Kumar v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 728
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 728
File number(s): MLG 927 of 2021 Judgment of: JUDGE FARY Date of judgment: 22 May 2025 Catchwords: MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs Legislation: Australian Constitution s75(v)
Migration Act 1958 (Cth) s 47(1), s 65(1), s 260(2), s 359C(2), s 360(3), s 363A, s 476, s 477
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143, s 254, s 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2, r 13.13, r 21.01, r 21.02, r 21.04
Migration Regulations 1994 (Cth) cll 186.1 to 186.611
Cases cited: AHH22 v Minister for Immigration,Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Bechara v Bates (2021) 286 FCR 166
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Leach v Burston [2022] FCA 87
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Quach v Commissioner of Taxation [2019] FCA 1729 Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494
Singh v Minister for Immigration (2017) 251 FCR 110; [2017] FCAFC 67
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submission/s: 14 May 2025 Date of hearing: 14 May 2025 Place: Melbourne Solicitor for the Applicant: In person Solicitor for the First Respondent: Ms Williams, Minter Ellison Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 927 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHUPESH KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
22 MAY 2025
THE COURT ORDERS THAT:
1.The applicant have leave to amend his application for review of the decision of Registrar Cummings dated 24 April 2025 (Review Application) to include an application pursuant to r 21.02(2)(a) of the Rules to extend the time prescribed by r 21.02(1)(a) of the Rules (Extension Application).
2.The Extension Application and the Review Application be dismissed.
3.The applicant pay the first respondent’s costs, of and incidental to the Review Application and the Extension Application, fixed in the sum of $1,607.
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 Fary
INTRODUCTION
By way of Application filed on 24 April 2025, the Applicant seeks review of a decision made by a Registrar of this Court, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
On 3 April 2025, a Registrar summarily dismissed the principal Application, which sought judicial review of a decision made by the Second Respondent (Tribunal) to affirm a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Permanent Employer Sponsored (Class EN) (Subclass 186) visa (Visa).
The Application was filed outside of the prescribed seven-day timeframe provided by r 21.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules). As a result, the Applicant requires an extension of time to prosecute his review Application.
The hearing of the Application took place at the Melbourne Registry of the Court on 14 May 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Hindi interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 14 May 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Applicant possessed an approved nomination as required by cl 186.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).
BACKGROUND
The Applicant is a citizen of India.
On 22 November 2017, the Applicant lodged an Application for the Visa.[2]
[2] Court Book (CB) 19-30.
On 3 August 2018, a Delegate of the Minister wrote to the Applicant seeking a response on the fact that his nomination with Victory International Business Services Pty Ltd had not been approved (Employer Nomination).[3]
[3] CB 62-65.
On 18 October 2018, a Delegate of the Minister refused to grant the Visa (Delegate’s Decision) on the basis that the Applicant did not satisfy cl 186.233 of the Migration Regulations because there was no approved nomination in respect of the position to which the visa Application related to.[4]
[4] CB 71-73.
On 6 November 2018, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[5]
[5] CB 98-110.
On 16 February 2021, the Applicants were invited to attend a hearing before the Tribunal on 23 March 2021 (Hearing Invitation).[6]
[6] CB 121-123.
On 2 March 2021, the Tribunal invited the Applicant by way of a s 359A letter to comment or provide a response to information, including that on 14 December 2020 the Tribunal had determined that it had no jurisdiction to review the decision not to approve the Employer Nomination.[7]
[7] CB 136-139.
On 13 March 2021, the Applicant wrote to the Tribunal requesting additional time to provide a response.[8]
[8] CB 140-142.
On 15 March 2021, the Tribunal advised the Applicant that it had considered the extension of time request. The Tribunal had decided not to grant the extension and requested that the Applicant provide his comments or response by 16 March 2021.[9]
[9] CB 140-142.
On 17 March 2021, the Tribunal advised the Applicant that the hearing had been cancelled, as the Applicant did not provide a response to the s 359A letter within the specified timeframe. The Applicant was advised that the Tribunal would make a determination on the papers and was invited to provide any further comments for consideration by close of business 23 March 2021. The Applicant did not provide any further material.[10]
[10] CB 143-144.
On 9 April 2021, the Tribunal affirmed the decision under review.[11]
[11] CB 151-154.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 147 to 154 of the Court Book.
