Monia v Minister for Immigration and Multicultural Affairs (No 2)

Case •

[2024] FedCFamC2G 812

•

9 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Monia v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 812

File number: MLG 1010 of 2023
Judgment of: JUDGE FORBES
Date of judgment: 9 August 2024
Catchwords: MIGRATION – application for review of Registrar’s decision – where extension of time required to seek review of Registrar’s decision – consideration of matters relevant to exercise of discretion – where substantive application for judicial review has no reasonable prospects – extension of time refused
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, 21.02

Cases cited:

AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426

Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 244

Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616
Division: Division 2 General Federal Law
Number of paragraphs: 24
Date of hearing: 9 August 2024
Place: Melbourne
Applicants: In person
Solicitor for the Respondents: Ms Rath; Sparke Helmore

ORDERS

MLG 1010 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MONIA

First Applicant

SHARANJEET SINGH

Second Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

9 AUGUST 2023

THE COURT ORDERS THAT:

1.Leave be granted to the applicants to make an oral application for an extension of time to seek review of the decision of Judicial Registrar Cummings made on 27 June 2024.

2.The application for the extension of time to seek review of the Registrar's decision is dismissed.

3.The name of the First Respondent be changed to the “Minister for Immigration and Multicultural Affairs”.

4.The Applicants pay the First Respondent’s costs in the fixed sum of $1,000.

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
(ex tempore revised from transcript)

JUDGE FORBES

INTRODUCTION

  1. These are reasons explain why the Court has refused the applicants’ application for an extension of time to seek review of a Registrar’s decision. Prior to publication, my ex tempore reasons were revised to correct grammatical errors and to include any necessary references to legislation and case law. Headings have been added to improve readability.

  2. In the matter before the Court today, the applicant Monia, and the second applicant Mr Singh, appeared unrepresented. Ms Rath appeared on behalf of the Minister.

  3. The applicants seek review of the Judicial Registrar’s decision made on 27 June 2024. In that decision, Judicial Registrar Cummings summarily dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (AAT).  Judicial Registrar Cummings held that the applicants did not have reasonable prospects of successfully prosecuting their application for review of the AAT decision, and on that basis he summarily dismissed[1] the application pursuant to rule the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules).

    [1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) r 13.13(a)

  4. A party seeking a review of a Registrar's decision must make an application for review within seven days of that decision[2]. Judicial Registrar Cummings' decision was made on 27 June 2020.  However, the application for review of that decision was not filed until 25 July 2020. That is, the application for review was filed 22 days out of time.

    [2] FCFCOA Rules r 21.02

  5. In the absence of an application for an extension of time, the application before the Court today would be incompetent[3].  However, I permitted the applicants to make an oral application for an extension of time, and the Minister did not oppose it. For the sake of clarity, while the Minister does not oppose the application being made, the Minister does oppose the extension of time being granted.

    [3] Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616 at [15], [18]-[19] per Judge Vasta

  6. It is well established that the Court has a broad discretion under the Rules to extend time for a review[4] and the Court may allow an oral application for an extension of time to be made at the hearing[5], which is what happened today.

    [4] FCFCOA Rules r 21.02

    [5] AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [12] per Judge Given

    BACKGROUND

  7. The background to this case is not controversial and is set out at paragraphs [5] to [20] of the Minister's written outline as follows (including Court Book references):

    “5. On 7 September 2018, the first applicant, a citizen of India, applied for a Training (Class GF) (Subclass 407) visa (visa) sponsored by A Orlando (Victoria) Pty Ltd (sponsor) in the occupation of Hairdresser (ANZSCO 391111). The first applicant’s husband was included in the visa application as a member of the first applicant’s family unit (Court Book ‘CB’ 1-14). 

    6. On 11 October 2018, the sponsor’s nomination application in respect of the applicants was refused (first nomination decision) (CB 35). On the same day, a delegate of the Minister (delegate) invited the applicants to comment on the information that the first applicant was not the subject of an approved nomination which was required for the grant of the visa (CB 26-29). The applicants did not respond.

    7. The sponsor applied to the Administrative Appeals Tribunal (Tribunal) for review of the first nomination decision, and 1 October 2018, the Tribunal found that it did not have jurisdiction to review the matter as the sponsor had withdrawn its application (CB 97).

