Lin v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1019
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1019
File number(s): SYG 2222 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 9 November 2023 Catchwords: MIGRATION – Application for review of Registrar’s decision dismissing application for reinstatement – onus for review of reinstatement application is borne by applicants Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05, 21.02, 21.03, 21.04
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 501
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 3 November 2023 Place: Sydney Applicants: First applicant appeared in person Solicitor for the First Respondent Ms C Warren of Sparke Helmore ORDERS
SYG 2222 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XIUMING LIN
First ApplicantYUFANG CHEN
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application made pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), seeking review of the decision of Registrar Carney made on 19 September 2023, is dismissed.
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 GIVEN:
Before the Court is an application for review of a decision by a Registrar (review application) who, on 19 September 2023, made an order dismissing an application in a proceeding which in turn sought to reinstate these proceedings (reinstatement application), they having been dismissed by a Registrar of the Court on 10 August 2023 when the applicants failed to appear at a telephone callover.
BACKGROUND
On 6 September 2018, the first applicant (applicant), who is a citizen of China, applied for a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa (visa) (Court Book (CB) 1 to 18). The second applicant is the applicant’s wife and was included in the visa application as a member of the same family unit.
By the visa application, in response to a question “Does the applicant have at least functional English language ability?”, the applicant answered “No” (CB 11). In response to the question “Is the applicant seeking an exemption from the English language requirement?”, the applicant answered “Yes” (CB 16).
By their visa application, the applicants provided a particular Hotmail email address (CB 7) (the Hotmail address) and appointed their migration agent as their authorised recipient. The applicant was sponsored for the purposes of the visa by Green Leaf Australia Group Pty Ltd (Green Leaf) for the nominated occupation of Chief Executive or Managing Director (CB 90). On 9 May 2019, a delegate of the Minister (delegate) refused to grant the visas as the applicants did not satisfy cl 187.222 of Schedule 2 to the Regulations (CB 89 to 92).
On 15 May 2019, the applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision (CB 93 to 95). The Hotmail address was again given as being their contact email address in connection with the review (CB 94).
On 17 June 2019, the Tribunal invited the applicants to attend a hearing on 23 July 2019 (CB 104 to 105). By that invitation, the Tribunal requested the applicants provide evidence that the English language requirements in relation to the visa were met (CB 105).
On 23 July 2019, the applicant attended the hearing to give evidence and present arguments, with the assistance of a Mandarin interpreter. The applicants’ migration agent was also present (CB 111 to 113).
The Tribunal found that the applicant did not meet the English language requirements, cl 187.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), nor was there any extant exemption applicable to him. Accordingly, it affirmed the decision to refuse to grant the applicants the visa.
These proceedings were commenced by an application to show cause filed with the Court on 28 August 2019. The Hotmail address was given as being the email address for service for the purposes of the proceedings.
On 19 December 2019, the applicants attended a first court date before a Registrar of the Court on which occasion orders were made (by consent) for the preparation of the matter, which was next listed for callover on a date to be fixed administratively. The matter was placed in the central migration docket.
On 27 July 2023, an email was sent to the parties informing them that the matter was listed for callover by telephone at 10:15am on 10 August 2023 before a Registrar of the Court. The email included details of how to dial in to the callover, and the procedures which would be followed in that hearing. For the applicants, that email was sent to the Hotmail address.[1]
[1] Annexure “CW1” to Warren Affidavit
On 8 August 2023, the solicitors for the Minister emailed the applicants using the Hotmail address, reminding them of the date and time of the callover and putting them on notice that if they did not appear, the Minister would seek orders that the matter be dismissed with costs.[2] On 9 August 2023, the solicitors for the Minister sent an email to the Court, copying the applicants at the Hotmail address, and attaching the correspondence of 8 August 2023 (presumably on the contingency that it would need to be tendered at the callover in the event of non-appearance[3]).
