Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 679
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 679
File number: MLG 14 of 2020 Judgment of: JUDGE FORBES Date of judgment: 11 August 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – where Tribunal refused Employer Nomination visa – application for extension of time – where nominating employer is now deregistered – consideration of matters relevant to discretion to extend time – where substantive grounds of review have no prospect of success – futility – application dismissed Legislation: Migration Act 1958 (Cth), s 359, 477
Migration Regulations 1994 (Cth), Sch 2 cl 186
Cases cited: Bechara v Bates [2018] FCA 460
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28
MZABP v Minister for Immigration (2015) 242 FCR 585
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
T & K McKrill Holdings Pty Ltd v Minister for Immigration [2017] FCCA 2370Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 31 July 2023 Place: Melbourne Solicitor for the Applicants: In Person Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 14 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGDISH KUMAR
First Applicant
SONIA RANI
Second Applicant
MAYRA BHOZGI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
11 August 2023
THE COURT ORDERS THAT:
1.The Applicants’ application for judicial review filed on 2 January 2020 be dismissed.
2.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 31 July 2023.
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
These reasons concern an application made by the applicants pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time to seek judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) dated 22 November 2019.
Mr Jagdish Kumar is the principal applicant. The second and third applicants are members of his immediate family.
The Tribunal affirmed a decision made by a delegate of the Minister not to grant the applicants’ Employer Nomination (permanent) (Class EN) (subclass 186) visas (the visa). The delegate refused to grant the visa to the applicants on the basis that Mr Kumar did not satisfy cl 186 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) which required that his visa application be supported by an employer nomination approved by the Minister. Mr Kumar’s visa application was rejected by the delegate because an associated application by his nominated employer Preet Brothers Pty Ltd (Preet Brothers) had been refused by the Minister.
The nomination application by Preet Brothers was also the subject of review by the Tribunal. There, the Tribunal affirmed the delegate’s decision not to approve the nomination. In a separate but related proceeding before the Court (which was listed to be heard with the applicants’ review application), Preet Brothers alleged error in the Tribunal’s decision. However, Preet Brothers has subsequently been deregistered and ceased to exist. In a separate judgment I summarily dismissed its application[1].
[1] Preet Brothers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 680
For the reasons set out below, I have decided that the applicants should not be granted extension of time to seek judicial review of the Tribunal’s decision. If there was any utility in granting the extension I would have been inclined to do so. However, for no reasons of their own, I am satisfied that the applicants have no prospect of success and that to grant an extension of time would be futile.
If another Court is called upon to review my decision not to grant an extension of time, I have also determined that the substantive application for review should be dismissed. The related employer Preet Brothers has been deregistered, it no longer exists and is incapable of nominating Mr Kumar for employment, the fundamental requirement for the grant of a visa.
Accordingly, I am not satisfied that it is necessary or in the interests of the administration of justice to grant an extension of time. The application is refused and the applicants should pay the Minister’s costs.
BACKGROUND
The background facts are not contested and the following summary is derived from a written submission filed on behalf of the Minister on 17 July 2023 and a written submission filed in the associated proceeding (Preet Brothers Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs). A brief written submission handed to the Court by Mr Kumar at the hearing of this application on 31 July 2023 has also been considered.
The applicants are Indian nationals. At the time of the visa application, Mr Kumar performed work as a hairdresser for Preet Brothers.
On 26 June 2017 Preet Brothers applied for approval of a nomination of a position for an Employer Nomination (class EN) (subclass 186) visa (the nomination application). The position nominated was a “hairdresser” and the nominee was Mr Kumar.
On 29 June 2017 Mr Kumar applied for the visa in order to take up employment with Preet Brothers in the nominated occupation of hairdresser[2].
[2] Court Book (‘CB’), p 12 – 27
On 20 August 2018, a delegate of the Minister refused Preet Brothers’ nomination application. It is not strictly necessary to explore the reasons for that refusal, but in substance the delegate was not satisfied that the terms and conditions of employment for Mr Kumar were no less favourable than those that would be offered to an Australian citizen or permanent resident performing equivalent work.
