Mangera v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 678
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mangera v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 678
File number: MLG 2563 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 2 August 2023 Catchwords: MIGRATION – Review of Judicial Registrar’s summary dismissal order – Extension of time to make application for review of Judicial Registrar’s decision granted in in the interests of justice – Adjournment application refused because medical material unpersuasive and no right to legal representation in civil matters – Review application dismissed because judicial review application had no reasonable prospects of success Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 190
Migration Act 1958 (Cth) s. 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.13, 21.02, 21.04
Migration Regulations 1994 (Cth) cl. 485.221
Cases cited: Kaur v Minister for Immigration and Border Protection (2015) 233 FCR 507; [2015] FCA 584
Mangera v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 529
Singh v Minister for Immigration and Border Protection [1017] FCA 217
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SZRQU v Minister for Immigration & Citizenship [2012] FCA 1234
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 27 July 2023 Date of hearing: 20 July 2023 Place: Melbourne Applicant: Appearing in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 2563 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET KAUR MANGERA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
2 August 2023
THE COURT ORDERS THAT:
1.The time for the making of the application seeking review of the decision of the Judicial Registrar made on 20 June 2023 is extended to 5 July 2023.
2.The Applicant’s application for an adjournment is refused.
3.The application for review filed on 5 July 2023 is dismissed.
4.In addition to order 2 made by Judicial Registrar Cummings on 20 June 2023, the Applicant pay the First Respondent’s costs of the review fixed in the sum of $1,400.
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 CHAMPION:
INTRODUCTION AND SUMMARY
This is an application for a review of a Judicial Registrar’s decision summarily dismissing the Applicant’s judicial review application.
In summary, the Applicant’s review application will be dismissed. The judicial review application has no reasonable prospects of success because the Applicant did not satisfy the mandatory criterion set out in cl. 485.221(a) of Schedule 2 to the Migration Regulations 1994 for the grant of a Temporary Graduate (Class VC) (Subclass 485) Visa in the Graduate Work Stream (CB12-27). The mandatory criterion required that the Applicant had satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. The Applicant did not apply for the Visa within that 6 month application window and applied for the Visa approximately 8 months after she satisfied the Australian study requirement. The uncontroverted evidence before the Tribunal that the Applicant completed her Diploma of Hospitality Management on 10 October 2018 (CB65), more than 6 months before she applied for the Visa on 6 June 2019. The Tribunal had no discretion to extend time because of the Applicant’s extenuating circumstances. My reasons are below.
EXTENSION OF TIME APPLICATION
Rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) prescribes that an application for review of a Registrar’s decision must be made within 7 days or within such further time as the Court allows. The Applicant made her application for review of the Registrar’s decision out of time on 5 July 2023, some 8 days out of time. In this case, where the delay is short and the First Respondent claims no prejudice by reason of the short delay, justice will be done if an extension of time is granted: WAAD v. Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]. I will extend time for the bringing of the application for review of the Judicial Registrar’s decision.
BACKGROUND
On 5 September 2015, the Applicant arrived in Australia on a student visa (CB34).
On 6 June 2019 the Applicant (Applicant) applied for the Visa.
On 6 July 2019, a delegate of the Minister (Delegate) refused to grant the Applicant the Visa because she did not satisfy cl. 485.221(a) of Schedule 2 to the Regulations which required that the Applicant satisfy the “Australian study requirement in the period of 6 months immediately before the day the application was made”.[1] The Applicant had not completed any of the courses of study upon which she relied to satisfy the mandatory criterion for the Visa in the relevant 6 month time window before her application.
[1] The Cl. 485.221 criterion calls up the defined phrase “Australian study requirement” and the defined term “completed”: reg. 1.15F(1) and reg. 1.15F(2). It is not necessary to extract the definitions in these reasons.
On 19 October 2022 the Tribunal affirmed the Delegate’s decision to refuse the Visa because the Applicant did not satisfy the criterion in cl. 485.221(a) (CB 109-115).
On 21 November 2022 the Applicant filed an application for judicial review of the Tribunal’s decision in this Court pursuant to s. 476 of the Migration Act 1958 (Cth).
The Minister made an application that the matter be summarily dismissed pursuant to r. 13.13(a) of the Rules because the judicial review application had no reasonable prospects of success.
On 20 June 2023 Judicial Registrar Cummings granted the Minister’s summary dismissal application: Mangera v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 529.
The Applicant seeks a de novo review of the Judicial Registrar’s decision: r. 21.04 of the Rules.
Refusal of the adjournment application
On 14 July 2023 the Applicant sent an email to my Chambers seeking an adjournment of the hearing. She orally pressed her adjournment application at the commencement of the hearing on 20 July 2023. She relied on two matters in her adjournment application: first that she was ill, and, secondly, that she did not have (but was seeking) legal representation. I refused the adjournment application and said I would incorporate my reasons into the reasons for judgment.