[2] Annexure “CW2” to Warren Affidavit
[3] Annexure “CW3” to Warren Affidavit
When the applicants failed to appear (or be represented) at the telephone callover on 10 August 2023, a Registrar dismissed the matter pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and made an order for costs (August orders).
On 13 August 2023, following service of the August orders by the solicitors for the Minister on the applicants by email to the Hotmail address, the applicants replied[4] (from a different email address: “[email protected]”) and said:
We just received email of the document forwarded from Lin dong, who is not our agent anymore. Could you please inform us ways of payment and details associated. Thanks.
[4] Annexure “CW4” to Warren Affidavit
On 18 August 2023, the applicants filed the reinstatement application, together with an Affidavit of the applicant made on 18 August 2023.
APPLICATION FOR REVIEW
At the time the Registrar made the order dismissing the reinstatement application, he had power to do so pursuant to section 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) read together with the following parts of the Rules:
(a)rule 21.01;
21.01 Delegation of powers to Registrars
(1) For the purposes of subsection 254(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar (an approved Registrar) who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.
Note 1: Subsection 254(1) of the Act enables the Chief Judge to make Rules of Court delegating powers to a delegate or prescribed class of delegate. A Registrar is a delegate (see paragraph (b) of the definition of delegate in subsection 7(1) of the Act).
Note 2: In these Rules, Registrar means a Senior Registrar or Registrar of the Court (see the definition of Registrar in rule 1.05).
(b)table 21.1, Item 58
To order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding…
The combined effect of the above legislation is that a Registrar of this Court has delegated power to dismiss any claim for relief in the proceedings.
Section 256(1) of the Court Act has the effect that a party to proceedings in which the Registrar has exercised delegated powers under s 254 may apply to the Court for review of that exercise of power, with a prescribed time as follows:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) 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.
21.04 Procedure for review
(1) The review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
(2) In the review, the Court:
(a) may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(b) may with leave receive further evidence; and
(c) may receive as evidence:
(i) any transcript of the proceeding before the Registrar; or
(ii) if there is no transcript—an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.
The applicants did not apply to the Court for review within the timeframe prescribed by r 21.02 of the Rules, nor did they formally seek an extension of time in which to do so.
Upon the Review application having been filed, I made the following orders:
1.By 4:00pm on 16 October 2023 any party who elects for the application for review of a Registrar’s decision filed on 10 June 2023 (review application) to proceed to an oral hearing must notify the Court of that preference by email to the chambers of Judge Given at: [email protected], following which the matter will be listed for a hearing at a date to be advised.
2.In the event that no election is made pursuant to order 1, the parties are taken to have consented to the review application being heard and determined in chambers in its current form pursuant to, and for the purposes of, s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The applicants must file and serve an outline of written submissions in relation to the review application, including any application for an extension of time pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (EOT), by 4:00pm on 20 October 2023.
4.The first respondent must file and serve an outline of written submissions in relation to the review application and any EOT, by 4:00pm on 27 October 2023.
5.In the event that the applicants fail to comply with order 3 above:
a.order 4 above is vacated, and in lieu thereof the first respondent may file any written submission, including if only limited to the issue of costs; and
b.judgment is reserved to a time, and method, to be notified to the parties.
6.Otherwise, judgment is reserved from the date upon which the first respondent files written submissions pursuant to order 4 above to a time, and method, to be notified to the parties.
By an email to the Court on 11 October 2023, the applicants exercised the grant of leave to request that the matter proceed by way of in-person hearing.
As set out in AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 (AHH22), where an applicant has not sought review in time and in accordance with r 21.02 of the Rules, and fails to by the application itself, or in any other way (including by submissions, whether written or oral) to make such an application to the Court, then the review application is liable for dismissal as incompetent. As in AHH22, the first applicant has appeared before the Court today in accordance with his election to do so and, in the course of exchange with him, he has sought that time be extended.
