Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 231
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 231
File number(s): MLG 1815 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 24 March 2023 Catchwords: MIGRATION – Application for judicial review by applicant and members of family unit – refusal of Business Skills (Provisional) (Class EB) visa application by reason of failure to provide evidence of lodgement of necessary financial investment in Australia within actual, extended or further extended timeframes – where application for judicial review lodged 76 days outside the statutory timeframe – where length of delay is considerable – whether the extension of time ought be granted – whether delay is reasonably explained – whether single ground of review is reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss.45, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cl.188
Cases cited: AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 294
CZAY v Minister for Immigration [2012] FMCA 50
MZYIZ v Minister for immigration and Citizenship (No 2) [2010] FMCA 755
SZMFJ v Minister for Immigration and Citizenship [2009] FMCA 771
SZRIQ v Federal Magistrates’ Court of Australia (2013) 236 FCR 442
SZOTZ v Minister for Immigration and Citizenship [2011] FMCA 153
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Wong v Minister for Immigration [2009] FMCA 7474
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 16 March 2023 Place: Melbourne Counsel for the Applicant: Mr R Chia of Counsel Solicitor for the Applicant: TQH Lawyers and Consultants Counsel for the Respondent: Mr C Fitzgerald of Counsel Solicitor for the Respondent: Clayton Utz ORDERS
MLG 1815 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI TO NGA NGUYEN
First ApplicantTAN PHONG PHAN
Second ApplicantANH BAO PHAN
Third ApplicantANH HAO PHAN
Fourth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
24 March 2023
THE COURT ORDERS THAT:
1.The application filed on 21 July 2022 be dismissed.
2.The Applicants pay the Respondent's costs fixed in the scale amount for interlocutory hearings of $4,189.38.
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 MANSINI
INTRODUCTION
This decision concerns an application for judicial review of a decision made by a delegate of the Respondent not to grant the Applicants a Business Skills (Provisional) (Class EB) visa, pursuant to s.65 of the Migration Act 1958 (Cth) (Act).
The application was filed 76 days outside the statutory timeframe.
Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35 day filing period, the application is dismissed. The reasons for this decision follow.
FACTUAL CONTEXT
The following is a summary of the relevant facts in this matter, as deposed by the First Applicant (who was not cross-examined about her evidence) and contained in the Respondent’s Department of Home Affairs (Department) file.
The First Applicant is a citizen of Vietnam. The First Applicant’s husband and children are named as the Second, Third and Fourth Applicants to these proceedings.
On 16 January 2019, the First Applicant was invited to apply for a Business Skills (Provisional) (Class EB) Visa.
On 20 February 2019, the First Applicant applied offshore for a Business Innovation and Investment (Provisional) (Subclass 188) visa in the Investor Stream. The Second, Third and Fourth Applicants applied as members of the First Applicant’s family unit. The particular visa sought required a “designated investment” in Australia, pursuant to s.45 of the Act and cl.188 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 3 August 2021, the Department extended an invitation to the First Applicant to select and make a “designated investment” of at least AUD1.5 million in Australia. The invitation noted that the First Applicant had “only 70 days” to lodge the designated investment in the State or Territory in which the nominating State or Territory government agency is located. It also specified the evidence to be supplied and that the evidence needed to clearly show all steps from liquidation of each asset to lodgement of the funds with the Treasury Corporation in the relevant sponsoring State or Territory.
On 18 October 2021, the First Applicant through her then migration agent requested an extension of 45 days “to make the transfer” (First Extension Request). The First Extension Request did not specify a reason for the extension or duration of further time sought.
On 29 October 2021, the Department granted the First Applicant an extension of 70 days to make the designated investment (First Extension). The First Extension letter stated:
You must respond to this invitation within 70 days after you are taken to have received this letter. This means that you need to complete the last step required from you within this timeframe.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
If the requested information is not provided to this office, or if your response is unsatisfactory or incomplete, then your application may be decided based on the information available to us.
If you are unable to provide the requested information within the specified timeframe, you should contact your processing officer using the contact details listed below in the footer.