On the same day, 20 August 2018, a delegate of the Minister invited Mr Kumar to comment on information which was adverse to his application, namely that the Preet Brothers nomination application had been refused[3]. Mr Kumar did not respond to this invitation.
[3] CB 47 – 49
Subsequently, the Minister refused to grant the visa to the applicants on the basis that Mr Kumar did not satisfy the requirement in cl 186 that the position nominated in the visa application be supported by an employer nomination approved by the Minister[4].
[4] CB 51 – 61
On 9 September 2018, Preet Brothers, via its director Mr Singh, lodged an application with the Tribunal seeking merits review of the delegate’s decision to refuse the nomination application. On 15 October 2018, the applicants made an application to the Tribunal seeking review of the visa refusal decision[5].
[5] CB 62 – 66
The Tribunal heard Mr Kumar’s review application concurrently with the application for review filed by the associated employer.
On 29 August 2019 Mr Kumar attended the Tribunal and gave evidence in support of his application. That same day, Mr Singh attended the Tribunal and gave evidence on behalf of Preet Brothers.
It is perhaps relevant to note that the applicants in this matter appointed Quantum Legal Advisory and Migration Consultants Pty Ltd as their authorised representative on 23 August 2019. On 11 September 2019, after the Tribunal hearing, the representative advised Tribunal that it no longer acted for the applicants. Then, on 13 September 2019, the Tribunal was advised that the applicants had appointed Aussizz Migration and Education Consultants as their authorised representative. This may have given rise to some confusion in communications between the Tribunal and the applicants as described below.
On 17 October 2019, the Tribunal affirmed the delegate’s decision to refuse the Preet Brothers nomination application.
On 21 October 2019, the Tribunal invited the applicants to comment on information[6] adverse to their application, namely that the Tribunal had found against Preet Brothers with the effect that the first applicant could not satisfy a requirement for the grant of a visa. The invitation to comment was erroneously sent to the applicants’ former representative, Quantum, with a response deadline of 4 November 2019.
[6] CB 107 – 109
Subsequently, on 7 November 2019, the Tribunal re-sent the invitation to comment[7] to the applicants’ new representatives, Aussizz, and sought a response by 21 November 2019.
[7] CB 111 – 113
Further confusion followed when on 9 November 2019 the Tribunal notified the applicants’ appointed representatives that it had affirmed the visa refusal decision and attached a decision record dated 7 November 2019[8].
[8] CB 115 – 121
Then, on 11 November 2019, the Tribunal advised the applicants’ representatives that the case “remained open” and that the decision sent on 9 November 2019 had been sent in error due to an “administrative oversight”[9].
[9] CB 122
By 21 November 2019, Preet Brothers had lodged an application with the Court for judicial review of the Tribunal’s decision which affirmed refusal of the employer nomination application.
On 22 November 2019, the Tribunal affirmed the visa refusal decision and the applicants in the present case were notified of the decision on 2 December 2019 by email[10].
[10] CB 138 – 142
On 2 January 2020, the applicants lodged an application with the Court seeking judicial review of the Tribunal’s decision dated 22 November 2019.
TRIBUNAL DECISION
The Tribunal noted at [5] of its decision record that the delegate had refused to grant visas to the applicants because there was no approved employer nomination, a requirement necessary to meet cl 186.223 (2) of schedule 2 to the Regulations. Accordingly at [9], the Tribunal identified the dispositive issue in the case as being whether there was an approved nomination.
This issue had been the subject of an invitation to comment pursuant to s 359A of the Act. The Tribunal acknowledged that Mr Kumar had responded to the invitation to comment, and took into account his oral evidence at the hearing, but concluded that there was no evidence to demonstrate that the first applicant had an approved nomination.
Citing Mortimer J (with whom Bromberg and Jagot JJ agreed) in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, the Tribunal concluded that the visa application had to be considered against the specific employer nomination of Preet Brothers. In circumstances where there was no approved employer nomination to support Mr Kumar’s visa application, the Tribunal concluded that Mr Kumar could not overcome his inability to meet the mandatory requirement in cl 186.223.
