Patel v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1017
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1017
File number(s): MLG 1151 of 2023 Judgment of: JUDGE CORBETT Date of judgment: 15 October 2024 Catchwords: MIGRATION – application for review of Registrar’s decision – where Registrar summarily dismissed application for judicial review – extension of time - hearing de novo – sponsor employer deregistered – futility of application. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 7.01, 13.13(a), 21.01, 21.02, 21.03, 21.03(a)
Migration Regulations 1995 (Cth) Sch, 2, cl 186.223
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 426
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Allison v Murphy [2021] FCAFC 232
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration & ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Spencer v The Commonwealth (2010) 241 CLR 118
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 12 September 2024 Date of hearing: 12 September 2024 Place: Melbourne Solicitor for the Applicant The First Applicant Appeared In Person Solicitor for the First Respondent: Sparke Helmore Advocate for the First Respondent Mr Mangos ORDERS
MLG 1151 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEJALBEN BHAUMIK PATEL
First Applicant
BHAUMIK JAYANTIBHAI PATEL
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
AMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The time within which to bring the applicants’ application for review pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (Gen Federal Law) Rules 2021 (Cth) is extended to 12 September 2024.
2.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
3.The application for review of the decision of the Judicial Registrar made 23 July 2024 is dismissed.
4.The applicants pay the first respondent’s costs of and incidental to the application for review fixed in the sum of $1,000.00.
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 CORBETT
The applicants seek review of a decision of a Judicial Registrar made on 23 July 2024 which summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the applicants’ application for judicial review. The Judicial Registrar held that the application for judicial review had no reasonable prospects of success.
The applicants’ substantive application, sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 26 May 2023 (Decision). The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicants’ Employer Nomination Scheme (Temporary Residence Transition) (subclass 186) visa(s) (Visa) under s 65 the Migration Act 1958 (Cth) (the Act).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and marked as exhibit “R1”.
BACKGROUND
The applicants are citizens of India.
On 13 October 2020, the first applicant applied for the Visa. The application included the first applicant’s husband (the second applicant) and their son (CB 1-20). The application for the Visa was sponsored by the first respondent’s employer which was a company known as RDMP Pty Ltd. The sponsored position was as a “Restaurant Manager” (CB 12).
On 10 February 2022, the applicants were notified in a letter from a delegate of the Minister that the nomination submitted by the sponsor, RDMP Pty Ltd, had not been approved by the Minister. The applicants were invited to withdraw their application (CB 58-9).
On 2 December 2022, a delegate of the Minister refused to grant the Visa on the basis that the application did not meet the criteria in cl 186.223 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 65-9).
On 5 December 2022, the applicants applied to the Tribunal for review of the delegate’s decision. (CB 70–8).
On 27 April 2023, the Tribunal invited the applicants pursuant to s 359A of the Act to comment on the Tribunal’s conclusion that, due to the Minister refusing the nomination of RDMP Pty Ltd, the Tribunal must find that the application did not meet the criteria in cl 186.223 (CB 86-7).
On 9 May 2023, the applicants, via their migration agent, emailed the Tribunal to request a six-week extension to provide a response to the Tribunal’s request for information (CB 88).
On 10 May 2023, the Tribunal granted an extension of time of fourteen days to respond to the request for information (CB 89-90).
On 18 May 2023, the applicants, via their migration agent, sought a further extension of time to respond to the invitation to comment on the basis that they had submitted a freedom of information (FOI) request to gain access to documents regarding the application (CB 91-4). The migration agent noted in the email that the timeframe for receiving documents pursuant to the FOI request was likely to be thirty days, thereby exceeding the extension date of fourteen days. This further extension request was refused by the Tribunal (CB 95-7).
On 26 May 2023, the Tribunal affirmed the delegate’s decision to refuse the application (CB 101-5).
PROCEDURAL HISTORY
On 26 June 2023, the applicants commenced this proceeding by an application for judicial review under s 476 of the Act. The applicants identified six grounds of review, as follows (verbatim):
1.The applicant seeks judicial review of the decision of Administrative Appeal Tribunal in this matter on the grounds that the Tribunal erred jurisdictionally in determining the application adversely and failed to find that applicant satisfied the relevant provisions of the Migration Migration Regulations 1994.
2.That as an applicant I felt my application has not been dealt rationally and decided unfairly and has affirmed the refusal under cl 186.223 (2) and cl 186.223 (3).
3.That I believe that has been an error of law in deciding my application
4.That there are compelling and compassionate reasons for granting the visa (186.223)
5.That Tribunal has made an error and did not consider the applicant’s claim that genuine employer nomination scheme /documents/ information was provided.
6.The Tribunal has made an error and did not consider the applicant’s claim that information/documents was provided is genuine and eligible to get employer nomination stream.
On 11 April 2024, the Minister filed a Response seeking summary dismissal of the application pursuant to r 13.13(a) of the Rules.
On 26 June 2024, a Registrar of the Court listed the application for summary dismissal for hearing on 23 July 2024.
