Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 100
•29 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 100
File number(s): MLG 2683 of 2019 Judgment of: JUDGE A KELLY Date of judgment: 29 September 2021 Catchwords: MIGRATION – Temporary Business Entry (Class UC) (subclass 457) visa – judicial review of decision of Administrative Appeals Tribunal – extension of time – where applicant previously sought judicial review of same Tribunal decision – whether application for judicial review incompetent – abuse of process – applicable principles – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 338, 347, 359A, 477, 486D
Migration Regulations 1994 (Cth), reg 4.10, Sch 2 cl 457.223
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 12.01, 12.02Federal Circuit Court Rules 2001 (Cth), r 13.10
Cases cited: Avaiya v Minister for Immigration and Border Protection [2017] FCCA 268
AYI16 v Minister for Immigration and Border Protection [2017] FCA 1358
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kumar v Minister for Home Affairs & Anor [2019] FCCA 2068
Mentink v Minister for Home Affairs [2013] FCAFC 113
Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249
MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478
MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296
MZZQA v Minister for Immigration and Border Protection [2016] FCA 584
SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241
SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82
SZVXP v Minister for Immigration and Border Protection [2016] FCCA 1287WZAUH & Anor v Minister for Immigration [2019] FCCA 2018
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 29 September 2021 Place: Melbourne Applicant: In person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2683 of 2019 BETWEEN: SANJEEV KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the court by video and audio link.
2.The application dated 19 August 2019 be dismissed.
3.The applicant pay the costs for the first respondent fixed in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 A KELLY
Introduction
By application dated 19 August 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 April 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Temporary Business Entry (Class UC) (subclass 457) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
By his application, the applicant also sought an extension of time pursuant to s 477 of the Act within which to seek judicial review of that decision.
Section 486D of the Act requires an applicant to disclose to the Court any previous judicial review proceeding in relation to the Tribunal’s decision. Facts not disclosed by the application dated 19 August 2019 include that the applicant had previously sought judicial review of the same Tribunal decision (MLG1275 of 2018), and that this application had been dismissed on 30 July 2019: Kumar v Minister for Home Affairs & Anor [2019] FCCA 2068, [26] (Egan, J).
Since the application must be dismissed as incompetent, the extension of time should be refused.
Background
The applicant, Sanjeev Kumar, a male Indian citizen aged 34 years, applied for the visa as the subject of a pending nomination made by his prospective sponsor, Pro Street Pty Ltd, which listed him in the nominated occupation as an automotive electrician.
On 17 March 2017, the applicant applied for the visa and listed the sponsoring employer as Pro Street Automotive (Pro Street). The applicant authorised Pro Street to act and receive communication about the application on his behalf, which included authorising the Department to send correspondence to it and provided Pro Street’s email address in that regard. On the same day the then Department of Immigration and Border Protection (Department) transmitted an acknowledgment that visa application had been lodged.
On 24 April 2017, the Department transmitted a request to the applicant for additional information relating to the visa application and provided a detailed checklist to the applicant of the information required to assess the application.
On 10 August 2017, a delegate of the Minister made a decision to refuse a sponsorship application that had been lodged by the applicant’s prospective employer, Pro Street. On the same day, the Department invited the applicant to comment on information it had received indicating that his employer did not have an approved nomination for the applicant’s nominated position. For the purposes of this application it may be noted that an approved nomination was an essential criterion for the grant of the temporary visa for which he had made application.
On 7 February 2018, the delegate refused the visa application, notified the applicant and provided him with a statement of reasons. The delegate’s decisional record found the applicant did not meet the requirement in cl 457.223(4)(a) of Sch 2 of the Migration Regulations 1994, since the applicant was not the subject of an approved nomination. On the same day, the applicant was notified of the decision by email to the sponsor.
A period of 21 days is fixed for the making of an application for merits review by the Tribunal of the delegate’s decision: Act, s 347(1)(b), reg 4.10.
On 1 March 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
Somewhat curiously, the application incorrectly listed the applicant’s name as Narinder Singh. On 15 March 2018, Narinder Singh emailed the Tribunal correcting the name on the application, and on 19 March 2018 the applicant appointed Narinder Singh as his representative and authorised recipient for the purposes of his application.
On 29 March 2018, the Tribunal invited the applicant to comment on the validity of his application for review and expressed the view the application had been lodged out of time, adding that this was a matter that must be determined by the Tribunal.
On 12 April 2018, the applicant’s representative submitted a response to that invitation, attaching a statement from the applicant dated 12 April 2018 and supporting documents. The applicant emailed that response again on 13 April 2018. The applicant stated that he had been abroad for his marriage.