    8. On 30 October 2018, the sponsor lodged a new nomination which was refused by a delegate on 22 November 2018 (second nomination decision) (CB 35). On the same day, a delegate refused to grant the first applicant the visa as she were not identified in an approved nomination, and therefore did not satisfy cl 407.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). As a result, the first applicant’s husband was unable to satisfy cl 407.311 as he was not the member of the family unit of a person who held the visa (CB 34-37).

    9. On 13 December 2018, the applicants applied to the Tribunal for review and nominated a representative (CB 38-39).

    10. The sponsor also applied to the Tribunal for review of the second nomination decision, and on 9 August 2021, the Tribunal found that it had no jurisdiction to review the matter as the sponsor had been deregistered as a company on 30 July 2020 (CB 97).

    11. On 14 March 2023, the Tribunal invited the applicants to appear before it on 6 April 2023 by telephone (CB 84-88).

    12. On 17 March 2023, pursuant to s 359A of the Migration Act 1958 (Cth) (Act), the Tribunal invited the applicants to comment on or respond to the information that it had found that it did not have jurisdiction to review the first and second nomination decisions, and therefore the applicants were not the subject of an approved nomination. If this information was relied upon, the applicants could not meet the criteria for the visa. The Tribunal invited the applicants to comment or respond by 31 March 2023 (s 359A invitation) (CB 94-98).

    13. On 31 March 2023, the applicants provided written submissions to the Tribunal claiming that they were unaware that the sponsor had withdrawn its application for review on 13 December 2018; that the sponsor had changed its business name to J.I.S.P. Pty Ltd T/A Heading Out Hair & Beauty Fitzroy and its ABN to 47633328015; that the first applicant had been continuously working for the same employer since 2018; and that they wished to lodge another visa application (CB 108-110).

    14. On 6 April 2023, the first applicant attended the scheduled hearing with her representative (CB 114-116).

    15. On 24 May 2023, the Tribunal affirmed the decision under review (CB 120-124).

    16. The Tribunal determined that it was reasonable to hold a hearing by telephone due to the nature of the matter and the individual circumstances of the applicants, and it was satisfied that they were given a fair opportunity to give evidence and present arguments (CB 123 [11]).

    17. The Tribunal noted the applicants’ representative’s oral request that the Tribunal to defer its decision of the visa application for as long as possible (deferral request). This was because the sponsor expected to lodge a nomination application for the first applicant for a Subclass 482 visa in the next two weeks, and the Department’s estimated processing time for this application was six to 12 weeks. The Tribunal noted that it indicated that it was unlikely for it to make a decision for about six weeks, but that it would be doing so within 12 weeks (CB 123 [12]-[13]).

    18. The Tribunal found that at the time of the delegate’s decision, the first applicant did not have an approved nomination of a program of occupational training by her sponsor and thus did not meet cl 407.214(b) of Schedule 2 to the Regulations. The Tribunal noted that the Department had refused two nomination applications made by the sponsor on 11 October 2018 and 22 November 2018, and that there was no evidence before it of any other approved nomination for the first applicant (CB 124 [16]).

    19. The Tribunal found that the first applicant did not meet cl 407.214 of Schedule 2 the Regulations, and that her husband could therefore not satisfy cl 407.311 (CB 124 [17]-[18]).

    20. The Tribunal affirmed the delegate’s decision (CB 123 [14], 124 [19]).”

  8. I am satisfied that the background contained in the Minister's outline accurately reflects what has occurred in this matter. But, in summary, the applicant applied for a training visa sponsored by a company, A Orlando, in the occupation of hairdresser. The sponsor's nomination application was refused by a delegate of the Minister. Applications by the sponsor to review the delegate's refusal to approve the nomination were either unsuccessful or withdrawn.

  9. The consequence of the refusal of the sponsor's nomination was that the applicant Monia was not the subject of an approved nomination which was a mandatory requirement for the grant of the visa.

  10. Ms Monia and her husband made an application to the AAT for review of the delegate's decision to refuse their visa applications.  The Tribunal conducted a hearing, and during that hearing, the applicants asked the Tribunal to defer its decision because they had lodged a later visa application and anticipated that another sponsorship nomination would be lodged.