In substance, the Tribunal found that the only course open to it was to affirm the delegate’s decision to refuse the applicants’ visa application. Absent an approved employer nomination which is specifically linked to the visa application, the visa application must be rejected.
APPLICATION FOR EXTENSION OF TIME
The Tribunal’s decision was made on 22 November 2019. Pursuant to s 477(1) of the Act, an application for judicial review must be made within 35 days of the date of the decision, which the Minister submits ended on 27 December 2019.
The Minister concedes that the applicants’ representative was not notified of the decision until 2 December 2019. The applicants filed their application for review on 2 January 2020, which was comfortably within 35 days of 2 December 2019, but 6 days outside the time prescribed by s 477.
The application filed by Mr Kumar on 2 January 2020 (which incidentally was signed and witnessed on 30 December 2019 and supported by an affidavit sworn on 31 December 2019) cites a number of generalised reasons in support of the request for an extension of time. In the Minister’s written submission filed in this proceeding, those reasons are summarised as contentions by Mr Kumar that:
(a)he could not file the application due to “circumstances”, “issues” and his seeking evidence to support his claim [1]-[4];
(b)he did not understand the process for filing the application, was “distraught” and could not file the application due to his “physical, mental, educational or linguistic limitations (including the lack of facility with the English language/accent)” [7]-[9], [11]; and
(c)he was misinformed by the Tribunal as to when he could file a judicial review application, and the Tribunal had notified him of the decision on 9 December 2019, despite it having been made on 22 November 2019.
In his application filed on 2 January 2020, Mr Kumar also articulated five substantive grounds of alleged error in the Tribunal’s decision. Those grounds were articulated as follows:
1.The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the application holders.
2.Tribunal was merely focused on the application for review which was not received by the Tribunal and decided that the application for review was not made in accordance with the relevant legislation and the tribunal had no jurisdiction in this matter.
3.The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the tribunal had no jurisdiction in this matter.
4.The Tribunal failed to consider relevant considerations in deciding that the application for review was not received within the prescribed period. The application for review solely hinges on the fate and outcome of the whole hearing proper [sic].
5.The Tribunal exercised its decision making power unreasonably and unconscionably.
At the hearing of the application on 31 July 2023, Mr Kumar was self-represented. He was afforded an opportunity to add to or expand upon his application for an extension of time.
Orally, Mr Kumar submitted that the extension of time was warranted because he had been the “victim of bad luck”. He said that he had a lot of different representatives during the process and that representatives had withdrawn their services from him. He also submitted that he was not legally represented at the time, did not understand legal language and filed his application himself but with some help.
Mr Kumar also handed up to the Court a short written submission in support of his application which also addressed some of the issues raised in the Minister’s written submission. In that written submission, Mr Kumar contended generally that he found the entire Tribunal exercise to be a mental, physical and financially exhaustive exercise and that he had no clue what was going on or how his representatives had been dealing with the matter. He again asserted that he had been a victim of bad luck when it came to proper representation.
Preet Brothers Pty Ltd no longer exists
Based on ASIC searches undertaken by the Australian Government Solicitor on behalf of the Minister, Preet Brothers was deregistered on 2 October 2022. The most recent search undertaken on 17 July 2023 confirmed that de-registration[11].
[11] Affidavit of Stanley Ho Chung Mak affirmed 17 July 2023, annexures SHCM-2 and SHCM-3
The first applicant in this proceeding does not contest that material fact.
There was, unsurprisingly, no appearance on behalf of Preet Brothers in the associated judicial review application which was listed before me on 31 July 2023. In that proceeding, the Minister sought summary dismissal of the application. In a separate judgement I have determined that summary dismissal was appropriate on the basis that the applicant did not have the legal capacity to prosecute the application and had no reasonable prospect of successfully prosecuting the proceedings.
As I explain below, the deregistration of Preet Brothers and the dismissal of its judicial review application has the necessary and unfortunate consequence for Mr Kumar that the substantive application in this proceeding must fail and that the grant of an extension of time would be futile.
Procedural matters
On 24 March 2020, a legal firm, Carina Ford Immigration Lawyers, filed a notice of address for service on behalf of the applicants.
