Kaur v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 497
•30 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 497
File number(s): SYG 1574 of 2022 Judgment of: JUDGE STREET Date of judgment: 30 May 2024 Catchwords: MIGRATION – summary dismissal -application for review dismissed Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Spencer v the Commonwealth of Australia [2010] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 30 May 2024 Place: Parramatta Solicitor for the Applicants: Self represented Solicitor for the Respondents: Mr M Vethecan of Clayton Utz ORDERS
SYG 1574 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMAN PREET KAUR
First Applicant
JASMEEN SINGH
Second Applicant
ANSHBIR SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.The Registrar’s order 1 dated 26 April 2024 summarily dismissing the proceedings pursuant to r. 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) is affirmed.
2.The first and second applicants pay the first respondent’s further costs fixed in the sum of $1,000.
3.The 28-day period for time to appeal will not run until after the applicants’ are sent the settled published oral reasons.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is an application for a constitutional writ that was filed on 31 October 2022 in respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 October 2022 affirming the delegate's decision not to grant the applicants’ a Training (Class GF) (subclass 407) (Training) Visa (“training visa”).The first applicant was the primary applicant for the visa, the second applicant was her partner, and the third applicant is her child in respect of whom there has been made, by a registrar, a litigation guardian order.
The proceedings were listed and heard by a registrar in an application for summary dismissal by the first respondent. On 26 April 2024, a Registrar summarily dismissed the applicants’ application for judicial review of the Tribunal's decision. The first applicant then filed an application for review on 13 May 2024, and the matter was listed today for hearing of the application to set aside the Registrar's orders made on 26 April 2024. At the commencement of the hearing the Court explained to the first applicant that the application engaged this Court's jurisdiction for a de novo hearing in relation to the application for summary judgment.
The Court identified the process that it would follow and explained the nature of the proceedings. The first applicant confirmed that she understood the process and explanation by the Court. The two grounds for review in the application lodged on 31 October 2022 are as follows:
Grounds of application
(1)The decision of the tribunal is affected by jurisdiction error because the tribunal failed to take in to account a relevant consideration.
(2)The tribunal failed to determine that the appellant does not meet the requirements of clause 407.214 of schedule 2 of the Migration Regulations 1994 (Cth)
The Tribunal in its reasons dated 31 October 2022 identified that there had been a hearing on 13 October 2022, and identified the first applicant as seeking a subclass 407 training visa to undertake occupational training as an accountant. The Tribunal identified that the criteria for the grant of the subclass 407 visa is set out in part 407 in schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal identified the primary criteria that it was essential that one applicant must meet. The Tribunal set out clause 407.214 of the Regulations as follows:
(5) Clause 407.214 requires that:
(a) The applicant’s sponsor has nominated a program of occupation training in relation to the applicant; and
(b) The nomination has been approved.
The Tribunal identified that the first applicant had been sponsored for the position by a particular entity, and that the sponsor's application to be a sponsor was refused on 30 November 2018. It was in those circumstances that the Tribunal identified that the applicants cannot meet the requirements of 407.214 and, accordingly, affirmed the delegate's decision refusing the applicants’ a training visa. The first applicant's affidavit filed on 31 October 2022, identified her background as a citizen of India and arriving on a student visa in 2014. The first applicant identified applying for the 407 visa and referred to the delegate's refusal, identifying that she did not satisfy the requirements of clause 407.214 of schedule 2 to the regulations.
The first applicant identified that she applied for review and made reference to complying with her visa conditions. The first applicant identified having challenges as a result of not having the approved nomination and having a child who was born in 2016. The first applicant alleges it was unfair to treat her as an international student in this way and asserts that the Tribunal had no reason to believe she did not meet the criterion, and therefore, asks for orders as sought in the application for review.
The first applicant's further affidavit dated 13 May 2024, which the Court admitted into evidence, filed in support of the application for review identified the family background and the procedural history, and asserted that she did not understand the nature of the respondent's application, and in the short time, she was not able to engage legal representation, and did not realise it was really a hearing of her application for judicial review, and wants to pursue and obtain proper legal representation.