On 23 July 2024, Registrar Lindsay ordered the application for judicial review filed 26 June 2023 be summarily dismissed, on the basis that the application had no reasonable prospects of success. The applicants were ordered to pay the first respondent’s costs fixed in the sum of $4,189.38.
The power of the Registrar to make those orders derives from r 21.01 of the Rules and s 254(1) of the Act.
On 16 August 2024, the applicants filed an application to review the Registrar’s decision. The hearing was listed at the first available date, 12 September 2024. The application for review filed by the applicants (who are unrepresented) identified five “Grounds of Review”. Those grounds asserted jurisdictional errors by the Registrar.
Those “Grounds of Review” are misconceived. If the application for review is filed in accordance with r 21.02 and r. 21.03 of the Rules, then pursuant to r 21.04 the hearing of the application by this Court is a hearing de novo (see Allison v Murphy [2021] FCAFC 232 at [11] and Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19]).
However, the time within which to bring an application for review is seven days (rule 21.02(1)). The application for review was not made within seven days of the Registrar’s decision and was filed seventeen days late. Without an extension of time the application is incompetent (see AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 426 at [6] and the cases there cited).
REVIEW HEARING
The application for review was heard by this Court on 12 September 2024.
The first applicant appeared in person. The second applicant did not attend. The Minister was represented by Mr Mangos, solicitor.
On 10 September 2024, the Minister filed a written outline of submissions in opposition to the application for review. The first applicant claimed to have not received the Minister’s written outline of submissions. A copy was provided and the first applicant was then given the opportunity to read those submissions. The Court also gave the first applicant a brief summary of the substantive points raised by the Minister.
The Court informed the first applicant that without an extension of time, the application for review would be considered too late as it was required to have been made within seven days of the Registrar’s decision. The first applicant explained that she thought the time within which to appeal under the Rules was 28 days from the date of the decision. The first applicant was unable to say where that time of 28 days had come from, but she thought that was the “normal time” within which to decide whether to appeal a decision of the Court. The first applicant then sought an extension of time to bring the application for review.
The Court explained that if an extension of time was granted then the first applicant must then satisfy the Court that the Decision should be set aside due to a jurisdictional error. It was explained that the Court cannot review the merits of the Decision or grant the Visa, but was restricted to determining if there was a material error that required the Tribunal to reconsider the Decision in accordance with law (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The Court then invited Mr Mangos for the Minister to address the applicants’ request for an extension of time. The Minister opposed the grant of an extension of time and submitted that without a formal application before the Court the oral application should not be entertained. Moreover, the Minister submitted that there was no evidence filed in support of the application to illustrate a credible reason for the applicants’ delay. The Minister could not identify any prejudice arising from an extension of time but submitted that the time stipulated in r 21.02 was clearly seven days and not 28 days.
EXTENSION OF TIME
The principles that apply to whether the Court should grant an extension of time are well established (see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments). In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties, and the merits of the underlying application. The mere absence of prejudice alone is not a sufficient reason to grant an extension of time (see Hunter Valley Developments at [349]).
In this case, the explanation given by the first applicant, who was at the time of making the application for review unrepresented, is credible although not deposed to in an affidavit. The Court also notes that under r 21.03(2) of the Rules, the time within which the application must be listed for hearing is fourteen days after the date of filing which could not have been practically achieved in this case. In the absence of prejudice to the Minister, the length of delay (seventeen days) and the candid explanation given by the first applicant, the Court is satisfied that it is in the interests of justice to extend the time. An order will be made allowing the applicants to extend the time for making the application for review to the date of the hearing, namely, 12 September 2024.
MERITS OF SUBSTANTIVE APPLICATION
After indicating that an extension of time would be granted, the first applicant was asked to address the Court on the grounds on which the Decision should be remitted to the Tribunal for jurisdictional error.
The first applicant was unable to identify any material error made by the Tribunal. She explained that at the time of making the application for the Visa her employer was able to nominate her as an eligible employee. However, due to the COVID-19 restrictions in Victoria during 2020 and 2021 her employer was unable to continue trading. It was further explained that it was neither her fault, nor her employer’s fault, that at the time of the delegate’s decision her employer had lost the restaurant business and had shut down. At the time of applying for the Visa the first applicant had worked for her employer for two years and her application was genuine. She informed the Court that she was “not questioning the decision” of the Tribunal, rather it was not her fault that the employer was forced to close the restaurant business due to COVID-19.
In response, the Minister relied on the written outline submissions filed 10 September 2024 and documents in the Court Book which was tendered and marked exhibit “R1”. The Minister also sought to rely on an affidavit of Elizabeth Hsu affirmed 5 July 2024, and the documents annexed thereto. The affidavit and annexures were marked as exhibit “R2”. Annexure “EH 3” to that affidavit was an extract from the ASIC database which recorded RDMP Pty Ltd as “deregistered” on 15 September 2022. This preceded the delegate’s decision refusing the application for the Visa and preceded the Decision. Therefore, at the time of dismissing the application for the Visa (2 December 2022) and the Decision (26 May 2023), there was no employer capable of making a nomination and more importantly no nomination approved by the Minister within the meaning of cl 186.223 of the Regulations. Accordingly, it was submitted that there was no jurisdictional error by the Tribunal in concluding at paragraph [21] of the Decision that the applicants did not satisfy the primary criteria for the grant of the Visa (CB 104).