On 21 April 2020, a Registrar of the Court made orders by consent directing various steps to be taken to prepare the matter for hearing. Those orders included that a court book be prepared and that the applicants and Minister each file written submissions. The Registrar also directed that this application be heard together with the Preet Brothers application MLG 4093/2019.
On 5 July 2023, Carina Ford Immigration Lawyers filed a notice of intention to withdraw as lawyer. That notice and an accompanying letter informed the applicants of their option to either appoint another lawyer or to file a notice of address for service on their own account. Each of the notice and the letter informed Mr Kumar that the final hearing was listed before the Court on 31 July 2023.
On 17 July 2023, the Minister filed written submissions. The Australian Government Solicitor deposes on behalf of the Minister that those written submissions and a sealed copy of the court book were emailed to the address stated on the notice of withdrawal filed by the applicants’ former representatives[12].
[12] Affidavit of Stanley Ho Chung Mak affirmed 26 July 2023, annexure SHCM-2
On 24 July 2023 the Minister also served on Mr Kumar by email a sealed copy of the Minister’s submissions in the Preet Brothers matter MLG4093/2019[13].
[13] Affidavit of Stanley Ho Chung Mak affirmed 26 July 2023, annexure SHCM-3
On 24 July 2023 Mr Kumar corresponded with my chambers and stated that he had sought an adjournment of the proceeding from “the delegate and a member” because he was “searching for a competent lawyer”. The following day, Mr Kumar corresponded with my chambers, the Tribunal and the Minister’s solicitors in which he enclosed a copy of the solicitor’s notice of ceasing to act. Among other things, Mr Kumar stated that he wanted to find a compatible lawyer and asserted that he was incompetent in understanding legal language and paperwork.
After enquiry to the Minister’s solicitors, my chambers were informed that the Minister had opposed a request for an adjournment which had been previously received from the applicants. The Minister informed my chambers that the adjournment was opposed on the basis that the application had been on foot since January 2020, that the applicants had legal representation up until 13 July 2023 and that having regard to the substantive issue the application had no prospect of success.
My chambers informed the parties that I would hear any further submissions in relation to the request for an adjournment at the commencement of the hearing on 31 July 2023. The applicants were also put on notice that in the event the application for an adjournment was unsuccessful, the Court would hear the application on that day.
Hearing of the application
The application for an extension of time came before me on 31 July 2023. Mr Kumar represented the applicants and Ms Nyabally, a solicitor, represented the Minister.
Mr Kumar renewed his request for an adjournment. He submitted that he did not understand legal language or process. He said that he had been trying to get other lawyers. When questioned by the Court, he said that he had spoken to two lawyers but they told him there was not enough time to represent him. Also under questioning from the Court, Mr Kumar said that he had endeavoured to get alternative representation from the time he had received the letter from Carina Ford.
The Minister’s representative relied upon the affidavit of Stanley Ho Chung Mak affirmed 26 July 2023. As stated, that affidavit deposed to the service of all relevant documents upon Mr Kumar including the court book and the Minister’s submissions in the instant matter and the Preet Brothers matter. Mr Kumar confirmed that he had received the email from the Minister’s solicitors and all of the documents attached.
The Minister submitted that Mr Kumar had been on notice of these proceedings for some years. The Minister’s representative said that the first applicant had been on notice of his solicitor’s withdrawal since early July 2023 and that he had not produced any objective evidence to corroborate his claims that he had sought alternative legal advice or other representation. Moreover, the Minister submitted that the substantive determinative issue in the proceedings was a very simple one, namely whether there was an approved employer nomination in place at the time of the first applicant’s visa application. Ms Nyabally, submitted that in relation to that question the first applicant had no prospect of success and that there was accordingly no utility in granting an adjournment as those prospects could not be enhanced by the engagement of alternative legal representation.
Exercising my discretion, I declined to accede to the adjournment request. Although I note that the Minister would suffer little prejudice by an adjournment, I am persuaded that the applicant was on notice of the proceeding and has had an adequate opportunity to seek out and obtain alternative representation. I am not persuaded that he has endeavoured to do so with diligence. I am also persuaded for reasons discussed later in these reasons that the applicants’ case cannot be improved with an adjournment or representation.
