Kaur v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 771
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 771
File number(s): MLG 697 of 2023 Judgment of: JUDGE FORBES Date of judgment: 27 August 2024 Catchwords: MIGRATION - review of delegated summary dismissal decision by Registrar – review application made out of time – factors for extending time in context of review application –where substantive application for judicial review has no prospect – extension of time not granted Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254, 256
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 13.06, 21.01, 21.02
Migration Regulations 1994 (Cth) cl 187.233
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Allison v Murphy [2021] FCAFC 232
DZU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 249
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 584
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 14 August 2024 Date of hearing: On the papers Place: Melbourne Applicants: In person Solicitor for the Respondents: Ms Eskerie; Sparke Helmore Lawyers ORDERS
MLG 697 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHPREET KAUR
First Applicant
GURPREET SINGH
Second Applicant
RASANJOT KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 23 July 2024 for review of the decision of Judicial Registrar Cummings made on 28 June 2024 is dismissed.
3.In addition to Order 3 of the Orders made on 28 June 2024, the First and Second Applicants pay the First Respondent’s costs fixed in the sum of $2,000.
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 FORBES
INTRODUCTION
By an application dated 23 July 2024 the applicants seek a review of a decision of Registrar Cummings of this Court made on 28 June 2024.
In the proceeding before the Registrar, the first respondent (the Minister) applied for the summary dismissal of the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). In its decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant Regional Employer Nomination (Permanent) (class RN) (Subclass 187) visas to the applicants.
The Minister sought summary dismissal of the judicial review application pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2 (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) on the basis that it had no reasonable prospect of success.
The Minister was successful in the application for reasons given ex tempore by the Registrar and subsequently published in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 584.
The applicants now seek a review of the Registrar’s decision pursuant to section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The applicants require leave of the Court to prosecute the application because it was filed 19 days outside the time allowed for such applications pursuant to r 21.02 of the FCFCOA Rules. The applicants have not expressly sought an extension of time in their review application and that irregularity alone is sufficient to render the application incompetent. However, even if they had done so, I would refuse the application for the reasons set out below.
The application for review of the Registrar’s decision will be dismissed and the applicants should pay the Minister’s costs fixed at $2,000.
BACKGROUND
Pursuant to cl 187.233(3) in Schedule 2 of the Migration Regulations 1994 (Cth) an applicant for a subclass 187 visa must be the subject of an approved employer nomination at the time of application. This is a mandatory criterion for the grant of that class of visa.
The first applicant, as the primary visa applicant, was not the subject of an approved employer nomination and therefore did not meet the criterion. An employer did lodge a nomination application on behalf of the first applicant, but the employer’s application was refused by a delegate of the Minister on 23 May 2019. The employer sponsor sought a review of that refusal decision, but the Administrative Appeals Tribunal affirmed the refusal on 17 August 2022.
It is common ground that the proposed employer sponsor ceased operations during the COVID-19 lockdowns. The primary applicant has never argued that she met the cl 187.233(3) criterion. The delegate refused to grant the primary applicant a visa because she did not meet the criterion and the Tribunal affirmed that refusal.
In the proceeding before the Tribunal the applicant accepted that the nominating sponsor had ceased operations. However, the primary applicant pressed her application for review of the delegate’s decision on the basis that she was seeking to apply for a different form of visa (a skilled work visa) and wished to lodge another application supported by a different employer. The Tribunal was also asked to defer making a decision on the review application so that the applicant could find a new sponsor to support her subclass 187 visa application.
The applicant was unsuccessful before the Tribunal because the visa criterion in cl 187.233(3) can only be satisfied by reference to the nomination that is identified in the visa application form. The binary question posed for the Tribunal’s consideration by cl 187.233(3), was simply whether the first applicant was or was not the subject of an approved nomination by the named sponsor. The Tribunal found she was not.
The applicant sought judicial review of the Tribunal’s decision and sought to rely upon 9 grounds. On the application of the Minister, the application for judicial review was summarily dismissed by the Judicial Registrar.
Application for review of Registrar’s decision
The applicant now seeks a review of the Registrar’s decision.
Pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), read together with r 21.01(1), item 58 of Table 21.1, and r 13.06 of the Rules, Judicial Registrar Cummings had the delegated power to summarily dismiss the applicants’ application for judicial review[1].
[1] See also Lin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1019 at [16]-[17] per Judge Given
Pursuant to r 21.02 of the FCFCOA Rules, an application for review of the exercise of power by a Registrar must be made within 7 days of the exercise of that power. Rule 21.03(2) of the Rules provide that the application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing. Rule 21.04 of the Rules provides that a review of the exercise of a power by a Registrar proceeds by way of a hearing de novo[2].