The solicitor for the Minister then addressed each of the grounds of review identified in the application. It was submitted that none of them identified “jurisdictional error”. In relation to grounds four to six which sought to rely on compassionate reasons for granting the Visa, the Minister submitted that the Tribunal had no discretion to waive the mandatory requirements in cl 186.223 of Sch 2 of the Regulations.
Finally, it was submitted that even if the applicants could establish some error in the Decision, any error would not be material, and it would be futile to remit the matter to the Tribunal as there was no approved nomination. Mr Mangos relied on Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88]-[90] as authority for that proposition and the mandatory requirement of an approved nomination for a visa in this sub-class.
CONSIDERATION
This was a hearing de novo of the Minister’s application for summary dismissal of the application under r 13.13(a) of the Rules.
The Court has the power to summarily dismiss the application for judicial review if the applicants have no reasonable prospect of successfully prosecuting that application (see s 143(2)(b) of the Act; r 13.13(a) of the Rules; Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). This necessarily directs attention to the merits of the applicants’ judicial review application.
The discretion to summarily dismiss an application must be exercised with caution given it is an order made at a preliminary stage in proceedings, in the absence of a full and complete factual matrix and argument: (see Spencer; Przybylowski). However, what is required is “a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial.”: (Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46], per Reeves J; Spencer; Przybylowski).
In this case, none of the grounds of review identified in the application for judicial review filed 26 June 2023 disclose jurisdictional error by the Tribunal, nor do they disclose reasonable prospects of successfully prosecuting the application.
The first applicant also conceded at the hearing on 12 September 2024 that the applicants were not questioning the decision of the Tribunal, however submitted that they were not at fault for the absence of an employer nomination approved by the Minister.
Before making the Decision, the Tribunal invited the applicants, pursuant to s 359A of the Act, to comment on the absence of an employer nomination approved by the Minister, which was a mandatory requirement and critical to the grant of the Visa. The applicants did not, and could not do so, as the relevant employer had been deregistered.
In the absence of a response to that invitation, the Tribunal proceeded to find in paragraph [14] of the Decision that it would be futile to further delay making a decision. The Tribunal then considered the criteria outlined in cl 186.223 of Sch 2 to the Regulations and found at paragraph [19] that without an approved nomination, the mandatory requirements of cl 186.223(2) could not be met. There was no jurisdictional error in proceeding in that way.
Ground one of the application for judicial review merely asserts jurisdictional error on the basis that a different outcome should have been reached, yet does not provide reasons to support that assertion.
Ground two alleges that the Tribunal did not deal with the application for the Visa rationally or fairly. There is nothing in the Decision to suggest an irrational or unreasonable conclusion or that the Decision “is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach” (Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 3 at [34], per Allsop CJ, Besanko and O’Callaghan JJ).
Ground three simply asserts that there was an error of law. No particulars were provided, and no specific error is identified. The failure to particularise a ground of review may be a sufficient basis for it to be dismissed (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4]). However, no error of law is apparent from the Tribunal’s reasoning.
Grounds four to six assert that there were compelling compassionate and other reasons why the applicants were genuine and eligible applicants for the Visa. Even if accepted as a submission, this would not overcome the fundamental absence of an employer nomination approved by the Minister (see Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [90]).
The Court has also scrutinised the application, the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] - [114]. No error is found.
The Court agrees with the Minister’s submission that even if there was jurisdictional error, remitting the matter to the Tribunal would be futile because there was no approved nomination, and the employer has now been deregistered.
There is no reasonable prospect of the applicants successfully prosecuting their application for judicial review filed 26 June 2023, and the decision of the Judicial Registrar to summarily dismiss should not be set aside.
During the hearing, the solicitor for the Minister sought to amend the name of the first respondent to “Minister for Immigration and Multicultural Affairs”. Pursuant to r 7.01 of the Rules the name of the first respondent and the title to this proceeding shall be amended accordingly.
The solicitor for the Minister also sought the Minister’s legal costs of the application for review in the sum of $1,000.00 which I find fair and reasonable. As I proposed to simply dismiss the application for review dated 16 August 2024, the orders of the Registrar dismissing the application for judicial review and ordering the applicants to pay costs in the sum of $4,189.38 are not set aside. If required I will hear the parties further as to costs.
ORDERS
The time within which to bring the applicants’ application for review pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (Gen Federal Law) Rules 2021 (Cth) is extended to 12 September 2024.
The name of the first respondent and the title to this proceeding is amended to Minister for Immigration and Multicultural Affairs.
The application dated 16 August 2024 made pursuant to r 21.03 of the Federal Circuit and Family Court of Australia (Division 2) (Gen Federal Law) Rules 2021 (Cth), seeking review of the decision of the Judicial Registrar made 23 July 2024 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application for review fixed in the sum of $1,000.00.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 15 October 2024
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