In SZRQU v. Minister for Immigration & Citizenship [2012] FCA 1234 Katzmann J dealt with an application for adjournment both for reasons of illness and absence of legal representation.
Illness
Katzmann J noted that illness may be a reason justifying an adjournment. In a consideration of whether a Tribunal’s refusal of an adjournment constituted jurisdictional error (as contrasted to the exercise of the court’s discretion to grant an adjournment), Katzmann J at [19] referred to circumstances in which an applicant who was present was “genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in fit state to give evidence or present arguments” as warranting an adjournment. In this case, the Applicant relied on a letter of referral from Dr Gurvinder Brar dated 12 July 2023 which said that “she has been feeling anxious and stressed, also has sleep disturbance. I believe she needs psychologist input for further management” (Exhibit A1). In addition, she relied on a psychologist’s report dated 18 July 2023 of ‘better still… Psychological and Assessment Services’ prepared by Mr Edwin Kleynhans, a psychologist (Exhibit A2). Mr Kleynhans opined that the Applicant “told me that she is not in the right state of mind which would be difficult for her to give consistent evidence at a FCC hearing, a notion that I would support”: [17]. Further, at [19], he stated that “she would like to defer the hearing until I have assessed her mental state adequately and for her to receive stress management counselling from a psychologist”. Mr Kleynhans did not identify any treatment plan or timeframe for this to occur.
As to the Applicant’s application for an adjournment because of her ill health, despite any ill health the Applicant had initiated her own review application as to the Judicial Registrar’s decision and the Applicant had forwarded a short written outline of argument before the hearing. She was present and participated in the hearing in support of her own application. As to Mr Kleynhans’ concern about the Applicant giving evidence, the Applicant was not required to give any witness evidence. This was an application solely based on questions of law. In my view, Mr Kleynhans’ report did not establish why or how the Applicant was unable to effectively participate in the hearing: see Singh v Minister for Immigration and Border Protection [2017] FCA 217 at [13].
Absence of legal representation
The Applicant also sought an adjournment so that she could obtain legal representation. The Applicant issued her application for judicial review in November 2022. She submitted that she had unsuccessfully sought legal aid assistance. She sought private legal assistance for the first time on 19 July 2023, the day before the scheduled hearing. The Applicant offered no satisfactory explanation for why she had delayed in seeking legal assistance. There is no right to legal representation in a civil case and procedural fairness does not require it: SZRQU, [24] (Katzmann J).
Case management issues
Accepting that case management principles must yield to the justice of the case, I also took into account that the overarching purpose of the legislated civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 190. This is a case which concerns a decision of the Delegate first made on 6 July 2019, more than four years ago. The backlog of migration cases in this Court is notorious. Any adjournment would necessarily delay the hearing of other applications.
In all the circumstances, I refused the adjournment application.
At the conclusion of the hearing, however, I ordered that the Applicant have a period of 7 days in which to file any further reply submissions in response to the First Respondent’s oral submissions at the hearing. Pursuant to that order, on 27 July 2023, the Applicant sent a further submission via email to my chambers. The Applicant’s submissions again acknowledged that she had not lodged her Visa application within six months after completion of her study.
THE TRIBUNAL PROCEEDING
The Tribunal confirmed the Delegate’s findings that that the Applicant had completed the following degree, diploma or trade qualifications upon which she relied to support her Visa application as follows (CB112, [3]):
(a)a Certificate III in Commercial Cookery on 1 November 2017;
(b)a Certificate IV in Commercial Cookery on 27 March 2018; and
(c)a Diploma of Hospitality Management on 10 October 2018.
The Applicant did not contend that she had completed any relevant Australian study requirement within the 6 month time window immediately preceding her Visa application.
Before the Tribunal, the Applicant submitted that there were “extenuating circumstances” as to why she had not applied for the Visa within 6 months of completing her most recent diploma, the Diploma of Hospitality Management on 10 October 2018 (CB 113, [9]). The Applicant submitted that it was “culturally accepted” that her husband would make significant “arrangements” and that she became “completely financially dependent on her husband and his family” and that her husband and his family “took charge” of obtaining advice from a migration agent as to the time requirements of her Visa application (CB 113, [10]-[11]). The Applicant said that “by late 2018 … her husband was threatening and abusive to her, and about her family.” She subsequently obtained an Apprehended Violence Order against her husband. She was “distressed and depressed and the visa application is not something she had control of” (CB 113, [12]).
The Applicant’s explanation of her personal circumstances (while giving rise to real compassionate considerations) was understandable but not directed to the issue of whether she satisfied the mandatory criterion for the grant of the Visa. The Tribunal correctly considered that the dispositive issue was whether the Applicant satisfied the primary criteria for the Visa, including the mandatory criterion set out in cl. 485.221(a) (CB 113-114 [15]), specifically whether the Applicant had satisfied the Australian study requirement in the period of 6 months immediately before the day she made her Visa application. The Tribunal held (correctly in my view) that cl. 485.221(a) “did not confer any discretion on decision-makers to waive or overlook this requirement, even when there might be compassionate and/or compelling reasons why an applicant had not lodged the Visa application in the six-month period” (CB 113 [13]).
