Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 514
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 514
File number: MLG 1266 of 2023 Judgment of: JUDGE SYMONS Date of judgment: 11 April 2025 Catchwords: MIGRATION – application for review of decision made by Judicial Registrar to summarily dismiss judicial review application – where Tribunal found that applicant unable to satisfy mandatory criterion for grant of visa – where application for review made out of time – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 143, 254, 256
Migration Act 1958 (Cth), ss 57, 359A
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 1958 (Cth), Sch 2, Cl 187.233
Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Saini & Anor v Minister for Immigration & Anor [2020] FCCA 227
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 10 April 2025 Date of hearing: 10 April 2025 Place: Melbourne Solicitor for the Applicant: The applicant represented herself Solicitor advocate for the First Respondent: Mr Gardner, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1266 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The application for an extension of time to seek review of a decision of a Registrar made on 19 February 2025 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $1,000.
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 SYMONS:
INTRODUCTION
By way of application lodged on 14 March 2025 and accepted for filing on 18 March 2025, the applicant seeks review of a decision made by a Judicial Registrar of this Court, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). On 19 February 2025, Judicial Registrar Cummins summarily dismissed the applicant’s substantive application which sought judicial review of a decision made by the second respondent (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (visa).
The application for review was filed outside of the prescribed seven-day timeframe provided by r 21.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules). As a result, the applicant requires an extension of time to prosecute her review application. While the applicant does not acknowledge the necessity for an extension of time in her application document or supporting affidavit, I have proceeded on the basis that an application for an extension of time has been made informally this afternoon.
For the reasons below, I have decided not to grant the applicant an extension of time to review the Judicial Registrar’s decision.
BACKGROUND
The applicant is a female citizen of India. On 8 November 2016, she and her husband applied for the visa on the basis of the applicant’s employment in the nominated position of hairdresser with Massan Pty Ltd (employer). The applicant appointed a migration agent as her authorised recipient and representative.
On 7 August 2019, the Department invited the applicant, pursuant to s 57 of the Migration Act 1958 (Cth) (Act), to comment on the refusal of the employer’s nomination application. Neither the applicant nor her representative provided a response.
Instead, on 20 September 2019, the applicant’s representative notified the Department that the husband had withdrawn his application for the visa. The Department acknowledged the withdrawal of the husband’s application on 24 September 2019.
On 30 September 2019, a delegate of the Minister refused to grant the applicant the visa. The application was refused because the applicant was not the subject of an approved employer nomination and was therefore unable to satisfy cl 187.233 of Schedule 2 to the Migration Regulations 1958 (Cth) (Regulations).
On 19 October 2019, the applicant lodged an application to the Tribunal for review of the delegate’s decision with the continued assistance of her representative.
On 3 May 2023, the Tribunal invited the applicant to attend a hearing via Microsoft Teams, scheduled for 1 June 2023.
On 18 May 2023, the Tribunal sent the applicant an invitation to comment pursuant to s 359A(1) of the Act. The information about which comment was sought was that a differently constituted Tribunal had affirmed the refusal of the nomination application, which indicated that the nomination relied upon for the visa application had not been approved. The applicant was invited to comment on this information at the hearing on 1 June 2023.
On 1 June 2023 the applicant attended the hearing with the assistance of her representative. During the hearing, the applicant provided information directed at the s 359A(1) invitation.
Following the hearing on 1 June 2023, the applicant provided the Tribunal with a submission which requested the Tribunal defer its assessment of the visa application until VETASSES had completed its skills assessment of the applicant’s role as a chef. The applicant provided an acknowledgement of receipt of the skills assessment lodged on 27 January 2023 and a letter from her representative indicating that her application was in progress and the approximate processing time was between 12 and 20 weeks.
On 2 June 2023, the Tribunal wrote to the applicant confirming that it had agreed to defer making a decision to 26 June 2023. The applicant did not provide any further information to the Tribunal during this interval.
THE DECISION OF THE TRIBUNAL
On 26 June 2023, the Tribunal decided to affirm the decision of the delegate not to grant the applicant the visa and prepared a set of reasons (R).
The Tribunal identified the issue in the case as whether the position to which the application related was the subject of an approved nomination (R, [9]).
The Tribunal identified the requirements of cl 187.233 and recorded the steps taken by the Tribunal pursuant to s 359A of the Act to invite comment from the applicant on the refusal of the nomination application and the steps taken at hearing to explain the significance of this information to the applicant (R, [10]-[13]).
The Tribunal noted that by way of response to the information, the applicant had stated that: she understood the requirements of cl 187.233; after the nomination was refused, the nominator closed the business; the applicant then found work as a chef in an Italian restaurant where she had been working for more than three years and had applied for a skills assessment. The Tribunal noted that the applicant had asked it to defer its decision until after the assessment had been received (R, [14]).
The Tribunal referred to the correspondence sent to it on 1 June 2023 and its decision to defer any decision until 26 June 2023 (R, [15]).
