MALLA v Minister for Immigration
[2020] FCCA 470
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALLA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 470 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – show cause – Skilled (Provisional) (Class VC, subclass 485) visa – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 |
| First Applicant: | TRIVENI MALLA |
| Second Applicant: | SUNDARAVASU MALLA |
| Third Applicant: | SREE GAUTHAM RIYAN MALLA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1920 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 3 March 2020 |
| Date of Last Submission: | 3 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Advocate for the applicants: | In person |
| Solicitors for the applicants: | None |
| Counsel for the respondents: | Ms Mills |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicants’ application filed on 2 July 2018 be dismissed.
The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1920 of 2018
| TRIVENI MALLA |
First Applicant
| SUNDARAVASU MALLA |
Second Applicant
| SREE GAUTHAM RIYAN MALLA |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration and Refugee Division of the Administrative Appeals Tribunal (“the tribunal”) dated 8 June 2018. The tribunal affirmed a decision of the delegate (“the delegate”) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) not to grant the applicants a Skilled (Provisional) (Class VC, subclass 485) visa (“the visas”).
By orders made by consent on 25 October 2019, this matter was referred to a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Background
The applicants, being Indian citizens, applied to the Department of Home Affairs (“the department”) for the visas on 24 December 2017.[1]
[1] Court book pages 1 to 16.
Notably, in that application, the first applicant answered “no” in response to the question as to whether she had applied for an Australian Federal Police check (“AFP check”) in the twelve months immediately before the day the application was made.[2]
[2] Court book page 1.
The criteria for the grant of a subclass 485 visa are set out in part 485 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The main criteria must be satisfied by at least one applicant. Members of that applicant’s family as additional applicants for the visas need only satisfy the secondary criteria.
By letter dated 23 January 2018, the department advised the applicants their application had been refused.[3] The decision is set out at court book pages 51 to 54.
[3] Court book pages 44 to 50.
The delegate refused to grant the visas as the first applicant had not applied for an AFP check during the 12 months prior to the application being made.[4]
[4] Court book page 51.
Clause 485.213 of the Regulations relevantly provides:
When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
It was on this basis that the delegate refused to grant the visas in deciding:
a)the first applicant failed to meet the requirements of regulation 485.213 of the Regulations;[5] and
b)the second and third applicants were not members of a family unit of a person whom holds a subclass 485 visa.[6]
[5] Court book pages 51 and 52.
[6] Court book pages 52 to 54.
On 24 January 2018, the first applicant contacted a delegate of the Minister to request reconsideration of the decision and to advise that she had applied for an AFP check.[7]
[7] Court book pages 55 and 56.
On 10 February 2018, the delegate responded that the decision was lawful and was unable to be reviewed by the Minister.[8]
[8] Court book pages 57 and 58.
On 10 February 2018, the applicants lodged an application for a review of the delegate’s decision with the tribunal via a registered migration agent.[9] Annexed to that application was a copy of the delegate’s decision, written submissions and AFP checks for the first and second applicants dated 26 January 2018.
[9] Court book pages 59 to 66.
In those written submissions, the applicants’ representative stated that:
a)at the time of making their visa application, the applicants believed they were able to submit the AFP checks at a later date; and
b)clause 485.213 did not require the AFP checks to be provided at the time of making the visa application.[10]
[10] Court book page 62.
On 7 May 2018, the tribunal wrote to the applicants’ representative advising that a hearing had been scheduled for 24 May 2018.[11]
[11] Court book pages 80 to 90.
On 14 May 2018, the applicants’ representative provided supplementary written submissions and supporting documents to the tribunal.[12]
[12] Court book pages 91 to 102.
On 24 May 2018, the applicants appeared before the tribunal with the assistance of their representative.
At the tribunal hearing, the first applicant gave oral evidence that she and her husband had failed to provide AFP checks at the time of lodging their applications because her husband’s passport had recently expired.[13] This was relevant as in order to lodge a request for an AFP check, they were required to have valid passports.
[13] Court book page 148 at paragraph [9].
The first applicant further stated that she only had six days remaining on her student visa at the time of making the application and was therefore unable to wait for a new passport to be issued for her husband.[14]
[14] Court book pages 148 and 149 at paragraph [9].
The tribunal’s reasons
After setting out the background to this matter, the tribunal stated that the applicants did not dispute failing to submit evidence that they had made an application for the AFP checks within the timeframe specified in clause 485.213.[15]
[15] Court book page 151 at paragraph [22].
The tribunal further noted that there was no evidence before it that the applicants had applied for the AFP checks during the twelve months immediately before the day on which their visa application was made.[16]
[16] Court book page 151 at paragraph [22].
The tribunal considered but did not accept the applicants’ representative’s interpretation of clause 485.213 that the AFP checks were not required to be submitted at the time the visa application was lodged.[17]
[17] Court book page 148 at paragraph [13], page 150 at paragraph [19] and page 151 at paragraph [21].