On 11 January 2022, the First Applicant through her then migration agent requested a further extension of 45 days “to provide the designated investment as we wait for TCV to approve the funds transfer” (Second Extension Request). By “TCV” the agent was understood to refer to the Treasury Corporation of Victoria (TCV).
On 17 January 2022, the First Applicant was granted a further extension of 70 days to make the designated investment (Second Extension). The Second Extension letter also required the First Applicant to immediately supply evidence of the current status of their activities in relation to making the designated investment including evidence of the sale of the properties being used to make the investment and any correspondence with the appropriate State Treasury. The Second Extension letter contained a warning about failure to provide information or provision of unsatisfactory or incomplete information possibly resulting in the application being decided on the material before the Department. It also provided that the delegate was “highly unlikely to provide any further extensions to this time frame given the fact that you have had since 3 August 2021 to make the investment”.
An email of 15 February 2022 from the Treasury Corporation of Victoria to the First Applicant’s then migration agent was in evidence. That email advised that the application form submitted had not been approved because of the following incorrect or incomplete forms: Form D (a copy of the agent’s authorisation to act had not been provided, the address of the agent was a mismatch and the Form 956 was incomplete); Form E (the details of investment deposit were not completed for each transfer of funds); and Form F (a name was omitted, the agent had not signed the form with corresponding boxes to indicated which certified copies of identification documents they have provided, the passport and identification were not certified).
An email of 24 March 2022 from the Treasury Corporation of Victoria to the Applicant’s then migration agent was also in evidence. That email thanked the agent for their email of 23 March 2022 and advised that the application form submitted had not been approved because of the following incorrect or incomplete materials: Form D (there was a mismatch between the address details on the Form D and Form 956); Form F (the corresponding boxes had not been ticked to indicate which certified copies of identification documents had been provided); Bearer’s Signature (a copy of the First Applicant’s passport with her signature had not been provided).
On 28 March 2022, the First Applicant’s then migration agent sent an email addressed to …@homeaffairs.au (which address was incorrect on account of a typographical error in the entry which should have read …@homeaffairs.gov.au) (Attempted Third Extension Request). There were no other recipients included on that email. The content of that email was a request for a further extension of time of 28 days to provide the designated investment. The reason provided by the migration agent was that they were “still waiting for TCV to approve the bond transfer account”. It is accepted that this Attempted Third Extension Request would not have been received by the intended recipient on account of the error in the email address.
An email of 30 March 2022 from the Treasury Corporation of Victoria to the Applicant’s then migration agent was in evidence. That email thanked the agent for their email of same date and advised that TCV had not received the mentioned documents but would notify the agent upon receipt.
On 1 April 2022, a delegate of the Respondent’s Department notified the First Applicant by email of the decision to refuse the Applicants the visa made on same date. A decision record was also attached which, in summary, provided that the application was refused because the delegate was not satisfied that cl.188.246 in Schedule 2 of the Regulations was satisfied. The letter stated that there is no right of merits review for this decision.
An undated extract of an email from the Treasury Corporation of Victoria to the First Applicant’s then migration agent was also in evidence. That extract referenced that the original documents for this application were received on 1 April 2022 and that email advised that the application form submitted had not been approved because of the following incorrect or incomplete materials: Form A (the postcode had not been included in an address) and a copy of the Department’s invitation letter had not been provided as required. That email stated that the application would be reassessed upon receipt of the original application and required documents and included a reminder that funds were to be transferred only after TCV had accepted the documents and had so notified the First Applicant or agent to transfer the funds.
The First Applicant’s evidence was that the migration agent did not advise of the option to apply to this Court within 35 days of the Department’s decision but had advised that there was no right to merits review and, if the Department refused to reconsider the case, that they should reapply for the visa. She deposed that the migration agent had advised them to email the Department for a reconsideration and wait for the Department’s response because, at the time, they believed the Department had made a mistake. In this respect, the First Applicant relied on an SMS exchange of 9, 19 and 26 April 2022, which she said was between her sister and the then migration agent regarding the refusal of the visa application.