The Tribunal noted that on 7 September 2019, the Department had refused the nomination of position to which the applicant’s visa application related, and that the Tribunal had affirmed the delegate’s decision on review on 19 September 2022. As the relevant nomination had been refused, the Tribunal was bound to find that the position to which the application related was not the subject of an approved nomination and therefore cl 187.233 was not met (R, [16]).
PROCEEDINGS IN THIS COURT
On 17 July 2023, the applicant filed an application under s 476 of the Act seeking judicial review of the Tribunal’s decision. The applicant raised the following grounds of application:
1. The AAT failed to act accordingly towards the merits of the case and failed to act in a way that was fair and just.
2. The decision of the Tribunal is otherwise illogical, irrational or unreasonable.
3. The AAT member failed to appropriately consider the matters before it or place the appropriate weight on matters that were outside of my control.
a. It is not my fault that the nomination lodged by Massan Pty Ltd was refused.
b. I am a highly skilled individual who has done nothing but work, contribute to the Australian community and pay my taxes.
c. I was applying for a skills assessment as a Chef, my visa application was for a chef and yet the Tribunal in its decision states that I applied for the position as a hairdresser.
d. The Tribunal Member failed to consider or ignored that fact that we are now subjected to a section 48 bar.
In a response filed on 17 August 2023, the Minister sought an order that the application be dismissed pursuant to r 13.13 of the Rules. The matter was listed before a Judicial Registrar on 19 February 2025 to hear the Minster’s application. Before the hearing, the Minister filed written submissions. The applicant did not file any further material, despite being given the opportunity to do so.
On 19 February 2025, a Judicial Registrar made orders summarily dismissing the application for judicial review pursuant to r 13.13(a) of the Rules. The applicant was also ordered to pay the Minister’s costs fixed in the sum of $4,189.38. The Judicial Registrar made this decision exercising delegate power pursuant to s 254 of the FCFCOA Act: see also item 58 in r 21.01 of the Rules.
On 14 March 2025, the applicant lodged with the Registry an application for review of the Registrar’s decision. It was accepted for filing on 18 March 2025.
The application for review was accompanied by an affidavit affirmed by the applicant on 11 March 2025. In the affidavit, the applicant records under the heading “Background of the Case” that she applied for the visa based on a nomination by her employer, that the Department refused the nomination on 7 September 2019 and the Tribunal affirmed this decision on 19 September 2019. The applicant acknowledged that this decision impacted on her visa application as the approval of the nomination was a crucial requirement under cl. 187.233. The applicant recorded that she sought review of the Judicial Registrar’s decision because there were exceptional circumstances justifying the review. I will return to the identification of these circumstances later.
LEGISLATION AND PRINCIPLES RELEVANT TO APPLICATIONS FOR REVIEW
Section 256(1) of the FCFCOA Act allows a party to a proceeding in which a delegate has exercised the powers of the Court under s 254 to apply to the Court for a review of the exercise of that power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules. The time limit prescribed by r 21.02(1) of the Rules is seven days. Rule 21.02(a) allows the Court to extend this time frame on any terms it thinks fit.
Rule 21.04 provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, I am required to conduct what is effectively a re-hearing of the Minister’s application for summary dismissal.
The review application was listed before me on 10 April 2025 on which occasion the applicant appeared in person and was assisted by an interpreter in the English and Hindi languages. The Minister was represented by solicitor advocate, Mr Gardner. The Minister continued to rely on his written submissions that were before the Judicial Registrar as well as a set of supplementary written submissions on the review filed on 9 April 2025 and an affidavit of lawyer Emma Louise Hubball affirmed on 19 February 2025 which annexed a search extract from the ASIC Registrar for the employer company, Massan Pty Ltd and an affidavit of Ms Hubball affirmed 5 February 2025 which annexed a screenshot of the Department of Home Affair’s Integrated Client Service Environment (ICSE) database that recorded various entries relating to the visa application and the employer nomination application. Both Hubball affidavits were also before the Judicial Registrar. The applicant did not file any further material beyond the review application and her supporting affidavit.
EXTENSION OF TIME APPLICATION
Relevant considerations
The principles that apply to whether the Court should 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. In deciding whether to grant an extension of time, the Court will generally have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the underlying application.
Length of delay
In this case, the Judicial Registrar’s decision was made on 19 February 2025 and the seven-day prescribed time frame to seek review of that decision ended on 26 February 2025. The applicant took steps to lodge her review application on 14 March 2025 (although it was not accepted for filing until 18 March 2025) with the result that her application for review was (at least) 16 days out of time.
A delay of 16 days is not insignificant. This is especially so in the context of a prescribed time frame for lodging a review of only seven days and a review regime that requires reviews, once filed, to be listed for hearing as soon as possible and unless it is impracticable to do so, within 14 days after the date of filing: r 21.03(2) of the Rules.