The Tribunal found that the Applicant (CB 115 [22]):
[…] did not satisfy the Australian study requirement in the period of 6 months immediately before she made her visa application on 6 June 2019, as her visa application was lodged approximately 8 months after she completed her Diploma. The applicant has not disputed this, and the Tribunal accepts that she did not lodge her visa application earlier initially because she was unaware of the strictness of cl. 485.221 in relation to the time period applicable to the Australian study requirement. The Tribunal has some sympathy for the applicant, particularly given the length of her studies and residence in Australia, her aspiration for work in her field of hospitality in Australia […] and her difficult family circumstances at the time that she made her visa application, but has no power to overlook or waive the requirements of cl. 485.221, which are very specific and contain no discretion to (for example) take into account a person’s exceptional or compassionate circumstances.
The Tribunal affirmed the Delegate’s decision.
JUDICIAL REVIEW APPLICATION
On 21 November 2022, the Applicant filed her application for judicial review of the Tribunal’s decision.
Does the substantive judicial review application have reasonable prospects of success?
Relevant principles
The First Respondent as the moving party bears the onus of persuading the Court that the application ought to be summarily dismissed because it does not have reasonable prospects of success.
In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 French CJ and Gummow J explained the relevant principles as to the summary dismissal of a proceeding which had no reasonable prospects of success at [22] as follows:
The section … will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment.
(Emphasis added).
The Applicant’s grounds
The Applicant’s originating application included 11 grounds of review, which comprise a narrative account of the Applicant’s concerns about the Tribunal’s reasons.
The Applicant does not challenge the Tribunal’s factual findings (CB112, [3]; CB113, [9]) that she had not completed a relevant course of study in the 6 months immediately before the day she made the Visa application.
Grounds 1-9 itemise the Applicant’s grievances that the Tribunal did not consider her extenuating circumstances for not applying for the Visa within 6 months of completing her course of study.
Ground 1 is that “the tribunal did not take into account the history of my studies and work in Australia…” Ground 2 is that the Tribunal did not consider that she was the victim of “domestic violence” and that she relied on a migration agent’s advice. Ground 3 is that the Tribunal failed to consider “trauma”. Ground 4 is that the Tribunal failed to consider “mental stress”. Ground 5 alleges that the Tribunal filed to consider the “money and time” spent on previous courses. Ground 6 is that the Tribunal failed to consider the importance of the Visa to the Applicant’s “career”. Ground 7 alleges that the Tribunal did not consider that the Applicant stood to lose money. Ground 8 is that the Tribunal did not take into account “the importance of trade qualification”. Ground 9 is that the Tribunal did not acknowledge that the Applicant “always complied with […] student visa conditions”.
None of these grounds has reasonable prospects for success. Each of Grounds 1-9 concerns the Applicant’s personal circumstances. None of the grounds raise an issue which should be permitted to go forward to trial as to whether the Tribunal made a jurisdictional error. The grounds do not recognise the significance of the fact that the Applicant’s own concession that she had not completed a course of study in the 6 months before she applied for the Visa presented an insurmountable flaw in her own case.
In Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [41] Mortimer J (as her Honour then was) observed of the text of the relevant regulation under consideration that it focused on “historical facts”. Her Honour held: “these historical facts either exist at the time of application, or they do not”. Those observations apply equally to cl. 485.221(a): the historical facts were either that the Applicant satisfied the Australian study requirement within the relevant 6 month time window or she did not. The criterion renders on applications in which the Applicant has not satisfied the Australian study requirement in the 6 months immediately before the day of the application “futile”: see Kaur at [42].
Ground 10 is an allegation of bias in the nature of pre-judgment. There is no material which supports this allegation. This ground does not have reasonable prospects of success.
Ground 11 is a statement that the Applicant will provide further grounds. This is not a proper ground of review.
Grounds 1-11 do not disclose any reasonable cause of action. None of these grounds grapple with the reality of the mandatory criterion of cl. 485.221(a) and the fact that the Applicant had not met the Australian study requirement in the period of 6 months immediately before the day of the Visa application which was dispositive of her Tribunal application. As to the judicial review application, this is a case in which there was “unanswerable or unanswered evidence of a fact fatal to the pleaded case” (Spencer, above). All the grounds have no reasonable prospects of success because they fail to recognise that compelling extenuating circumstances were no substitute for the Applicant meeting the mandatory criterion in cl. 485.221(a).
CONCLUSION
The application for review of the Judicial Registrar’s decision will be dismissed. In accordance with the costs application in the First Respondent’s written outline, I will order that the Applicant pay the First Respondent’s costs of the review application fixed in the sum of $1,400.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 2 August 2023
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