LEGAL PRINCIPLES
Extension of time
Section 477(2) of the Act allows this Court to grant an extension of time within which a review application can be made if it is satisfied that it is necessary in the interests of the administration of justice to do so.
It is well-settled that in determining whether it is in the interests of the administration of justice to extend time under section 477 of the Act, there are a range of factors to which the Court can have regard[14]. Whilst there is no exhaustive list of factors, commonly the following matters are regarded as relevant to the exercise of the Court’s discretion:
(a)the length of the delay;
(b)any explanation for the delay;
(c)prejudice to the Minister if the extension of time were granted; and
(d)the merits of the substantive application.[15]
[14] Bechara v Bates [2018] FCA 460 per Perry J at [17] – [18] and the authorities cited therein
[15] See MZABP v Minister for Immigration (2015) 242 FCR 585
The power to extend the time for filing a review application, such as that permitted by section 477(2), was recently the subject of judicial consideration by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28 (Katoa).
In Katoa the High Court did not take issue with these settled principles, although it did consider the jurisprudence which had developed regarding how the Court is to assess the merits of the substantive application, in particular, whether the Court can assess the ‘merits’ on anything other than an ‘impressionistic’ basis.
As to the assessment of merits in the context of an extension of time application, the plurality in Katoa (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at paragraphs [17] and [18]:
17.[…] it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However […] there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Similar comments were also made by the balance of the Court in Katoa (Gordon, Edelman and Steward JJ) at paragraph [62]:
62.[…] Where an application for an order under s 477A(2) has been made to the Federal Court “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”, the question for the Federal Court - the statutory question - is whether the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension. There are no mandatory considerations. A number of factors may be relevant and it is for the judge hearing the application to decide what is both necessary and sufficient to resolve the issues raised in the application. In assessing whether it is necessary in the interests of the administration of justice to grant the extension under s 477A(2), the merits of the underlying application may be, and often are, considered and given considerable weight. In some, maybe most, extension of time applications, the judge can and does consider the merits of the underlying application at what might be described as a threshold level - inquiring whether the proposed grounds of review enjoy reasonable prospects of success. But in order to resolve the facts and issues raised in an application, the judge may sometimes consider that it is necessary to have regard to the merits of the underlying application in greater detail.
CONSIDERATION
Length and reasons for the delay
Notwithstanding previous orders of the Court, the applicants did not file any written submission prior to the hearing. However, on the morning of the hearing Mr Kumar did provide the Court with a short written submission which was copied and provided to the Minister’s solicitor.
In his oral address to the Court, Mr Kumar said that the extension of time was warranted because he did not understand legal language and did not have representation at the time the application for review needed to be filed. He said that he had had a number of different representatives over a period of time, and that they had all withdrawn their services. He said that he had been the victim of bad luck.
The written submission handed to the Court by Mr Kumar was in the nature of a historical narrative and a plea for the Court to recognise him as a genuine and honest applicant who had been mentally, physically and financially exhausted through the long migration process. He mentioned that the period in late 2019 had been a difficult time for him and that he did not really understand what was going on or what his representatives were doing.
The Minister relied upon its written submission and emphasised that the Tribunal had complied with its statutory requirements of notifying the applicants of the decision. Nonetheless, the Minister’s representative accepted that the delay was only six days and that the applicants’ poor language skills, unfamiliarity with the legal system and loss of representation could be regarded as a plausible explanation.
The Court also notes that the 6 day delay occurred over the Christmas/New Year period and that the application and supporting affidavit had been prepared in late December but not filed until 2 January 2020. In addition to that circumstance, the Court also notes the confusion which occurred during November 2019, the responsibility of which rests with the Tribunal, together with the delay between the making of the decision and its communication to the applicants’ representative in December 2019.
In my view, the brief delay of six days in the circumstances described above is a factor which weighs in favour of the grant of an extension of time.