[2] Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ
In this case, the Judicial Registrar’s decision was made on 28 June 2024. The application for review was made on 23 July 2024, 19 days out of time. Leave is required to press an application which was filed outside the 7-day time limit.
Procedural orders
On 26 July 2024, the Court made procedural orders in relation to this matter. Relevantly, Order 1 provided that any party who elects for this matter to proceed to oral hearing was required to notify the Court of that preference by email by 4.00pm on 1 August 2024.
Order 2 of the 26 July 2024 orders provided that if no such election was made, the parties would be taken to have consented to the matter being heard and determined in Chambers.
Importantly, in relation to the extension of time, Order 3 required the applicants to file and serve written submissions, including any application for an extension of time, by 4.00pm on 2 August 2024. (emphasis added)
By 1 August 2024 neither party had notified the Court of their election to have the matter proceed to an oral hearing. As a consequence, the matter is to be determined in Chambers on the papers.
On 2 August 2024 the applicants provided a submission to my Chambers. It subsequently transpired that the applicants had not filed those submissions on the Court portal or served the submissions on the Minister’s solicitors.
On 9 August 2024, in accordance with the 26 July 2024 orders, the Minister filed written submissions. However, on reading those submissions it was apparent that they had been prepared without knowledge of the applicants’ submissions of 2 August 2024. I directed my Associate to provide the Minister with an unsealed copy of the applicant’s submissions (with attachment) and invited the Minister’s solicitors to file an amended submission, which they did on 14 August 2024.
Is the application for review of the Registrar’s decision competent?
The Minister accepts that the Court has a broad discretion under r 21.02 to extend the time for the review. The Minister also acknowledges that the Court may extend the time on any terms it thinks fit or if the parties consent.
Nonetheless, the Minister submits that where the applicants have not sought an extension of time, either in the application itself or in any other way, then the review application is liable for dismissal as incompetent[3].
[3] AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at (AHH22) at [6]; DZU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 249 (DZU21) at [22]
In the present case, the Minister submits that the application for review is incompetent. The Minister submits that there is no express request for an extension of time, nor have the applicants provided evidence which would enable the Court to consider and determine whether there is a proper basis for an extension of time to be granted. Moreover, the Minister submits that it is clear from the applicants’ written submissions that their application is not concerned with the identification of jurisdictional error but rather buying time to obtain an approved nomination for a future visa application.
There is some force in the Minister’s submission, particularly in circumstances where the applicants were put on notice by the 26 July 2024 orders that if they wish to apply for an extension of time they should do so by 2 August 2024. I agree with the Minister that the applicants did not do that and their submissions appear oblivious of the need to do so.
I accept that there is authority to support the proposition that the application could be treated as incompetent. However, I note that the applicants are self-represented and I anticipate that if this matter had proceeded to an oral hearing (rather than being determined on the papers) I would have drawn their attention to the deficiency in their application and would have been open to an oral application for an extension of time if it had been made[4].
[4] AHH22 at [12]
Indeed, the Minister has conceded that if the applicants had taken the opportunity to make an application for an extension of time, either in written submissions or at an oral hearing, the Minister would not have opposed the applicants perfecting their application to include a request for an extension of time. That said, the Minister is quite clear in pointing out that the extension of time itself would have been, and is, opposed.
In the absence of an extension of time application I accept that the application is liable for dismissal as incompetent. However, given the possibility that another court might not share that view, I think it prudent to consider whether an extension of time application would have been successful if it had been made.
Extension of time
The principles that apply to whether the Court should grant an extension of time under r 21.02 of the Rules include the well-established principles from Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The relevant considerations for the Court include:
(1)the length of the delay;
(2)whether the applicant has a reasonable explanation for the delay;
(3)any prejudice to the respondent or third parties; and
(4)the merits of the underlying application[5].
[5] See also Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [29]
Length and explanation for delay
The review application was filed 19 days out of time. The applicants have not provided an explanation for the delay or why an extension should be granted pursuant to r 21.02(2)(a) of the Rules.
Furthermore, the procedural orders made on 26 July 2024 clearly put the applicants on notice that if they wish to apply for an extension of time they should do so. This should, at the very least, have alerted the applicants to the fact that their application for review of the Registrar’s decision had been filed out of time and that some explanation should be put forward in submissions to support an extension of time. As mentioned, the written submission filed by the applicants is silent on the issue.