On the face of that SMS exchange, on 9 April 2022 the sister conveyed to the agent her understanding that the Department had made a mistake and that the migration agent had requested a review. The sister inquired as to how long it would take to get a response from the Department and how confident the migration agent was about this case; the migration agent responded that same day in which he expressed his hope they would hear back in 7 to 10 days and that he had “some confidence that [the Department] will realise the large mistake they have made”. The sister also inquired if that meant that the Department had not received the agent’s request to extend the time to wait for TCV to release the fund transfer approval or that the Department had not agreed to the extension. The agent responded that it seemed the Department had proceeded without reading the request.
On 19 April 2022, the First Applicant’s sister sent a follow up SMS message to the then migration agent. On the face of that SMS exchange, the sister inquired as to whether the agent had heard back from the Department; the agent responded that same day and confirmed no response had been received from the Department and he would send another update request; the sister inquired about whether they could “lodge the formal AAT appeal” if the Department would not review the case and also asked whether there had been any update from TCV; the agent responded in which he asserted his experience that the Department have changed their decision on similar grounds before but not always and informed the sister that they could not apply to the AAT (by which it was understood he meant the Administrative Appeals Tribunal) but they could reapply to the Department. The 19 April 2022 SMS exchange concluded with the sister saying they would wait till next week then.
On 26 April 2022, the First Applicant’s sister sent another follow up SMS message to the then migration agent. On the face of that text message exchange, the sister inquired as to whether the agent had heard back from the Department; the agent responded that he had not yet received a response but planned to follow up later that day for one final request; the sister then asked whether they would receive a response at all; the agent said the Department would answer if they agreed to investigate; and the exchange ended with the sister saying they would wait for the Department’s explanation and asking to be kept updated.
The First Applicant deposed that it was in early May 2022 that they consulted a legal representative and were advised for the first time of “the time limitation” being 6 May 2022.
On 3 May 2022, the First Applicant engaged the legal representative (who remained on the record at the time of hearing of the extension of time application before this Court). The First Applicant deposed that they were unable to obtain any documents or correspondence from her previous representative for “several days”.
On 12 May 2022, the First Applicant’s legal representative sent an email to the Respondent’s Department. By that email, the legal representative: confirmed their recent engagement to act for the First Applicant; explained that the formerly engaged migration agent had sent the 28 March 2022 email to an incorrect email address and requested that the Department forgive the simple administrative mistake and revisit its decision to refuse the visa application and continue processing the application. That email included a number of other assertions, including that the First Applicant was and remained at all times ready to transfer the AUD1.5 million to the TCV and that the refusal decision was “vitiated by jurisdictional error”. That email also referred to parts of the legislation and some case authorities. It concluded:
As stated above, there may be strong grounds for judicial review in this matter and we have engaged the assistance of counsel for initial case advice. We wish to avoid this course of action.
On 6 July 2022, the Department responded by email to the 12 May 2022 correspondence. By that response, the Department said that there were no provisions enabling it “to revisit a decision on a visa application once it has been lawfully made”.
On 21 July 2022, the Applicants filed their application in this Court for an extension of time to review the delegate’s decision with an accompanying affidavit of the Applicants’ legal representative.
On 16 March 2023, the application for an extension of time proceeded to hearing before the Court as presently constituted. Both parties were represented by Counsel.
APPLICATION FOR AN EXTENSION OF TIME
Was the application filed late?
An application for a remedy under s.476 in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision: s.477(1) of the Act.
The delegate’s decision was delivered by email on 1 April 2022. An application for judicial review in this Court was due to be made by 6 May 2022. This application was filed on 21 July 2022.
Accordingly, the application was made 76 days after the expiry of the 35 day period.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35 day period within which an application must be made as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish the sole mandatory consideration that it is in “the interests of the administration of justice” to grant an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); SZRIQ v Federal Magistrates’ Court of Australia (2013) 236 FCR 442, [46]-[48] (Foster J).
