Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 616
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 616
File number(s): MLG 2314 of 2021 Judgment of: JUDGE VASTA Date of judgment: 4 August 2022 Catchwords: MIGRATION – review of registrar’s decision – failure to institute proceedings within time – no application for extension – application dismissed – applicant to pay first respondent’s costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): 1.07, 13.13(a),
Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256, Part 21
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 25 July 2022 Date of hearing: In Chamber Place: Brisbane Counsel for the Applicant: The Applicant filing written submissions on their own behalf Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2314 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BALRAJ KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 22 June 2022 is dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $2,175.00.
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 VASTA
INTRODUCTION
The Applicant is a citizen of India. On 18 January 2017, she applied for an employer nominated Visa on the basis of her nomination by her prospective employer, VR Telepoint, in the nominated occupation of web administrator.
For her Visa application to succeed, VR Telepoint needed to have an approved nomination. If the employer does not have an approved nomination, the Visa application simply cannot succeed. VR Telepoint did not have an approved nomination.
On 15 September 2017, the delegate of the Minister refused to grant the Applicant the Visa.
The Applicant then applied to the Administrative Appeals Tribunal (“the AAT”) for a review of that decision. The Tribunal, with the consent of the Applicant, made a decision on the papers regarding the review. On 23 August 2021, the Tribunal affirmed the decision not to grant the Applicant the Visa.
On 13 September 2021, the Applicant asked this Court to review that decision. The Minister sought summary dismissal.
On 19 May 2022, Registrar van der Westhuizen acted pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) and summarily dismissed the application.
On 22 June 2022, the Applicant asked this Court to review the decision of the Registrar.
Reviews of Decisions
Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the division two judges to “delegates”. Relevantly for this matter, the power of a judge to make the form of order that was made, has been delegated to the Registrar.
As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power. The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.
The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The Rules of Court
Part 21 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) pertains to the review of exercise of power by a Registrar or Judicial Registrar. The Rules state that a review must be filed within 7 days after the order or decision is made (though this may be extended upon application). The application must be served not later than 7 days after it is filed and the application must be listed for hearing as soon as possible and within 14 days after the filing, unless it is not practicable to do so.
The procedure for the review states that review must proceed by way of a hearing de novo.
The Rules state that the Court may receive, as evidence, any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.
The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.07 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Whilst the Rules state that the Court must embark upon a “hearing de novo”, this simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power. The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.
This Review
I have decided that this review will be conducted as a hearing de novo on the papers. To this end, I made a number of directions requiring the parties to make their submissions. I have had regard to those submissions.
Procedural matters
As can be seen from the dates that I have earlier mentioned, the decision of Judicial Registrar van der Westhuizen was delivered on 19 May 2022. As earlier explained, the Applicant had seven days within which to file an application for review. This means that her application needed to be filed by 26 May 2022, and if not, needed to be accompanied by an application for extension of time.
The Applicant filed the application for review on 22 June 2022 which is 27 days out of time. There has been no application for extension of time, either filed or in submissions.
This means that the application cannot be heard by the Court and it must be dismissed.
Comments
The Applicant wrote a very large “essay” on procedural fairness, attempting to say that she had not been afforded procedural fairness by this Court. She said that it was unfair for her to have had her case dismissed without a hearing before a Judge.
Judicial Registrar van der Westhuizen treated the Applicant with respect and kindness. He explained the law to her. He was absolutely correct that the application just simply could not succeed because the employer had no approved nomination. All of the matters that the Applicant was raising were simply not relevant. There is no discretion in the Court, the Tribunal or even the delegate to grant a Visa where the mandatory requirements are not met.
I have made these comments simply because the Applicant has unfairly maligned Judicial Registrar van der Westhuizen and this Court needed to dispel any impression that the Judicial Registrar acted with anything other than the utmost integrity.
Order
I dismiss the application for review with costs in the sum of $2,175
I certify that the preceding twenty-three (23 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 4 August 2022
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