The review application was filed 10 days out of the time prescribed by the Rules. The applicants have not formally provided an explanation for the failure to lodge an application within time nor an affidavit explaining the delay or why an extension should be granted pursuant to r 21.02(2)(a) of the Rules. From the Bar table at the hearing of the review application, the applicant said that he does not understand English and lives in a remote area. I am not particularly persuaded that this is a proper explanation for the failure to apply in time. I also note that the Affidavit in support of the review application was made on 29 September 2023. While that date is also outside of the time prescribed to file a review application under the Rules, there was no explanation as to why it took the applicants a further 7 days after executing the Affidavit in support to lodge the review application with the Court. I accept the submission of the Minister that it was for the applicants to ensure that they were aware of their review rights and any applicable time limits.
While there would not be any specific prejudice to the Minister if the extension of time were granted, the mere absence of prejudice alone is not a sufficient reason to grant an extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [349] per Wilcox J (Hunter Valley Developments).
The review application was listed at the earliest practicable opportunity, but not within the period that the Rules anticipate. There does not appear to be any detriment to the applicant arising from that delay. In circumstances where the applicant came before the Court, and that the Court had not been able to meet the aspirational timeframe contained within the Rules, I was overall of the view that it was in the interests of the administration of justice to extend time in order to enable the review application to be fully heard and determined. I made an order extending the time for the making of the review application up to, and including, 6 October 2023.
Time having been extended, the Court has before it a valid application for review of the Registrar’s decision taken in accordance with a delegated power.
Review principles and onus
This Court relevantly observed the following in AHH22 (supra) at [23] to [24]:
[23] As is now well-established, the exercise of the Registrar’s delegated power derives its validity from the availability of review by a judge of this Court: see Bechara v Bates (2021) 286 FCR 166 at [3] per Allsop CJ, Markovic and Colvin JJ. The Registrar’s order, which was made on 10 November 2022, took effect as though it were an order of a judge of this Court, on the basis that a judge may be asked to make an order in place of the exercise of delegated authority.
[24] While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Bechara v Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494, were helpfully distilled by the Full Court in Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
By the review application the applicant seeks the following orders:
1.The Order made by Registrar Carney be reviewed and quashed by the Federal Circuit Court judge.
2.My original application for judicial review of AAT decision under ref. SYG2222/2019 be reinstated.
3.Other orders that the court sees fit.
The effect of the review application is that the Court is hearing the reinstatement application de novo, not assessing the decision of the Registrar to determine whether it is affected by some error: see r 21.04(1) of the Rules and AHH22 (supra) at [24].
Unlike reviews of Registrar’s decisions for summary dismissal in which the Minister is the moving party by reason of having sought the dismissal[5], in the instant case the applicants are the moving party on both the Registrar review and reinstatement applications. That is because the applicants were the moving party before the Registrar.
[5] See AHH22 (supra) at [26]
Evidence
In support of the review application, the applicant filed an Affidavit which was affirmed by him on 29 September 2023 which says the following (errors in original):
1.I , Xiuming LIN, a farm owner, affirm that I am the main applicant in the current proceedings and I am authorised to make this affidavit on behalf of the second applicant Yufang CHEN who is my wife and presently overseas.
2.I would like to seek the review of the Registrar Carney's order made via AVL in Melbourne on 19 September 2023. I think it is utterly unfair for me as I lodged the reinstatement application in NSW and specifically asked to be heard in person not by AVL. But such reasonable request was rejected without any reason given. I would request the court to appoint a Federal Circuit Court Judge to review and quash such wrong order.
3.I also seek the court to find that Registrar Carney's order was unreasonable and therefore should be quahsed due to its failure to give me procedural fairness and natural justice as I have provided sufficient documentary evidence to explain my case and I have an arguable case for judicial review.
To the extent that the Affidavit addresses the explanation for the applicant’s non-attendance at a callover which caused the matter to be dismissed for want of appearance on 10 August 2023, it is relevant to the question before the Court. To the extent the Affidavit advances matters which allege error on the part of the Registrar in refusing to reinstate the matter, then for the reasons set out at [29] above, those are not pertinent to the question before the Court (see also [30] above).