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
By the application filed on 21 July 2022, the Applicants have made an application to the Court, in writing, specifying why they consider it necessary in the interests of the administration of justice to make the order for an extension of time in the following terms:
1.The applicant considers that it is necessary in the interests of the administration of justice to make an order extending the time for the making this application for the following reasons.
2.The decision was made on 1 April 2022 and the application is 75 days late.
3.The applicant has always intended and has never abandoned her intention to seek judicial review. She wrote to the respondent's department on 12 May 2022 requesting reconsideration of the decision and seeking to avoid the need to commence proceedings. There was no response until on 6 July 2022.
4.The application has merit.
5.The grant of an extension of time will not occasion any prejudice to the respondent.
I turn now to consider this application. For completeness, in conducting this review and exercising the broad discretion under the provision, I have considered the factors that were submitted to be relevant to the Court.
Delay and explanation
By the application for an extension of time, the Applicants sought to explain their delay in filing the judicial review application in this Court by reference to the delay of the Department in providing a response to their legal representative’s 12 May 2022 email. It was contended that the 12 May 2022 email was an attempt to avoid the need to commence proceedings.
By their subsequent submissions filed in these proceedings, the Applicants sought to supplement the explanation for their delay with the following:
(a)the First Applicant was initially required to appoint a new representative, a process that took longer due to the First Applicant being located in Vietnam;
(b)once retained, the new representative sought confirmation in an email of 12 May 2022; and
(c)the majority of the delay is then attributable to the inordinate time taken for the Department to respond to that email.
At the hearing of this matter, the Applicants’ representative was understood to also say that the Applicants had reasonably relied on the former migration agent’s “reasonable” advice and/or in the alternative that of the current legal representative. And further, in reply submissions, to the extent those advice(s) were incorrect (which was not conceded), it was nonetheless reasonable for the Applicants to rely on the advice(s) and these were acceptable reason(s) for the delay. The Respondent opposed on the basis that this frame of argument was new and ought not be received by the Court.
Whether the delay in the present case was of “some 75 days’” duration (as the Applicants submitted) or 76 days as I have earlier found, in my view, the present case is concerned with a considerable period of delay in filing the judicial review application after the expiry of the statutory timeframe.
The Applicants were represented at all relevant times. Whilst it may be accepted that the Applicants’ decision to change representation in or around early May 2022 may have presented some difficulties in extracting a comprehensive brief, the Applicants have not explained why this factor prevented them from filing any application at all by 6 May 2022. Of itself, this circumstance does not reasonably or adequately explain the delay.
The Applicants contended that they relied on advice of their former migration agent. At its highest the evidence established that the Applicants relied on the advice of the migration agent during the period up until the time when they changed representation in early May 2022 (which was not later than 3 May 2022 when the legal representatives were formally engaged). I accept that may explain the inaction during that period up to 3 May 2022. But this does not adequately explain the delay in filing the application for judicial review. Particularly in circumstances where the Applicants accept that, at least by early May 2022, they were in receipt of advice which made them aware that the application was due to be filed by 6 May 2022.
To the extent that the Applicants sought to belatedly contend that their reliance on the legal representative’s advice was also a reason for their delay, that the Applicants chose to engage representation and rely on their representative’s advice is a matter for them but does not of itself explain the delay or anything other than a choice made on the part of the Applicants. It was not squarely put this way, but even if it were seriously contended that the advice of their legal representative was incorrect or their legal representative made an error, I would not consider the evidence to justify the delay. The evidence does not disclose what the legal representative(s) advised or when such advice was provided other than to establish that the Applicants knew of the statutory timeframe by early May 2022. By their email of 12 May 2022, it is apparent that the legal representative(s) were at least by that time not only conscious of the option to seek judicial review but had deliberately pursued an alternative course. In that correspondence, the representatives articulated an argument for judicial review (with reference to legislation and case authorities) and invited the Department to take action in an effort to avoid the judicial review process. Yet the Applicants did not make such application at that time or until some weeks later.