Explanation for the delay
The applicant offered no explanation for the delay in filing her application document which I accept reflected her genuine lack of awareness that a 7-day time limit attached to applications of this kind. I accept the applicant’s evidence that she understood (incorrectly) that she had 21 days in which to make the application.
Prejudice
The Minister has not claimed any prejudice as a result of the delay, and I do not consider that the Minister would face any prejudice as a result of the delay in filing the application for review. However, I accept that there is a public interest in the finality of litigation and administrative decision-making that is poorly served when applications for review are made outside of legislated time-frames. Equally, the absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits: whether the applicant has a reasonably arguable case
The decisive consideration in this case is the merits of the underlying application. In the context of considering an extension of time to seek review of the Registrar’s decision, the underlying application is the application made by the Minister to summarily dismiss the applicant’s judicial review application. For the following reasons, the applicant does not have a reasonably arguable case to prevent summary dismissal of her judicial review application on a de novo review of the Judicial Registrar’s decision.
The Court has the power to summarily dismiss an application for judicial review if the applicant has no reasonable prospects of successfully prosecuting the application: see s 143(2)(b) of the FCFCOA Act and r 13.13(a) of the Rules. This necessarily directs attention to the applicant’s judicial review application.
It is trite that the Minister as the moving party bears the onus of persuading the Court that the applicant has no reasonable prospects of success, and that this evaluation is to occur within parameters including the recognition that the application “need not be hopeless or bound to fail for it to have no reasonable prospect of success”: s 143 of the FCFCOA Act and that the provision “will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22].
In this case, the grounds of application operate analogously with pleadings. They disclose that even on a reasonably impressionistic level, the applicant’s judicial review application has no reasonable prospects of success.
The first ground involves the assertion that the Tribunal failed to act according to the merits of the applicant’s case and failed to act in a way that was fair and just. The ground takes content from the applicant’s affidavit filed on 14 July 2023 and her affidavit filed in connection with the review application. The principal complaint is that the Tribunal did not have regard to the relevant considerations of the matter, which included that the employer nomination application was refused due to circumstances beyond the control of the applicant, the applicant was impacted by the COVID-19 pandemic and that the applicant has made genuine efforts to comply with all visa requirements and laws in Australia.
However, as the Minister submits, the circumstances identified by the applicant were not ultimately relevant to the decision of the Tribunal, which reflected the failure on the part of the applicant to have an approved nomination in place at the time of decision. The Tribunal identified the significance of the refusal of the nomination application in correspondence sent to the applicant pursuant to s 359A(1) of the Act and the applicant addressed the issue at hearing.
The second ground alleges that the Tribunal’s decision was “illogical, irrational or unreasonable”. Again, a connection is made between this ground and the circumstances identified by the applicant as being beyond her control – namely, the impact of the pandemic on hairdressing businesses which prompted the applicant to seek work as a chef. There was however nothing illogical, irrational or unreasonable about the conclusion reached by the Tribunal that the applicant was unable to satisfy the requirements of cl 187.233. Indeed, on the material before the Tribunal this was the only conclusion open to it.
The third ground is repetitive of matters raised in grounds one and two and again asserts error because the Tribunal failed to consider or place appropriate weight on matters said to be outside of the applicant’s control.
The difficulty for the applicant is that this ground (as well as those already dealt with) fails to confront the reality that the Tribunal affirmed the decision of the delegate on the narrow question of whether there was an approved employer nomination for the position of hairdresser. Although the Tribunal acknowledged the matters raised by the applicant at hearing about the circumstances in which the nomination application had been refused, it was bound to affirm the delegate’s decision in the absence of an approved nomination. This reflected the mandatory character of the nomination requirement in cl 187.233(3) which gave no discretion to the Tribunal to take account of compelling or compassionate circumstances (see Saini & Anor v Minister for Immigration & Anor [2020] FCCA 2271 at [49]).
While I have sympathy for the applicant and accept that the refusal of the nomination application reflected circumstances beyond her control, I am unable to identify merit in any of the grounds which the applicant would seek to rely on in her judicial review application. Furthermore, I accept the submission of the Minister that a futility argument would be available to him in circumstances where the applicant could never satisfy the criteria for the grant of the visa on remittal, unless the sponsor were to successfully prosecute judicial review of the refusal of its nomination application. In circumstances where the Minister has produced evidence in the Hubball affidavit that the sponsor company was deregistered in May 2021, this prospect must be characterised as remote.
Balance of extension of time factors
Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicant to seek review of the Judicial Registrar’s decision. There is no realistic prospect of the Court finding that the applicant has any reasonable prospect of defending the Minister’s summary dismissal application or of successfully prosecuting her application for judicial review.
Costs
The Minister sought costs in the sum of $1,000. The amount sought by the Minister is reasonable. The Court will make a costs order in this amount.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 11 April 2025
0
3
4