Patel v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1254
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1254
File number(s): MLG 475 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 25 November 2024 Catchwords: MIGRATION – Employer Nomination Scheme (Subclass 186) visa – decision of Administrative Appeals Tribunal – where Tribunal dismissed application when applicants failed to attend a hearing – where primary applicant’s sponsor withdrew nomination – applicants’ judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision filed out of time – application for extension of time to review Registrar’s decision – whether there is an adequate explanation for the delay – whether the application for judicial review has reasonable prospects of success – whether the application for judicial review is futile – extension of time application refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 256
Migration Act 1958 (Cth) ss 65, 338, 349, 357A, 360, 360A, 362B, 379, 379A, 379C, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.03, 21.04
Migration Regulations 1994 (Cth) reg 4.21; cll 186.21, 186.23, 186.233 of Sch 2
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Allison v Murphy [2021] FCAFC 232
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 871
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63
SZJRV v Minister for Immigration & Citizenship [2008] FCA 298
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 22 October 2024 Date of hearing: 22 October 2024 Place: Melbourne First Applicant: In person and on behalf of the second applicant Counsel for the First Respondent: Mr J. McDonald Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 475 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAIMINKUMAR JASHVANTLAL PATEL
First Applicant
ZINAL JAIMINKUMAR PATEL
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for an order extending time pursuant to s 256(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) be dismissed.
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 CUTHBERTSON
INTRODUCTION
On 18 January 2017, the applicants applied for Employer Nomination Scheme (Subclass 186) visas (visa). On 18 April 2018, a delegate of the of the first respondent (the Minister) refused to grant the visas. The applicants made an application to the Administrative Appeals Tribunal for merits review of that decision. The applicants were invited to appear before the Tribunal to give evidence and make submissions on 8 February 2019 but did not attend. The Tribunal dismissed their applications pursuant s 362B(1A)(b) of the Migration Act 1958 (Cth) (the Act). That provision empowers the Tribunal to dismiss an application without considering it further when an applicant does not attend a hearing to which they were properly invited.
On 21 February 2019, the applicants filed an application pursuant to s 476 of the Act for judicial review of the Tribunal’s decision (the JR application).
On 30 August 2024, the Minister applied for an order for summary dismissal of the JR application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) (the dismissal application). The Minister argued the applicants had no reasonable prospects of successfully prosecuting the JR application.
On 10 September 2024, Registrar Cummings summarily dismissed the JR application and ordered the applicants pay the Minister’s costs (the Registrar’s decision): Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 871. The applicants lodged an application for a review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) and Division 21.2 of the Rules on 2 October 2024 (review application). The review application was ultimately accepted for filing on 9 October 2024.
The lodgement and acceptance for filing of the review application has occurred outside of the 7 day time limit prescribed in accordance with s 256(1)(a) of the FCFCOA Act and r 21.02(1) of the Rules. Rule 21.02(2) provides that the Court may extend the time prescribed by r 21.02(1) on any terms that the Court thinks fit.
Given the Registrar’s decision is dated 10 September 2024, an application pursuant to s 256(1) of the FCFCOA Act was required to be made by the applicants by 17 September 2024. The review application was not “made” in accordance with the Court’s procedures until 9 October 2024 or 22 days after the prescribed time. The applicants, therefore, require an extension of time.
The applicants also sought an extension of time (EOT application). The first applicant filed an affidavit in support of the review application, providing the following explanation for the delay:
3. My application for review is being made more than 7 days after the decision of the Registrar made on 10 September 2024, but within 28 days of the said decision. As my VEVO check showed that my bridging visa was valid to 8 October 2024, I was under the impression that I had until 8 October 2024 (i.e., 28 days from the decision of 10 September 2024) to file an application to review. I had been contacting some migration agents to help me in this matter, but everyone seemed to be too busy to help me, until one of them told me that I only had 7 days to file my application after the decision of 10 September 2024. I wish to pursue my application for judicial review, and hence seek permission to proceed with my application for review out of time.
There are two key issues arising in relation to the applications before the Court. The first concerns whether the Tribunal’s exercise of its power to dismiss the applicants’ application for merits review pursuant to s 362B(1A)(b) of the Act was affected by jurisdictional error. The second issue is whether the JR application is futile as a consequence of the applicant’s inability to satisfy the criteria for the visa.
For the reasons set out below, I refuse the application for an extension of time for filing the review application.
BACKGROUND
There are two applicants to the JR application. The applicants are citizens of India and are married.
On 18 January 2017, the applicants applied for the visa. The applicant’s nominated occupation was “Graphic Pre-press Trades Worker”. The second applicant was included in the application as a migrating family member. A migration agent had assisted the applicants with the application and was authorised to receive correspondence on their behalf.
On 13 March 2018, the then-named Department of Home Affairs wrote to the applicant, through his migration agent, inviting him to comment on information relating to his visa application. The letter noted the nomination application submitted to the Department by Webnova Multimedia Pty Ltd (sponsor) listing the applicant as their nominee had been withdrawn. The letter explained this meant the applicant’s visa application could not be approved. The applicant was given 28 days to respond in writing to the invitation to comment. The letter also advised the Department may make a decision on his application without requesting additional information. The applicant was advised to provide the Department with all the information he felt was relevant.