Further, if it were seriously pressed as an explanation for the delay in this matter, representative error is a factor that the legal representative(s) (who remain on the record for the Applicants and have filed two affidavits in these proceedings) ought properly have addressed the Court about: cf. Wong v Minister for Immigration [2009] FMCA 7474 at [37] per Scarlett FM; CZAY v Minister for Immigration [2012] FMCA 50 at [86] per Neville FM; Ahmed v Minister for Immigration and Citizenship per Gummow J.
Nor is it credible to suggest that the Applicants’ decision to await the Department’s response to the 12 May 2022 email, which was not forthcoming for some 56 days (until 6 July 2022), provides a reasonable explanation for the delay in filing this application.
In any event, the application for judicial review was filed a further 2 weeks after the Department’s 6 July 2022 response was provided. The Applicant has not offered any explanation for that part of the delay.
Considered individually or together, I am not persuaded there is a reasonable explanation for the delay. The length and explanation for the delay weigh strongly against an extension of time in this matter.
Prejudice to the Respondent
The Respondent properly did not contend it would suffer any particular prejudice if the Applicants were granted an order allowing an extension of time.
However the mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this as a neutral consideration.
Merits of proposed grounds
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Department. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable.
The single ground of the substantive application was articulated in the following terms:
The defendant’s exercise of discretion under section 62 of the Act to refuse to grant her a visa without taking any further action to obtain additional information was legally unreasonable.
It is accepted that an administrative decision maker’s unreasonable exercise of a procedural discretion may give rise to a jurisdictional error. However, I am not persuaded that the ground of the substantive application is reasonably arguable for the following reasons.
First, as will be apparent from the factual context, the designated investment in Australia was a mandatory criteria for a Business Skills (Provisional) (class EB) visa proscribed by cl.188.248 of Schedule 2 to the Regulations. The Applicants were afforded a total period of over 200 days to make the designated investment after the Department’s first invitation to do so. In that time, the Applicants were granted 2 extensions by the Department. On 17 January 2022, the Applicants were asked to update the Department about their progress by providing evidence of the current status of their activities in relation to making the designated investment. But there is no evidence to suggest that they so complied in order that the Department could be aware of any reason why it might reasonably afford further time before determining the application. In the Second Extension letter, the delegate had expressly foreshadowed that a further extension was unlikely given the length of time that had already been afforded.
Nonetheless, the Attempted Third Extension Request was prepared just prior to the expiry of the Second Extension. Further, the Attempted Third Extension Request was not sent to (or received by) the Department at all.
It was not incumbent on the Department to follow up with the Applicants or their migration agent.
In all of these circumstances, there is no apparently unreasonable act or failure on the part of the Department in proceeding to determine the visa application on the materials before it. The Applicants had been adequately warned of that possibility in the letters of 29 October 2021 and 17 January 2022.
For completeness, there was no evidence to support the contention that the Department was aware of communication between the Applicants’ representative and the TCV or that the Department was aware of any reasons for the delay in processing the designated investment at the time of its decision. The Applicants foreshadowed discovery or a subpoena of Department records to so establish the point in the substantive proceedings. It is difficult to discern the basis on which such record could be said to assist on the face of the evidence that has been produced in these proceedings. The evidence before the Court plainly disclosed a communication between TCV and the Applicants on 30 March 2022 wherein TCV said the requirements of making the investment had not been met. Even if the Department could be proved to have known of that communication, it would establish nothing more than that the Applicants had still not met the visa criterion. It was just one example of a series of rejections by TCV. That communication does nothing to disclose that the Applicants needed more time or if so how much time or otherwise to justify a conclusion that that the Department’s decision was affected by jurisdictional error because it was legally unreasonable.
No reasonably arguable jurisdictional error was identified by the Applicant at hearing. Nor is any such error apparent on my own review of the materials. Even at an impressionistic level, the single ground does not reveal reasonable prospects of success.
CONCLUSION
The application in this case being 76 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application will be dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 24 March 2023
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