Khurana v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1068

Federal Circuit and Family Court of Australia

(DIVISION 2)

Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068

File number(s):

MLG 224 of 2022

Judgment of:

JUDGE VASTA

Date of judgment:

20 December 2022 

Catchwords:

MIGRATION – review of judicial registrar’s decision – extension of time – futility of application – application dismissed

Legislation:

Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): Part 21, r 1.07 

Division:

Division 2 General Federal Law

Number of paragraphs:

16

Date of last submission/s:

4 November 2022

Date of hearing:

In Chambers

Place:

Brisbane

Counsel for the Applicants:

The Applicants providing written submissions on their own behalf

Counsel for the First Respondent:

Mr Sypott, Solicitor

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

MLG 224 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ARWINDER SINGH KHURANA

First Applicant

PAWANPREET KAUR

Second Applicant

DHANVEER SINGH

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	20 DEcember 2022

THE COURT ORDERS THAT:

1.The Application for review filed on 11 October 2022 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,500.00.

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

1. On 20 September 2022, Registrar Van Der Westhuizen summarily dismissed an application by the Applicant, Arwinder Singh Kurana, for a judicial review of a decision made by the Administrative Appeals Tribunal (“the AAT”).  On 11 October 2022, the Applicant filed an application to this Court to review the decision made by the Registrar.

   Reviews of Decisions

2. 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.

3. 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.

4. 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

5. 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.

6. The procedure for the review states that review must proceed by way of a hearing de novo.

7. 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.

8. 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.

9. 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

10. 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.

    Preliminary matters

11. As can be seen from the dates above, the Registrar summarily dismissed the review on 20 September 2022.  This meant that the Applicant had until 27 September 2022 to file this application.  He did not do so until 11 October 2022.

12. There has been no application for an extension of time.  This means that the review is incompetent and it must be dismissed.

    Merit of the application

13. Even if the application were not incompetent, it had no prospects of success.  The Applicant sought a regional employer nomination Visa.  He sought the Visa for the position of cook and he had his wife and child apply for visas as members of his family unit.

14. The position of cook, for which he sought the visa, was a position in which his employer was a company known as Mahabir Pty Ltd.  For the Applicant to be successful, the employer needed to be an approved nominator employer.

15. The employer did not have any such approval.  As such, the application of the Applicant for this visa could never be successful.

    Order

16. I order that the application be dismissed with costs fixed in the sum of $1,500.00.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       20 December 2022