  11. Notwithstanding that request to the Tribunal, the Tribunal considered the delegate's original decision and found that, at the time of that decision, the applicant did not have an approved nomination of a program of occupational training by her sponsor, and thus she did not meet the relevant criteria for the grant of a visa.

    CONSIDERATION

  12. I pause at this juncture to observe that during the course of the hearing this morning, in response to questions that I asked, Ms Monia effectively accepted that the delegate and the AAT were correct to find that at the time of her original visa application she was not the subject of an approved nomination. That finding seems inevitable.  The applicant also conceded the Judicial Registrar was also correct to reach the same finding.

  13. It is important for the applicants to understand that I do not have the jurisdiction or authority grant visas. The power to grant a visa only resides in the responsible Minister or delegates. The only task that the Court can perform when dealing with an application to review is to determine whether the previous decision-makers have performed their duty according to law. That is, in the present case, whether the delegate performed their role according to law and whether the Administrative Appeals Tribunal were correct to refuse the visa for the reasons they gave. Both of them refused the visa on the ground that Ms Monia was not the subject of an approved nomination at the time, and that appears to have been correct.

  14. I have been informed by the applicants today that they have made a new visa application for a sponsored visa, and that it is in the process of being considered. That new visa application will also require a sponsored nomination, and the applicants have asked me today to grant them time to allow that application to be processed. That is not something which I can do. That new visa application will proceed on its own merits and will be dealt with by those who are able to grant it or refuse it, as the case may be. I cannot grant a visa and I cannot grant time. 

  15. Furthermore, the current application before the Court relates only to the first visa application. I am saying nothing about the new visa application.  I can only consider whether the decisions about the first application were correct, and because that is the only visa with which I am concerned, then the new application cannot be relevant to my decision.

    EXTENSION OF TIME

  16. There is also a further problem. The application for review of the Judicial Registrar's decision has been made out of time. I do have the power to extend time, but it is a matter of discretion and I have to exercise that discretion reasonably and judicially. The Minister has opposed the application for an extension of time.

  17. In considering whether to grant an extension of time, the Court will normally consider a number of relevant matters, which include the length and the explanation for the delay, whether the application has reasonable prospects of success and whether there is any prejudice to the Minister[6].

    [6] Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344

  18. I note that the delay is 22 days. It is not a long time. But the explanation given for it by the applicants today is that they were hoping in the meantime that the new visa application would be approved. I do not consider that to be an appropriate reason for delay. I can understand why one might hope that a new visa application would come through and that it would effectively then supplant everything that has gone before. In my view that is not a reason for not complying with the Rules, and therefore, I do not consider it to be a persuasive reason to grant an extension of time.

  19. I do not see any prejudice to the Minister in me granting an extension of time. The Minister accepts that there would be no prejudice but submits that alone is not a reason to grant the extension.

  20. In deciding whether I should grant an extension of time, I should turn my mind to the prospects of success of the application. It seems to me, as found by the Registrar, that the prospects of success of the application are very, very poor indeed. That is because the decision of the delegate, and subsequently the Tribunal, was that Ms Monia was not the subject of an approved nomination and accordingly did not meet the requirements for the grant of a visa. There is no evidence before the Court which would suggest that that conclusion was incorrect. Indeed, as I mentioned, it seems that the applicant herself accepts that the conclusion was also correct.

  21. I have had regard to the application that was made before the Registrar and the various grounds of judicial review that were set out. However, none of those grounds appear to me to be able to overcome the fundamental issue, which is, that at the time the first application was made, there was not an approved employer nomination in place and therefore the delegate was required to conclude that the requirements for the grant of that visa were not met. It seems to me that because that was the only finding open to the Tribunal, then even if I were to find in the applicants’ favour, extend the time and send the matter back to the Tribunal, the Tribunal would only make the same finding.

  22. In all the circumstances, I am not satisfied that there is sufficient merit in the underlying application to persuade me to grant an extension of time.

    DISPOSITION

  23. I hope that those reasons are clear and that it is understood by the applicants that I am dealing with the first decision. I am not dealing with the second visa application. That is not a matter with which I am concerned.

  24. For reasons I have given, I propose to make orders dismissing the application for an extension of time and dismissing the application generally.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Forbes.

Associate:

Dated:       9 August 2023


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