It was on this basis that the tribunal found that:
the Tribunal must find that the first named applicant did not apply for an AFP check during the 12 months immediately before the day on which her visa application was made, nor did each person named in the application over 16 years of age apply for an AFP check during the 12 months immediately before the day on which the visa application was made.[18]
[18] Court book page 151 at paragraph [23].
The tribunal went on to say:
The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl. 485.213.[19]
[19] Court book page 151 at paragraph [23].
In ultimately affirming the decision not to grant the visas to the applicants, the tribunal held that:
…to be successful, the first named applicant must meet cl. 485.213 in the way that the provision sets out, and it further finds that she did not do so.
Therefore the first named applicant does not satisfy cl. 485.213.
Because the first named applicant does not satisfy cl. 485.213, she does not satisfy the criteria for the grant of a Subclass 485 visa. Therefore the secondary applicants cannot satisfy cl. 485.311 of Schedule 2 to the Regulations because they are not members of a family unit of a person who holds a Subclass 485 visa.[20]
[20] Court book page 151 at paragraphs [24] to [26].
Proceedings before this Court
The application filed in this court on 3 March 2020 raised the following seven grounds of review:[21]
a)Ground one: failing to distinguish Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 (“Anand”);
b)Ground two: failing to follow Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (“Berenguel”);
c)Ground three: refusing to accept the AFP checks, which was unfair and absurd in the manner identified in Berenguel and unreasonable in the manner identified in Minister for Immigration and Citizenship v Li (2010) 249 CLR 332; [2013] HCA 18 (“Li”);
d)Ground five: failing to exercise its discretion pursuant to section 359 of the Migration Act 1958 (Cth) (“the Act”) to receive and have regard to relevant information constituted by the copies of the AFP checks;
e)Ground six: acting unreasonably by failing to act according to substantial justice and the merits of the case as required by section 353(b) of the Act when it refused to receive and have regard to the AFP checks;
f)Ground seven: refusing to accept and have regard to the AFP checks, which was unreasonable and constituted an improper exercise of power which went to its jurisdiction, having regard to section 353(a) of the Act, which provides that the tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence; and
g)Ground eight: failing to consider whether clause 485.223 of the Regulations was inconsistent with sections 55, 56, 353, 357A and 359 of the Act.
[21] Noting a numbering error appears to have omitted a ground four.
As stated above, consent orders were made on 25 October 2019 which, as well as providing for the application to be listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on a date to be fixed, permitted the applicants to file and serve any amended application with proper particulars of the grounds and written submissions 28 days prior to the hearing.
Notwithstanding these orders, the applicants did not file any amended application, nor did they better particularise their application or file any written submissions.
Rule 44.12 of the Rules relevantly provides:
(1)At a hearing of an application for an order to show cause, the Court may:
(a)If it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or
(b)If it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)Without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
At the commencement of the proceedings, I explained to the applicants that this was a ‘show cause’ hearing and if the applicants did not satisfy the court that their application had raised an arguable case, the court had the power to dismiss the application.
Rule 44.13(1) of the Rules also relevantly provides:
At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.
As stated above, the applicants did not have legal representation and submissions were made by the first applicant.
At the hearing, after explaining the nature of the proceedings before this court, the first applicant was invited to make any further submissions in support of the application for review.
The applicant noted that she and her husband were unable to apply for an AFP check at the time of making the application as her husband’s passport had expired and they were waiting for it to be renewed.
When invited to make oral submissions as to what the applicants claimed were the legal error made by the tribunal under each ground of her application, the applicant stated that:
a)she should have been given more time to provide the AFP check;
b)she had provided the AFP check but conceded that it was provided ten days late; and
c)the failure to provide the AFP check was a mistake.
Counsel for the Minister relied upon the written submissions filed on 18 February 2020. In addition, in response to the applicant’s oral submissions, counsel for the Minister made the following further submissions:
a)the applicant provided the AFP check to the tribunal, not the Minister;
b)pursuant to clause 485.213 of the Regulations, the AFP check ought to have accompanied the visa application on 24 December 2017 and, given the AFP checks were not provided until 10 February 2018, the AFP checks were provided a substantial period of time after the filing of the visa application and not merely “ten days late” as asserted by the applicant;
c)neither requirement of clause 485.213 of the Regulations was satisfied by the applicant; and
d)failure to comply with clause 485.213 meant that the visa could not be granted.
Grounds one and two
Grounds one and two were that the tribunal failed to determine the review application according to law on the basis that:
a)it failed to distinguish Anand (ground one); and
b)it failed to follow Berenguel (ground two);
In Anand, the court had to consider what was meant by ‘accompanied by’ in clause 487.216 which was in similar terms to clause 485.213.