The first applicant made reference to the Registrar not accepting a request for an adjournment to later in the year. The first applicant also alleged that the registrar had not considered her application for review and that she needs proper legal representation.
The first applicant's oral submissions repeated that she believed she needed time so that she could organise things and obtain representation. To the extent that the first applicant's reference to needing time was intended to be an application for an adjournment before this Court, no proper basis for an adjournment was identified. The first applicant is not entitled as of right to legal representation. The first applicant has had ample opportunity, if she wished to do so, to obtain legal representation and has not identified any evidence as to the steps that she has taken in that regard. The first applicant's reference to not understanding the nature of the application is inconsistent with her earlier affidavit dated 29 October 2022 that clearly identified she understood she had not met the criteria in respect of the relevant visa. The email refusal of an adjournment by the Tribunal sent on 5 October 2022 identified the written request for an adjournment and careful consideration of the same together with the apparent fact from the delegate’s decision as to want of an approved nomination are an evident and intelligible explanation for the want of an adjournment by the Tribunal. The fact of no approved nomination and no right to legal representation provide an evident and intelligible justification for refusal of an adjournment by the registrar. The affidavits otherwise invite impermissible merits review.
The Court has before it an application in which the first applicant cannot meet an essential criteria because she does not have an approved sponsor in respect of her nomination. The first applicant made reference to obtaining another sponsor, but that cannot cure the want of an approved sponsor nomination at the time of the hearing before the Tribunal. No proper basis for any adjournment was identified before this Court, and the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.
The first applicant orally made reference to her circumstances and maintained the assertion that she did not understand the reason for the refusal of the visa. As earlier identified, that alleged lack of understanding does not sit with the first applicant's first affidavit that clearly identified she did not meet the criteria of the relevant provision.
The first applicant's oral submissions were, in substance, an invitation to determine the matter on compassionate or discretionary grounds. This Court has no power to do so, nor did the Tribunal. The first applicant's oral submissions were an invitation to merits review and this Court has no power to review the merits. Nothing said by the first applicant or in her affidavits identified any arguable case of relevant error.
In relation to ground 1 of the application for review there is no relevant consideration that has been identified that the Tribunal was statutorily required to take into account and failed to do so. To the extent the first applicant's affidavits are an expansion of that ground, they do not identify any statutory requirement that the Tribunal was required to and failed to take into account. On the face of the material before the Court the Tribunal complied with its statutory obligations in relation to the conduct of the review, including inviting the applicant to attend a hearing by letter dated 26 October 2022, and the hearing, on the material before this Court, was one in which the first applicant had a real and meaningful opportunity to engage with the Tribunal, and the Tribunal gave reasons that provide an intelligible justification for the adverse finding. No arguable case of relevant error is raised by ground 1.
In relation to ground 2, the first applicant's assertion that she met the requirements of clause 407.214 of the training visa are unsustainable. There is no evidence before the Court that the sponsor of the applicants was an approved sponsor. The evidence is to the contrary. The first applicant was informed by email on 30 November 2018 that she did not have an approved nomination and the delegate’s decision repeated that the fact that the applicants did not meet the approved nomination requirement. The evidence before this Court is that there is no process on foot relating to any review in respect of that refusal to approve the sponsor. The first applicant's assertion that she meets the criteria in ground 2 is entirely without foundation and ground 2 identifies no arguable case of relevant error.
The Court has taken into account the principles in Spencer v the Commonwealth of Australia [2010] HCA 28 at [24] in relation to the caution to be exercised in respect of the power of summary dismissal and the clarity needed for exercise of the same. The Court has taken into account section 143 of the Federal Circuit and Family Court of Australia Act2021 (Cth) and is satisfied in this case that there is no reasonably arguable ground of relevant error. The Court is satisfied that the applicants’ proceedings have no reasonable prospect of success. The Court is satisfied that this is an appropriate matter in which the Court should exercise its power to summarily dismiss the proceedings and accordingly will affirm the registrar’s order in that regard.
It is for these reasons the Court makes the above orders.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 5 June 2024
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