The first respondent relies on the Affidavit of Carly Maree Warren affirmed 8 September 2023 (Warren Affidavit). The Court Book was received into evidence for the purpose of the review application and marked Exhibit “1R”. A bundle of documents comprised of a statement by a Ms Phyllis Wang, together with supporting documents, was received and marked as Exhibit “1A”. All the aforementioned material was received pursuant to r 21.04(2) of the Rules.
Reinstatement principles
Pursuant to r 17.05(2)(a) of the Rules, the Court has the power to set aside orders made in the absence of a party:
…
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; ...
The power to reinstate is a discretionary power which requires consideration of whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] per Flick, Robertson and Lee JJ. The Court’s discretion in respect of a reinstatement application ordinarily requires consideration of three factors and whether, on balance, they tend for or against the reinstatement: see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7].
Those factors, which are not an exhaustive list, usually are:
(a)whether the applicant has provided a reasonable excuse for his non-attendance at the hearing which was dismissed;
(b)whether the applicant’s substantive proceedings would have reasonable prospects of success if the proceedings were reinstated; and
(c)the existence and nature of any prejudice to the Minister.
Explanation for non-attendance
By the Affidavit of the first applicant filed in support of the application for reinstatement, he states that due to “communication breakdown” he was not properly notified and was “totally unaware” of the callover. I accept that the applicants may have been unaware.
However, at hearing before me the applicant was shown the originating application in this matter. He acknowledged that the document bore (at least) his signature and that the handwriting on the front page footer of the application is his own. The applicant accepted that he had, himself, written the Hotmail address on that application as being the email address for service in these proceedings. From the Bar table the applicant also said that he had been in Sydney on each of 8 and 9 August 2023, but was not in Sydney on 10 August 2023 which was the day of the callover. Given that the callover was listed by telephone, the physical location of the applicant does not seem to be a relevant factor in the applicants’ non-appearance.
The Minister says that the explanation proffered for the non-attendance before the Court on 10 August 2023 is unsatisfactory. The Minister says that it is not clear to what communication breakdown the applicants refer, given the notice of listing was sent to the Hotmail address given by them in their application, which is signed by both applicants and that it was the applicants’ responsibility to update their address for service if it was no longer current. The Minister acknowledges that the email address for service is the same as used by the applicants’ migration agent throughout the life of the visa including with the Department and the Tribunal phase, and that it appears that the applicants listed their former migration agent’s email address in the judicial review application, claiming it as their own (although the applicants have not explained why this is so). As such the applicants are said to have offered no “reasonable excuse” for their non-attendance and this weighs against reinstatement. I agree.
Unfortunate though it may be, the applicants seem (from the first applicant’s admission that it was he who proffered the Hotmail address in these proceedings) to have voluntarily given the Hotmail address as being their address for service. In doing so, they assumed the risk that if (for whatever reason) that email address was unmonitored emails and were not forwarded to them in a timely manner, that they may not be given crucial information in respect of their proceedings in this Court. Regrettably, that is precisely what came to pass. Even accepting the evidence of Ms Wang on its face, it remained the responsibility of the applicants to structure their involvement in the proceedings with a degree of diligence.
I am satisfied that ample notice was given to the applicants of the callover. The listing notice was sent to the Hotmail address on 27 July 2023, being 14 days before the callover. As is documented in the Warren Affidavit, the applicants were also sent reminders (again to the Hotmail address) in advance of that fixture.
The applicants, having taken a risk in providing an email address for service which was not theirs (or to which it appears they did not have access) must also take responsibility for the consequences thereof. As the Court found in Liu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 501 at [11], [35] and [51], non-attendance in such circumstances is not reasonably explained.
This weighs against reinstatement.
Prejudice
The Minister accepts that there is no prejudice to him if the proceedings were to be reinstated that could not be cured other than by an award of costs. If the proceedings were not reinstated, the applicants’ judicial review proceedings in this Court are at an end.
