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…
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Details
- AGLC
- Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 514
- Case
- [2025] FedCFamC2G 514
- Decision Date
CaseChat Overview and Summary
Kaur, a citizen of India, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to dismiss her application for review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs, who had refused her application for a visa. Kaur's visa application was based on her employment as a hairdresser with Massan Pty Ltd, but the employer's nomination application was refused, and the applicant was unable to satisfy the mandatory criterion for a visa under cl 187.233 of the Migration Regulations 1958 (Cth). The primary legal issues before the court were whether the AAT failed to act fairly and justly, whether the AAT's decision was illogical, irrational, or unreasonable, and whether the AAT member failed to appropriately consider the matters before it or place the appropriate weight on matters that were outside of Kaur's control.
The court found that there was no reasonable prospect of success of the judicial review application, and that the application had been made out of time. The court noted that the applicant had failed to respond to a request for information from the Department, and that the Tribunal had correctly deferred its decision pending the outcome of a skills assessment, which the applicant had undertaken. The court further found that the AAT had properly considered the matters before it and that the Tribunal's decision was not illogical, irrational, or unreasonable. The court held that the applicant had not demonstrated any error of law or procedural unfairness on the part of the Tribunal that would warrant an extension of time or a grant of the judicial review application.
The court refused the application for an extension of time to review the decision of the AAT and ordered the applicant to pay the costs of the application. The court found that the applicant had not demonstrated any grounds for the grant of an extension of time, and that the application was made out of time. The court further found that the applicant had not demonstrated any error of law or procedural unfairness on the part of the AAT that would warrant the grant of the judicial review application. The court held that the Tribunal had properly considered the matters before it and that the decision was not illogical, irrational, or unreasonable. The court ordered the applicant to pay the costs of the application.
The court found that there was no reasonable prospect of success of the judicial review application, and that the application had been made out of time. The court noted that the applicant had failed to respond to a request for information from the Department, and that the Tribunal had correctly deferred its decision pending the outcome of a skills assessment, which the applicant had undertaken. The court further found that the AAT had properly considered the matters before it and that the Tribunal's decision was not illogical, irrational, or unreasonable. The court held that the applicant had not demonstrated any error of law or procedural unfairness on the part of the Tribunal that would warrant an extension of time or a grant of the judicial review application.
The court refused the application for an extension of time to review the decision of the AAT and ordered the applicant to pay the costs of the application. The court found that the applicant had not demonstrated any grounds for the grant of an extension of time, and that the application was made out of time. The court further found that the applicant had not demonstrated any error of law or procedural unfairness on the part of the AAT that would warrant the grant of the judicial review application. The court held that the Tribunal had properly considered the matters before it and that the decision was not illogical, irrational, or unreasonable. The court ordered the applicant to pay the costs of the application.
Orders
Orders of the court
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Background
Background to the litigation
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).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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