In that case, Katzman J made the following observations and findings:
It seems to me that the purpose of requiring that the evidence be submitted at the time of the application is to ensure that the results of the check are available to the Minister when he makes his decision…
It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application… Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is some force in… (the) submission that there is some flexibility or elasticity in the phrase ‘accompanied by’ …[22]
[22] Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 at [26]-[27].
Katzman J went on to note that there are limits to that flexibility. Her Honour said:
…there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. …But the words ‘accompanied by’ are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps…[23]
[23] Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; [2013] FCA 1050 at [28].
In Anand, the applicant had in fact applied for the AFP check before he submitted his application for a visa, and the AFP certificate was issued some seven days later. However, the applicant did not provide evidence of this until 5 August 2009, two days after the delegate’s decision to refuse the visa and some five months after he had lodged his application for a visa. Ultimately, Katzman J concluded that this did not meet the temporal requirements of clause 487.216.
In this case, it is not in dispute that:
a)the applicants had not applied for the AFP check before filing their application;
b)the applicants did not advise the Minister that they had applied for an AFP check until the day after the delegate’s decision; or
c)perhaps even more importantly, the applicants did not provide evidence of their AFP checks until they filed their application for review with the tribunal on 10 February 2018, some seven weeks after the application was filed.
There is no proper basis on which the decision in Anand could be distinguished.
Moreover, counsel for the Minister relied on the decision of Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (“Khan”) in which his Honour Tracey J (with whom Charlesworth and Derrington JJ agreed) reviewed the temporality of clause 487.216 of the Regulations and considered the application of Anand.
After making reference to Anand, his Honour Tracey J said:
Her Honour took a benign view of the work ‘accompanied’. The stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted. There would seem to be no need to stretch the concept, given that an application for a visa may be delayed until the applicant has, in his or her possession, evidence that the skills assessment has been applied for. Moreover, a visa application not accompanied by the evidence may be withdrawn and a fresh application made, once the evidence becomes available.
The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
The test is objective.[24]
[24] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [14]-[16].
Importantly, Tracey J went on to say:
Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign.[25]
[25] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [17].
Although Khan concerned the requirement that a visa application be accompanied by a skills assessment, the reasoning equally applies in this case.
As in Khan, in this instance, the fact that the applicants applied for a visa before they were in a position to apply for the AFP check is not determinative. The only question was whether the application was accompanied by evidence that the applicants had applied for an AFP check in the twelve months prior to the application.
Not only did the applicants fail to provide such evidence accompanying their visa application, they in fact did not apply for the AFP check within the twelve months prior to the visa application, having only applied after the visa application had been made.
Accordingly, the requirements of clause 485.213 were not met.
For these reasons, ground one does not raise an arguable case of jurisdictional error.
As to ground two, in Berenguel, the High Court considered the criterion of clause 885.213 which needed to be satisfied ‘at the time of application’.
The High Court stated that:
The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cl 885.214 and 885.215 (emphasis added).[26]
[26] Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [24].
Moreover, the High Court further stated that although the heading under which clause 885.213 appeared stated ‘Criteria to be satisfied at the time of application’, ‘the heading does not connect grammatically to its terms.’[27]
[27] Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [26].
Berenguel is distinguishable from this case.
In Berenguel, the High Court expressly contrasted clause 885.213 (which it was considering) with clauses 885.214 and 885.215, the latter requiring that a visa application be “accompanied by” certain documents. The words “accompanied by” provided the temporal requirement necessary to connect the time of application with the time of the provision of the relevant documents. The latter provisions being, relevantly, in the same terms as clause 485.213.
In addition, in Khan, after referring to [17] of the High Court decision in Berenguel, Charlesworth J said:
The regulation at issue in the appellant’s case – that is cl 485.223 – is not relevantly different from the two provisions that were contrasted by the High Court in that passage. The words ‘accompanied by’, the High Court found, at least implicitly, gave the necessary grammatical connection to the words ‘time of visa criterion’. It was that grammatical connection that was missing in relation to the regulation then under the Court’s consideration. It is for that reason that I consider the decision of the High Court in Berenguel affords no assistance to the appellant, and in fact presents the appellant with some difficulty.[28]
[28] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [31].
Those comments equally apply to the applicants in this case.
For these reasons, the decision in Berenguel does not support the applicant’s case and ground two does not raise an arguable case of jurisdictional error.
Ground three
The third ground of review was that the tribunal erred by refusing to accept the AFP checks, which was unfair and absurd in the manner identified in Berenguel and unreasonable in the manner identified in Li.
In Berenguel, the High Court said:
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred.[29]
[29] Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [26].
Those comments only applied to the provisions which were the subject of consideration in that case.
For the reasons discussed above, the criterion being considered in Berenguel are distinguishable from the type of provision which applies in the present case.