The applicant stated that he tried to submit his application but “due to overseas trip my payment methods were not available.” He stated that he sought assistance from a friend to pay and submit his application and as a result the process took a few minutes longer than anticipated. Included with his response was a flight itinerary, which suggested that the applicant returned to Australia by flight on 28 February 2017.
Tribunal’s decision
On 17 April 2018, the Tribunal found that it did not have jurisdiction to review the delegate’s decision and provided a statement of its reasons for having reached that conclusion.
The Tribunal found the applicant had been notified on 7 February 2018 by email of the delegate’s decision and that the time for applying for a merits review expired on 28 February 2018. The Tribunal rehearsed some of the history set out above, concluded that as the application for review had not been received until 1 March 2018, it had no jurisdiction and observed it had no power to waive the requirement that such application be lodged within time or to grant an extension of time within which to do so: Reasons, [7].
First application for judicial review
On 10 May 2018, the applicant applied for judicial review of the Tribunal’s decision.
On 26 June 2019, the application was dismissed for non-attendance by a registrar of the court, however, the applicant applied for reinstatement, which application was not opposed. When the application came on for hearing, the applicant sought an adjournment which was opposed. The adjournment was refused in circumstances where, the applicant having relied upon his stress and inability to pursue the application had adduced no evidence, including any independent evidence, to support this contention. I note on this occasion the applicant also sought an adjournment on the basis he required time to retain lawyers and prepare his case.
On 22 July 2019, the dismissal for non-attendance was set aside by Egan J and the substantive proceeding was dismissed: Kumar v Minister for Home Affairs & Anor [2019] FCCA 2068. His Honour found there was no dispute as the applicant had been notified and as the application was out of time, the Tribunal had no jurisdiction to entertain the application and further that the application for approval of sponsorship of the applicant had been refused with the result that (where that refusal had not been the subject of any application for review), an essential criterion for the grant of the visa application could not be met. His Honour considered, and rejected, several bases on which it may have been suggested the decision was attended by jurisdictional error. It does not appear that decision was the subject of any appeal.
Second application for judicial review
On 19 August 2019, the applicant filed the application for judicial review of the Tribunal’s decision which is before me. In that part of the pro forma application entitled Other Court Proceedings, it was stated “This section must be completed if the applicant has made a previous application or applications to a court to review the decision – see section 486 D of the [Act].” Despite this statement, this section of the application was left blank. The applicant signed his application on the same page where this information had been required to be completed.
By his affidavit affirmed on 19 August 2019 the applicant reiterated his complaint that the Tribunal had not accepted his application for review and so, it was said, had breached s 359A of the Act in “failing to put to the applicant for comment information contained in the first applicant 457 visa refusal.” A copy of the Tribunal’s reasons dated 17 April 2018 were exhibited to the affidavit together with a copy of extract of the applicant’s passport.
On 2 September 2019, the Minister filed a response opposing the application and sought an order that the application be dismissed for want of jurisdictional error. In further elucidation of the grounds of opposition, it was stated the court had no jurisdiction to conduct a review as, by operation of s 477(1) of the Act, the application had been lodged out of time.
On 24 June 2021, the Minster filed an amended response, relying upon the original ground of opposition and stated: the applicant had not disclosed the previous judicial review proceeding, the dismissal of the first application for judicial review, and, with reliance upon r 13.10(c) of the Federal Circuit Rules 2001 (Cth), the present proceeding was an abuse of process.
On 28 July 2021, an order was made that the application for an extension of time be set down for hearing and directions were given to regulate the orderly preparation of that hearing.
The opportunities afforded by that order were not taken.
In the circumstances, on 15 September 2021, the Minister filed submissions that were responsive to the application and contended, in substance, that the application for judicial review was incompetent by reason that the applicant had not disclosed the effect of his having already applied, unsuccessfully, in proceeding MLG1275 of 2018, for judicial review.
On 23 September 2021, the applicant filed a submission which I have examined, and by which it was said the applicant continued to suffer stress, depression and ill-health and that he required “more sufficient time to get fit and undergo legal proceedings.” Although it was submitted, on several occasions, that the applicant would submit supporting documents he did not do so. The applicant also submitted that he had not been given sufficient time to prepare and that he needed more time to arrange for a lawyer, adding that the current restrictions in place by reason of the Covid-19 pandemic made that impossible. The orders proposed by the applicant were that the proceeding be adjourned until he was fit to participate in the hearing and to arrange for supporting documents. He also sought that a lawyer be appointed to present his case. From the body of his submissions the applicant proposed the hearing be adjourned to August 2022.