I accept that the absence of prejudice is not in itself sufficient or capable of supporting a conclusion that an order for reinstatement should be made: Hunter Valley Development (supra) at 349. Further, there is a significant public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15] to [17] per McHugh J.
In the present case, the question of prejudice weighs neutrally at this juncture. If, however, the applicants’ substantive grounds of review have sufficient merit as to weigh in favour of reinstatement, then the balance of prejudice might shift, because it would be more significant to shut the applicants out from proceedings in which they advance meritorious grounds.
Merits of the substantive application
The Minister contends that the application in this case does not have sufficient prospects to warrant reinstatement.
The substantive grounds of review raised in the originating application are as follows:
1.Circumstances not anticipated by relevant legislation.
2.The application of relevant legislation leads to unfair or unreasonable results in a particular case.
The Minister says these “grounds” are taken directly from the Tribunal’s decision at [27] (CB 122) and do not enjoy sufficient prospects to warrant reinstatement. In the latter respect, I agree.
The Tribunal correctly identified the criteria in cl 187.222 of Schedule 2 to the Regulations in relation to English language proficiency (CB 119 to 120 at [9] to [10]). In order to satisfy cl 187.222, at the time of the application, the applicant must have had “competent” English or have been a person in a class of persons specified by the Minister in an instrument to be exempt (CB 120 at [9] to [11]). To determine whether the applicant had “competent” English, the Tribunal referred to reg 1.15C of the Regulations and the relevant tests, scores and passports specified in the instrument made for the purposes of that sub-regulation (CB 120 at [11] to [12]).
The Tribunal assessed the evidence before it and noted that while the applicants submitted that the applicant’s income exempted him from the English language requirements, that exemption was removed on 1 July 2019 by IMMI 18/045 (CB 121 at [19]). Further, the exemption in 187.222 for applicants meeting the High Income Threshold was removed by the introduction of IMMI 17/058, which commenced on 1 July 2017.
As a consequence, the exemption was no longer available to the applicants.
The Tribunal was not satisfied that the applicant met cl 187.222 because there was no evidence that the applicant had undertaken a specified language test in the three years preceding the visa application; nor that he had completed at least five years of full-time study in a secondary and/or higher education institution where all tuition was delivered in English. It was also not satisfied that the applicant held a specified passport (CB 121 at [21]). I agree that these findings were open to the Tribunal on the evidence before it.
The Tribunal also correctly identified and applied the applicable legislative instruments in assessing the evidence and in circumstances where the applicant did not satisfy the relevant English language requirements or otherwise qualify for an exemption, the Tribunal’s finding that the applicant did not meet cl 187.222 was the only finding open to it. As such, the applicants’ substantive case does not have a sufficient prospect of success as to warrant reinstatement so they can be considered on a final basis. This weight heavily against reinstatement.
Overall assessment of reinstatement factors
In all the circumstances of this case, I am not satisfied that the applicants’ explanation for non-attendance at callover on 10 August 2023 is sufficiently persuasive. Having found that the application itself is also not sufficiently arguable as to warrant consideration on a final basis, I am also satisfied that there is no shift in favour of the applicants in terms of any prejudice which they might suffer if the matter was not reinstatement. As such, all factors which relevantly arise for consideration in this case in terms of reinstatement, are either neutral or way against the Court exercising its discretion to reinstate.
Overall, I am not satisfied that the interests of the administration of justice warrant these proceedings being reinstated.
CONCLUSION
As noted at [30] above, the applicants in this matter bear the onus of persuading the Court in the de novo hearing of the reinstatement application that the proceedings.
In doing so on a de novo basis, I have reached the same conclusion as did the Registrar, and would refuse the application reinstate. Accordingly, the application seeking to set aside the orders made by the Registrar on 19 November 2023 is dismissed.
I will hear the parties as to costs including whether the costs order made on 19 September 2023 requires amendment, by reason of having been made against the first applicant only.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 9 November 2023
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