The High Court did not establish any general principle that consideration of fairness or absurdity of outcome are to govern the assessment of whether or not a temporal requirement exists.
As set out above, clause 485.213 requires the provision of evidence that the applicants have applied for an AFP check to accompany the application for a visa. I accept the Minister’s submission that notions of fairness may not be imported into the objective assessment required as to whether this condition has been met. As noted by Tracey J in Khan:
The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.[30]
[30] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15].
…
The law may operate harshly for the very reason that it give primacy to considerations of administrative efficiency of administrative efficiency and the need for visa applicants to assume responsibility for putting in train external assessment process before the visa application is made.[31]
[31] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [22].
A similar analysis applies equally in the present case.
Similarly, the applicant’s argument based on the decision in Li is misconceived. The principle in Li relates to the tribunal’s exercise of a discretionary power.
Clause 485.223 does not leave any discretion open to the decision maker in determining whether, at the time the visa application was made, the applicant provided evidence that the AFP checks had been applied for during the previous twelve months.
As stated by Tracey J in Khan:
Whether or not a visa application is accompanied by the necessary evidence may involve an evaluation of evidence, but it does not involve the exercise of a discretion of the kind that would attract the principles in Li.[32]
[32] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [20].
Again, this reasoning equally applies in the case before me.
For these reasons, ground three does not raise an arguable case of jurisdictional error.
Ground four
No ground four was raised.
Ground five
The fifth ground of review was that the tribunal erred by failing to exercise its discretion pursuant to section 359 of the Act to receive and have regard to relevant information constituted by the copies of the AFP checks.
Section 359 of the Act provides the tribunal with the power to obtain information that it considers relevant and must have regard to that information in making its decision.
In this case, there was no information for the tribunal ‘to get’ as the AFP checks were ultimately provided to it by the applicants.
More importantly however, for the reasons discussed earlier, the proper construction of clause 485.213 required that the visa applications be accompanied by the AFP checks.
The later provision of those checks did not cure the defect. Nor could the later provision of the AFP checks cure the fact that the AFP checks provided had not been obtained in the twelve months prior to the filing of the application.
For these reasons, ground five does not raise an arguable case of jurisdictional error.
Grounds six and seven
The sixth ground of review was that the tribunal acted unreasonably by failing to act according to substantial justice and the merits of the case as required by section 353(b) of the Act when it refused to receive and have regard to the AFP checks.
The seventh ground of review was that the tribunal erred by refusing to accept and have regard to the AFP checks, which was unreasonable and constituted an improper exercise of power which went to its jurisdiction, having regard to section 353(a) of the Act, which provides that the tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence.
Section 353 of the Act provides that, in conducting its review, the tribunal:
a)is not bound by technicalities, legal forms or rules of evidence; and
b)shall act according to substantial justice and the merits of the case.
There is nothing in section 353 which empowers the tribunal to disregard the objective requirements of clause 485.213.
Therefore, grounds six and seven do not raise an arguable case of jurisdictional error.
Ground eight
The eighth ground of review was that the tribunal failed to determine the review application according to law as it failed to consider clause 485.223 of the Regulations was inconsistent with sections 55, 56, 353, 357A and 359 of the Act.
As clause 485.223 is of no relevance in this matter, I have assumed that the reference to clause 485.223 was a typographical error that ought to have referred to clause 485.213.
In any event, there was no evidence or substantive argument before the tribunal that clause 485.213 is inconsistent with sections 55, 56, 353, 357A and 359 of the Act and I do not find that there is any such inconsistency.
For these reasons, ground eight does not raise an arguable case of jurisdictional error.
Considerations and conclusion
As stated, this matter was listed for a show cause hearing.
As noted by Judge Whelan in MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 at [13] and Judge Smith in SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [10], the Court’s power under rule 44.12(1)(a) of the Rules is in the form of summary dismissal. Moreover, such a power ought to be exercised with caution.
As noted by French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 (“Spencer v Commonwealth”):
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 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. …
More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow , Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following…:
[57] … Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (emphasis added).[33]
[33] Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at [24].
Even where the court is satisfied that there is no arguable case, it still must consider whether to exercise its residual discretion as to whether or not to dismiss the application.[34]
[34] Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328 at [19].
I have had regard to the fact that:
a)although the applicants represented themselves before this court, they did have the opportunity to amend their application and file written submissions, but chose not to do so; and
b)as noted in SZUTB:
…the objects of the (Federal Circuit Court Rules) include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay, expense and technicality (and)… this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.[35]
[35] SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [18].
These factors, together with the findings I have made regarding the absence of an arguable case arising from the applicant’s grounds of review, lead me to conclude that it is appropriate in this case to exercise the court’s discretion and dismiss the applicants’ application.
I therefore find that this application ought to be dismissed under rule 44.12(1)(a) of the Rules and the applicants pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 5 March 2020
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