Extension of time – applicable principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).
The power to extend time is subject to two conditions: (1) an application has been made in writing for such an extension, in which the applicant specifies why it is necessary in the interests of administration of justice for an extension to be granted; (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.
The discretion to extend time for the commencement of proceedings is a deliberately broad one: Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25]. It is well-settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
Despite the broad discretion, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348. The discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.
If an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82, [27]; MZABP v Minister for Immigration and Border Protection(2016) 152 ALD 478, [38]. Whether an extension of time should be granted depends upon the particular circumstances of each case: Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38].
The applicant was self-represented before me. As he was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and his application for review.
The applicant’s grounds for an extension of time as set out in his application read:
1.THE AAT HAVE NOT ACCEPTED MY APPLICATION. I HAVE MADE ANOTHER APPLICATION TO AAT WHICH IS STILL NOT FINLISED [sic] YET.
2.TRIBUNAL BREACHED SECTION 359A OF THE MIGRATION ACT (CTH) OF THE FAILING TO PUT TO THE APPLICANT FOR COMMENT INFORMATION CONTAINED IN THE FIRST APPLICANT’S 457 VISA REFUSAL.
3.I REQUEST TO THE COURT FOR NATURAL JUSTICE.
The applicant’s proposed grounds of review read:
1. THE AAT HAVE NOT ACCEPTED MY APPLICATION.
2.THE TRIBUNAL BREACHED SECTION 359A OF THE MIGRATION ACT (CTH) OF THE ACT, FALING TO PUT TO THE APPLICANTS FOR COMMENT ON INFORMATION CONTAINED IN THE FIRST APPLICANT’S 457 VISA REFUSAL.
3.THE AAT DID NOT ACCEPTED FURTHER COMMENTS ON THE APPLCIATION.
The relief sought by the application was an order to quash the Tribunal’s decision.
Consideration
There is no, let alone any, cogent evidence in support of the application for an adjournment and, having regard to the history of the proceeding the application is refused. So too, while the rules of court provide for the ability to issue a certificate for legal assistance, there is nothing in the factual circumstances of this case as to warrant such a referral: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 12.01. Further, as r 12.02 provides, a party is not entitled to apply to the court for such referral.
Before me, the applicant submitted, without evidence, he had a variety of medical complaints and wanted the case heard next year so that he could retain a lawyer and get his papers from his migration agent. He said he had been overseas immediately before lodging his application for merits review with the Tribunal. Although he confirmed he had been overseas for his wedding, he added that he had also been involved in litigation over a dowry.
In my view, the application for an adjournment was devoid of merit.
This, the second application for judicial review is 454 days out of time. The delay is inordinate and is in itself is a sufficient reason to refuse the extension of time: WZAUH & Anor v Minister for Immigration [2019] FCCA 2018, [16]-[20] (Lucev, J). No explanation is provided as to why the application for judicial review had not been lodged within time.
It may be assumed in the applicant’s favour that no question of prejudice arises.
Even at an impressionistic level, it cannot be said the proposed grounds have merit.
First, s 486D requires an applicant for judicial review to disclose to the court any judicial review proceeding that has already been brought in relation to the subject decision. An application that does not comply with the requirement is not competent and must be dismissed: MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296; SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241; Avaiya v Minister for Immigration and Border Protection [2017] FCCA 268; SZVXP v Minister for Immigration and Border Protection [2016] FCCA 1287. This conclusion is dispositive of the application for an extension of time.
Secondly, since a final judgment has been entered in the first application for judicial review, the present application constitutes an abuse of process upon the orthodox application of the principles of res judicata: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 511 (Deane, Toohey and Gaudron JJ, Brennan J agreeing generally), 512 (Dawson J).
Thirdly, I agree in the submission that the proposed grounds of review are devoid of merit.
Fourthly, as observed by Egan J in the first application for judicial review, the application for approval of sponsorship of the applicant had been refused with the result that, where that refusal had not been the subject of any application for review, an essential criterion for the grant of the visa application could not be met: Act, s 338.
Conclusion
For the reasons above, I am satisfied the application is incompetent and accordingly, it is not in the interests of the administration of justice to grant the application for an extension of time.
Further, viewing all of the facts and circumstances collectively, there is nothing in the present application upon which the court could be satisfied it is proper or necessary in the interests of the administration of justice to grant the application for an extension of time in which to apply for judicial review. Nor, in my opinion, would it otherwise be appropriate in the exercise of discretion to do so. The application for an extension of time should be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 29 September 2021
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