part of the Tribunal is a relevant and weighty, if not overwhelming consideration, arguing against the exercise of the discretion to extend time. The applicants appear to have overlooked the circumstance that it is not in the interests of the administration of justice to extend time merely to dismiss a substantive application which the applicants say, not only does not have any arguable legal error, but is in fact free of jurisdictional error.
In the current case, and as set out above, the applicants have not provided a satisfactory explanation for the delay in seeking judicial review of the Tribunal’s decision. But even if the applicants had provided a satisfactory explanation for the delay, it would not be in the interests of the administration of justice simply to extend time to dismiss the proposed substantive application at a final hearing.
It is, in my view, at least implicit (if not explicit), in the statutory scheme, that one of the purposes of s.477(2) of the Act is to allow a triable issue or an arguable legal issue, to be heard, because it is in the interests of the administration of justice to do so. In the absence of any such issue, it is difficult to see what purpose would be served in extending time, even if the applicants had provided a satisfactory explanation for the delay in coming to the Court.
It must be said that the absence of jurisdictional error in the Tribunal’s decision, for current purposes at least, or the absence of a legally arguable issue arising from the Tribunal’s decision, would have been known to the applicants’ legal representatives at least from the time that the applicants obtained legal representation on 22 June 2017.
It is in this context, important to note the following that would have been available to the applicants’ legal representatives for consideration. Grounds 1 to 24 of the proposed substantive application to the Court are either a statement of “past” factual matters, or an expression of grievance about the Minister’s departmental processes and the Tribunal’s processes. Further, those grounds also outline the Minister’s refusal to intervene in the applicants’ matter. Even though this does not appear to have been drafted by a legal practitioner, and on her submission at an earlier occasion before the Court, had been drafted by Ms Kaur herself, there is no assertion of jurisdictional error on the part of the Tribunal, and nor is one indicated in any of these grounds.
On their face, grounds 25 to 31 of the proposed substantive application to the Court seek to assert a breach of the Tribunal’s procedural fairness obligations.
The Tribunal’s obligation to invite an applicant to a hearing arises from s.360 of the Act. The obligation on the Tribunal is to provide a meaningful opportunity for the applicants to give evidence and present arguments in relation to the issues in the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494). There is no assertion in the grounds of the proposed substantive application, nor does any indication of any such assertion, or possibility of an assertion, arise from the material before the Court, that the Tribunal breached its obligation pursuant to s.360 of the Act.
For the remainder of the grounds, the complaint appears to be about factual findings made by the Tribunal. To be granted the visa, Ms Kaur needed to have satisfied the requirement of being nominated for an occupation by a sponsor who had been approved for that purpose.
On her own evidence, no such approved nominating sponsor existed at the time of the Tribunal’s decision. No arguable case is raised in circumstances where the Tribunal was obliged to apply the regulatory requirements. Nor can I see, based on Ms Kaur’s own evidence to the Tribunal, that it can be said that the Tribunal was in error in this central factual finding.
In relation to the claim of a failure of procedural fairness, no such failure can be said to arise in circumstances, as here, where the Tribunal applied the relevant regulatory requirements.
The applicants were plainly aggrieved with the Tribunal’s earlier decision that it did not have jurisdiction to consider their case. The continuation of that grievance now, in the circumstances, does not raise a legally arguable case in relation to the Tribunal decision that the applicants now seek to put before this Court, such that the extension of time should be granted.
In all, the applicants have not provided any satisfactory explanation for the delay in making an application for review to this Court. Further, in the absence of any arguable case in relation to the Tribunal’s decision, the extension of time should be refused. I will make the appropriate order.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 18 August 2017
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