Prejudice
The Minister does not submit that an extension of time would cause it any prejudice. However, the absence of prejudice is not a reason in and of itself to grant an extension of time. I am inclined to treat the absence of prejudice as a neutral factor in assessing whether leave should be granted.
The merit of the underlying application
The Tribunal found that the primary applicant did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) because she was not the subject of an approved nomination. The primary applicant concedes the correctness of that critical fact. As the Minister correctly submits, the only decision open to the Tribunal was to find that the applicant did not meet the requirements of cl 187.233 and that the applicants did not have any reasonable prospect of establishing the contrary.
The applicants have been determined to demonstrate to the Tribunal and now the Court that they have obtained an approved nomination from another employer, albeit for a different category of visa. In their application the applicants seek to rely upon a letter dated 20 July 2024 which indicates that the primary applicant has been approved for a nomination for a Temporary Skill Shortage (Medium Term) (subclass 482) visa. The Minister objects to the applicants being granted leave to rely on this evidence as it was not provided by way of affidavit, but more fundamentally, on the basis that it is simply not relevant to the application for review.
At [15] of the Minister’s amended written submissions, the Minister submits:
“The applicants’ application in this respect, and purported reliance on the letter dated 20 July 2024, is more fundamentally misconceived for the following reasons. Firstly, evidence of an approved nomination that was not before the Tribunal is irrelevant to the application for judicial review, which is inherently confined to identifying legal error: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11]. Secondly, and in any event, even if the applicant did obtain a second nomination, she would be unable to meet the requirements in cl 187.233(3) because the nomination that is approved must be the one identified in the visa application: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [89]; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [141] per Raper J with Charlesworth and O’Sullivan JJ concurring at [62] and [65]. Moreover, the evidence provided by the applicants indicates the applicant has been approved for a nomination for a Temporary Skill Shortage (Medium Term) (subclass 482) visa, which is an entirely different visa to the one the subject of this application. Accordingly, there would be no point in remitting this matter because the Tribunal would be bound to again affirm the delegate’s decision.”
The reasoning in the paragraph above cannot be faulted. The substantive application considered by the Registrar and, if an extension of time was granted, by this Court, relates to the Tribunal’s finding that the applicants did not meet the criteria in cl 187.333 of the Regulations for the grant of a Regional Employer Nomination (Permanent) (class RN) (Subclass 187) visa.
The Tribunal’s decision is unimpeachable, even on the applicants’ own evidence. The evidence and submissions upon which the applicants now seek to rely are not capable of leading to a different outcome on the original visa application.
The applicants’ written submission of 2 August 2024 raises natural justice complaints about the hearing before the Judicial Registrar. The applicants allege that they were not provided “the opportunity to fully present their case before the court, which constitutes a significant procedural unfairness”. They submit that the Judicial Registrar’s decision was made without allowing them the opportunity to present arguments and evidence, which were vital for a fair and just determination of their case.
I note each of those submissions but find that it gives no additional weight to what is fundamentally a hopeless case. There are two reasons for this conclusion.
First, an application for review of a Registrar’s decision is to be heard de novo. It is not a hearing in the nature of an appeal or judicial review. If there were issues regarding procedural fairness in the hearing before the Registrar, the applicants have now been afforded an opportunity to be heard and to correct any deficiencies. They have chosen to do so by way of a written submission which I have read and considered. Those submissions did not clearly identify or particularise the substance of the applicants’ complaints.
Secondly, the alleged procedural unfairness cannot overcome the undeniable correctness of the Tribunal’s decision. The applicants concede that they did not meet the criteria for the grant of a subclass 187 visa. The Tribunal made the only decision that was open to it. Even if I was to find procedural error on the part of the Registrar (and I make clear that I do not), the decision of the Tribunal would have been affirmed.
DISPOSITION
For the reasons discussed above, I am not persuaded that there is a proper basis to grant an extension of time to seek review of the decision of Judicial Registrar Cummings made on 28 June 2024.
Accordingly, the application is incompetent as having been made outside the 7-day time limit provided by r 21.02 of the FCFCOA Rules.
The application for review filed on 23 July 2024 will be dismissed and the applicants should pay the Minister’s costs.
I note that the Minister seeks an order for costs of this proceeding fixed in the sum of $2,000. I accept that that is a lot of money, but it is less than 50% of the amount to which the Minister would be entitled if I had applied the relevant court scale. The Minister properly acknowledges that the proceeding has been dealt with by way of written submissions and has not proceeded to an oral hearing. For that reason the Minister is prepared to apply a discount to the scheduled amount.
In all the circumstances, I am satisfied that $2,000 represents a reasonable amount that the applicants should pay in respect of costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 27 August 2024
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