The Tribunal summarised the background of the matter at [1] to [13].
The Tribunal noted that the Tribunal’s request for the Applicant to comment on information that the Tribunal had found it had no jurisdiction to review the nominator’s review of the nomination Application and therefore there was no approved nomination.[12]
[12] CB 152.
The Tribunal found based on the information before it, that there was no approved nomination of an occupation for the Applicant and therefore the Applicant did not satisfy cl 186.233(3) of the Migration Regulations.[13]
[13] CB 153.
The Tribunal found that there was no evidence to suggest that the Applicant sought to satisfy the requirements in the other visa streams, thus finding that the Applicant did not satisfy cl 186.233.[14]
[14] CB 153.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 6 May 2021, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act 1958 (Cth) (Migration Act). The Application raised the following ground of review (Ground of Review):
Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with. (Ground 1).
(Words in bold added, otherwise as written).
In the Minister’s submissions filed on 9 March 2025, the Minister sought an Order that the Application be dismissed pursuant to r 13.13 of the Rules. The Application was listed for this purpose before a Registrar on 3 April 2025. The Applicant did not file any further material despite being given opportunities to do so.
On 3 April 2025, a Registrar made a decision to summarily dismiss the Applicant’s judicial review Application pursuant to r 13.13(a) of the Rules with costs, on the basis that the Applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of FCFCOA Act: see also item 58 in r 21.01 of the Rules.
On 24 April 2025, the Applicant filed an application for review of the Registrar’s decision.
This matter was heard on 14 May 2025 at the Hearing before me. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant did not file written submissions, but made oral submissions at the hearing. He said that he was not currently employed and wanted more time to find another employer to sponsor him. He said that he wanted to make a better future. He also said that whatever happened in the past was no fault of his. At the hearing, the Applicant made an oral application to amend to seek an extension of time for filing the review application.
The Minister filed written submissions dated 12 May 2025 in opposition to the Application for review of the Registrar’s decision. The Minister noted that as the review application was filed out of time and no extension had been sought, the application was incompetent. However, the Minister acknowledged that it was open to the Applicant to make an oral application for an extension of time.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[15]
[15] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[16] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[17]
[16] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[17] Yusuf at [82].
The court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[18] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[19] Different kinds of error may overlap.[20] The categories are not closed.[21]
[18] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[19] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[21] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[22] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[23] It has been described as an “undemanding” standard.[24]
[22] LPDT at [7].
[23] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[24] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Employer Nomination Scheme
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Permanent Employer Sponsored (Class EN) (Subclass 186) visa are set out in cll 186.1 to 186.611 in Schedule 2 of the Regulations.
Clause 186.223 provided (at the date of the Decision):
1. The position to which the application relates is the position:
a. nominated in an application for approval that:
i. identifies the applicant in relation to the position; and
ii. is made in relation to a visa in a Temporary Residence Transition stream; and
b. in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
2. The Minister has approved the nomination.
3. The nomination has not subsequently been withdrawn.
3A.Either:
a. there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
b. it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
4. The position is still available to the applicant.
5. The application for the visa is made no more than 6 months after the Minister approved the nomination.
Review of Registrar’s Decision
Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides for the making of Rules of Court for the delegation of any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate which includes a Senior Registrar or a Registrar.
Division 21.1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules (Rules) lists the powers of the Court that are delegated to a delegate. The powers delegated to Registrars include (at item 58 of schedule 21.1), the power provided for in r 13.13 of the Rules to order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding.
Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
Rule 21.02(1) of the Rules provides that for the purposes of subsection 256(1) of the FCFCOA Act, an application for review of the exercise of a power by a Registrar must be made within 7 days. Rules 21.02(2)(a) provides that the time prescribed by r 21.02(1)(a) may be extended in a proceeding (a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or (b) with the consent of the parties to the proceeding.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[25] or in other words, “anew” or “afresh”.
[25] Bechara v Bates (2021) 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17] – [31].
Section 256(2) of the FCFCOA Act provides that on a review, the court may “and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised”. On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[26] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[27]
[26] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2] – [4] , [18] – [29].
[27] Section 254(4) of the FCFCOA Act.
Summary Dismissal
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides relevantly that summary judgment may be given in relation to the whole or part of any proceedings where “the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”.
Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules (Rules) provides that the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118, French CJ and Gummow J said in relation to 31A of the Federal Court of Australia Act 1976 (Cth) (which is expressed in similar terms to s 143 of the FCFCOA Act):
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(footnotes omitted)
The relevant principles are as follows:
(a)The party seeking summary disposal bears the onus of persuading the court that the proceeding has no reasonable prosects of success and should be disposed of summarily.[28]
(b)“The enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail” [29]
(c)“It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success”.[30]
(d)The word “may” in s 143 of the FCFCOA Act is used to indicate the conferral of power, rather than a discretion, such that if the criterion “no reasonable prospects of success” is satisfied, then the court is bound to exercise the power of summary disposal.[31]
(e)Section 143 of the FCFCOA Act has lowered the bar for summary disposal from earlier provisions.[32]
(f)The power to summarily dismiss must be exercised with “caution”.[33]
[28] Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (Cassimatis) at [45].
[29] Leach v Burston [2022] FCA 87 at [36].
[30] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].
[31] Leach v Burston [2022] FCA 87 at [36].
[32] Noting s 143(3) of the FCFCOA Act.
[33] Spencer at [24].
CONSIDERATION
The Applicant’s application to review the decision of the Registrar for the summary dismissal of his Application for judicial review of the Tribunal’s Decision was made out of time.
As set out above, r 21.02(1) of the Rules provides that an application for the review of the exercise of a power by a Registrar must be made within 7 days. The Registrar’s Decision was made on 3 April 2025. The Application for review was lodged electronically on Thursday 24 April 2025 at 9:24 p.m., but because received after 4:30 p.m., is taken to have been filed on Monday, 28 April 2025; noting that Friday 25 April 2025 was a public holiday. Therefore, the application for review was made 18 days out of time.
The Applicant, who was self-represented, made an oral application at the hearing to amend his Application to include an Application to extend the time prescribed by r 21.02(1)(a) of the Rules. The matter proceeded as if leave had been given (to seek an extension of time), with each party making submissions going to the merits of the Application to extend time for the review of the Registrar’s decision. I indicated that I would formally rule on the oral application to amend the Application for review in my judgment.
In the circumstances of the case, I am prepared to grant leave to the Applicant’s Application to amend his Application for review to include an application pursuant to r 21.02(2)(a) of the Rules to extend the time prescribed by r 21.02(1)(a) of the Rules.[34]
[34] Compare AHH22 v Minister for Immigration,Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [12].
However, I refuse the extension of time for the reasons that are set out below.
The application for an extension of time provided for in r 21.02(1)(a) of the Rules involves the court exercising the discretion provided for in r 21.02(2)(a).
The court should not grant an extension unless it is positively satisfied that it is “proper” to do so. Factors relevant to the exercise of the discretion to extend time include:[35]
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the respondent by the delay;
(d)impact on the applicant of a refusal to grant an extension;
(e)the public interest; and
(f)the merits of the substantive application.
[35] See Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (per Wilcox J at pp 348-349); compare Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).
The time prescribed by the legislative provision should not be ignored.[36]
[36] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550
Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[37] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[38]
[37] Jess v Scott (1986) 12 FCR 187 at 195.
[38] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].
Absence of prejudice is not sufficient, in itself, to justify an extension of time.[39]
[39] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579, the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the court,[40] which may include “impressionistic” assessment.
[40] Katoa at [19].
In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, in relation to a delay of 26 months, Derrington J stated (at [41] – [44]):
There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):
[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].
In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister’s legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal’s decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.
The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.
I turn now to the merits of the application for an extension of time.
The length of delay in the present case is 18 days, which is more than double the 7 day period provided for in the Rules. I do not place significant weight to the length of delay.
The Applicant’s explanation for the delay is that he was not aware of the time limit. This is a less than satisfactory explanation despite the fact that the Applicant was self-represented.
The prejudice to the Minister by the delay in filing the application for review is not particularly significant in the instant case, but he has a “legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas”.
The prejudice to public interest as a result of the delay is that the default, again, is not particularly significant in the instant case, nevertheless the consequent additional burden on the court is not a matter that cannot be ignored in a context where there is a significant backlog of cases, and a compelling need for the just and efficient resolution of cases. As a general proposition, the efficient management of cases is promoted by adherence to time limits.