Prejudice
The Minister accepts that there will be no prejudice if the extension of time is granted, but notes that the absence of prejudice is, in itself, insufficient to warrant extension of time[16].
[16] SZTRY v Minister for Immigration and Border Protection [2015] FCAFc 86 at [6]
Merits of the substantive application
The Minister submits that there is no merit in the substantive application, such that it would be inutile to extend time[17]. I agree.
[17] MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5]-[6]
The criteria for the grant of a subclass 186 visa are set out in Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant, in this case Mr Kumar. Other members of the family unit, if any, who are applicants for the visa need satisfy only secondary criteria.
In the present case, Mr Kumar sought the visa to work in the nominated position of hairdresser. Clause 186.223 requires that the position to which the application relates is the subject of an application for approval which identifies the visa applicant and which nomination has been approved and not subsequently withdrawn. In this case, Mr Kumar’s nominating employer, Preet Brothers, did apply for approval of the position of hairdresser in respect of Mr Kumar but the Department refused to approve the employer nomination.
In Singh v Minister for Immigration and Border Protection, the Full Court considered the operation of cl 187.223 which effectively mirrors the operative provision in this case. There, Mortimer J (as Her Honour then was) at [88] addressed the inseparable and essential connection between the visa application and the requirement for approval of the employer nomination. The Court stated that:
“The words in cl. 187.223 ‘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… An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular provisions 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).” (Emphasis added)
The substantive application for review in this case contained five grounds, set out above. The Minister submits, and I agree, that none of those grounds engage with the only dispositive issue before the Tribunal, namely whether Mr Kumar was the subject of an employer nomination approved by the Minister. The substantive grounds advanced by the applicants are misdirected. They either seek impermissible merits review or they are premised on a non-existent finding that the Tribunal had no jurisdiction to review the application.
In my view, the substantive application does not enjoy any prospect of success. As Mr Kumar’s visa application was not supported by an approved employer position nomination, the Tribunal made the only decision which was open to it. The Tribunal concluded, as it was required to do, that cl 186.223(2) of Sch 2 of the Regulations was not met.
Accordingly, whatever might be said about the other factors which are relevant to an extension of time application, here the merit of the substantive judicial review application is so lacking that it cannot be necessary in the interests of the administration of justice to make an order extending time. The application for an extension of time should be dismissed.
Futility
There is a further practical argument which weighs in favour of dismissing the application.
As set out in the Minister’s submissions in the associated Preet Brothers application, the corporate employer is now deregistered and incapable of prosecuting a judicial review application. The visa applicant, Mr Kumar, does not have standing to impugn the Tribunal’s refusal of the employer nomination application[18]. Therefore, there is not and never can be, an approved employer nomination in respect of which a valid visa application can be made.
[18] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 per O’Sullivan J at [89]-[101] (Raper J concurring); T & K McKrill Holdings Pty Ltd v Minister for Immigration [2017] FCCA 2370 at [29]-[31]
Furthermore, even if the Tribunal’s decision was affected by jurisdictional error, it would be futile to remit the matter to the Tribunal because the associated employer no longer exists and the Tribunal would not be able to grant the relief sought.
DISPOSITION
The circumstances in which the applicants find themselves are most unfortunate. The Minister accepts that the principal applicant has at all times been honest and candid and that the circumstances of the visa refusal are largely outside his control.
I note in passing, that those observations are consistent with the observations made by the Tribunal who found Mr Kumar to be a genuine and credible witness. He again presented to be so in his appearance before the Court. In his written submission Mr Kumar aptly described himself as a genuine and simple, hard-working hairdresser for whom “challenging arguments and court fights are not my cup of tea”. He submits that his application was always genuine and that the deregistration of his former employer after it succumbed to the COVID-19 crisis was not something he could do anything about.
Nonetheless, I am satisfied that the Tribunal did not fall into jurisdictional error and that it made the only decision that was open to it. There is no merit to the substantive application for review. Granting an extension of time for the filing of a judicial review application would be an exercise in futility and for that reason I dismiss the application.
The applicants should pay the first respondent’s costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 11 August 2023
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