The prejudice to the Applicant by refusing an extension is that his application for review of the Registrar’s decision to summarily dismiss his application will not be heard on its merits. This consideration is tempered by the fact that the merits of the summary dismissal application is a matter that I will take into account in the exercise of discretion.
I turn then to the merits of the application for review of the Registrar’s decision to make orders for summary dismissal. Given that a review of a Registrar’s decision is by way of hearing de novo, this factor requires me to consider the merit of the summary dismissal application, which in turn requires me to consider the merits of the underlying application for judicial review.
The critical question for the Registrar was whether he was satisfied that the Applicant had no reasonable prospect of successfully prosecuting the application for judicial review.
The sole Ground of Review was that the Tribunal “had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with”. The Applicant’s affidavit sworn 6 May 2021 raised the following additional matters:
I am not in breach of cl 186.223 condition and I have tried all the avenues to upkeep the conditions of my current visa. I have lost my job many times. And get me more stress. Also I have some family issue as well as… I sincerely request that you give due consideration to the compelling and compassionate circumstances. Also please acknowledge that current global circumstances, that being the pandemic of Covid-19, may impact on my ability to depart Australia…the Circumstances Leading to the breach were due to factors beyond my Control.
On the question of procedural fairness, I note that:
(a)The Applicant was invited to appear before the Tribunal.
(b)The Tribunal invited comment from the Applicant on adverse information by letter given under s 359A of the Migration Act advising that he would lose his entitlement to a hearing if he did not respond within a specified time period.
(c)The Tribunal considered, but rejected, the Applicant’s request for addition time to respond to the s 359A letter.
(d)In the premises, and by reason of ss 359C(2), 260(2) and 360(3) and 363A of the Migration Act, the Applicant lost his entitlement to appear, and the Tribunal had no discretion to allow him to appear.[41]
[41] Singh v Minister for Immigration (2017) 251 FCR 110; [2017] FCAFC 67 per North, Bromberg and Bromwich JJ (at [21]).
I am not satisfied that there is any substantial merit to the Applicant’s opposition to the summary dismissal application, because I am not satisfied that the Applicant’s Application for judicial review had any reasonable prospects of success. First, the Applicant’s disentitlement to appear was the result of the codified procedural fairness provisions that are set out above. I can see no flaw in the Tribunal’s Decision concerning the application of those provisions. Second, the other matters referred to in the Applicant’s affidavit sworn 6 May 2021 do not identify any jurisdictional error or arguable jurisdictional error.
Having regard to the matters set out above, particularly the lack of apparent merit in the Applicant’s Application for judicial review, and hence lack of merit in the opposition to the summary dismissal application, I refuse the Application for extension of the time provided for review of the exercise of power by the Registrar. In determining not to extend time for the review, I have been mindful of the principle that the court should be cautious in exercising the power of summary dismissal, which I take to have application in the context of the application for an extension of time for review of an order for summary dismissal.
The Minister contends that there is no evidence that the associated nomination is the subject of a judicial review Application, and the sponsor has not given any indication of an intention to seek an extension of time to do so, and that even if there were jurisdictional error, it would be futile to remit the matter.
The court may refuse relief if, irrespective of the individual merits, the decision-maker was bound by the governing statute to refuse the application.[42]
[42] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ held (at [58]).
In Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267, Mortimer J (as her Honour was then) (with whom Jago and Bromberg JJ, agreed) considered a contention that an appeal from a decision dismissing an application for judicial review of a decision not to grant a Subclass 187 Visa was futile, because the employer’s nomination had been refused by the Minister. While it was unnecessary for her to decide, Mortimer J concluded that even if error had been established, remitter to the Tribunal would have been futile:
…The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application.
…
…In my opinion the criterion [in cl 187.233(i)] imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
The absence of a subsisting and valid employer nomination and the futility of the underlying Application for judicial review is a further reason why the Applicant’s Application for an extension of time ought to be refused.
CONCLUSION
In the premises, the Applicant’s Application for an extension of time to review the Registrar’s decision and the Applicant’s review Application, ought to be dismissed. It is unnecessary for me to remake the Registrar’s order for summary dismissal of the Application.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs. In the event that the Application was dismissed, the Minister sought costs in the sum of $1,607 being less than the scale amount.[43] I am satisfied that costs ought to follow the event,[44] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[45]
[43] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[44] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[45] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 22 May 2025
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