On 19 March 2018, the applicant emailed the Department directly, advised he was no longer using the services of his migration agent and requested that correspondence be forwarded to him personally instead. His email attached a form notifying of the change of contact details.
On 19 March 2018, the Department wrote back to the applicant advising that his migration agent had been removed from his visa application as the nominated authorised person and that all future correspondence would be forwarded to his new nominated email address. The Department also forwarded its letter of 13 March 2018 to the applicant. It advised the 28 day timeframe for his response was from the initial notification date of the original letter sent to the applicant’s migration agent. There is no record of the applicant providing a response to the Department’s invitation to comment.
On 18 April 2018, the Department wrote to the applicant advising that his visa application had been refused by a delegate of the Minister on the basis that the criteria for the grant of the visa pursuant to the Temporary Residence Transition stream had not been satisfied (the delegate’s decision). In particular, the delegate was not satisfied that cl 186.233(4) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) was met as the nominated position was no longer available to the applicant.
The delegate also considered the applicant’s claims under the Direct Entry, and Agreement streams, but was also satisfied they were not met. The delegate also found that the second applicant did not meet the criteria under cl 186.311 of Sch 2 to the Regulations (member of the family unit of a person who holds a Subclass 186 visa).
TRIBUNAL PROCEEDINGS
On 4 May 2018, the applicants applied to the Tribunal for review of the delegate’s decision. On its face, the application was made by the applicants on their own behalf. The applicant was nominated as the person to whom correspondence should be sent. The applicant’s postal address, email and mobile phone numbers were provided for that purpose. The Tribunal wrote to the applicants on the same day, acknowledging receipt of their application. The letter advised the applicants to tell them immediately if they changed their contact details or if their personal circumstances change. They were also advised that if they wished to provide material and written arguments for the Tribunal to consider, they should do so as soon as possible. That letter was sent to the applicant’s email address.
On 30 November 2018, the Tribunal wrote to the applicants in the following terms:
It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide us with evidence about this. Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please complete and return the attached MR10 - Withdrawal of Application form.
There is no evidence that the applicants responded to this letter. This letter was also sent to the applicant’s email address.
On 15 January 2019, the Tribunal wrote to the applicants, inviting them to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review on 8 February 2019. The letter noted the hearing was scheduled to start at 1.30pm. The letter advised the following:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The hearing invitation also included ‘Information sheet MR18: Information about hearings – MR Division’. The information sheet relevantly stated the following:
…If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
…
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
In addition, the hearing invitation enclosed a ‘Response to hearing invitation – MR Division’ form. The hearing invitation advised that the applicant should read and complete the form within 7 days of receipt of the letter. The hearing invitation was sent to the applicant’s email address. There is no evidence the form was returned to the Tribunal.
On 1 and 7 February 2019, the Tribunal sent the applicants SMS reminders about the hearing to the phone number provided by the applicants.
The applicants did not attend the Tribunal hearing on 8 February 2019. The Tribunal’s hearing record is annotated with the words “NO SHOW @ 1:50pm”.
On 8 February 2019 at 2:36pm, the Tribunal dismissed the application for review under s 362B(1A)(b) of the Act. On 12 February 2019, the Tribunal wrote to the applicants notifying its decision to dismiss the application. The letter relevantly advised as follows:
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 26 February 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The information sheet attached to the letter, ‘MR20 – Information about dismissal of applications – MR Division’, set out further information about what happens when an application is dismissed including how to apply for reinstatement.
The Tribunal’s non-appearance decision of 8 February 2019 records the following reasons for its decision:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 8 February 2019. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 28 February 2019 and having not received an application for reinstatement, the Tribunal wrote to the applicants again, notifying its confirmation of the decision to dismiss the application for review. The Tribunal’s statement of decision and reasons records the following:
3. The review applicants were notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
PROCEEDINGS IN THIS COURT
The JR application
The JR application was filed in this Court on 21 February 2019 before the Tribunal confirmed the dismissal decision. It contained the following grounds of review:
1. Immigration/AAT failed to take account of relevant consideration
2. Ignoring materials the decision-maker was required to look at that is relevant legislation contained in the Migration Act and Migration Regulations 1994 clauses 186.233 and 186.242.
3. Ignoring materials the decision-maker was required to look at and I believe was unjust for my case and incorrectly interpreting the Clause 186.223 of Schedule 2 to the Migration Regulations 1994.
4. AAT and Home Affairs Department erred at law
The applicant’s affidavit filed in support of the JR application repeated in summary form the same allegations.
On 22 August 2024, orders were made by a registrar of this Court requiring the Minister to file and serve by 30 August 2024 an amended response setting out the basis on which the Minister applies for summary dismissal of the JR application, written submissions and any further evidence in support of the summary dismissal application. The Minister lodged an amended response and outline of submissions with the Court on 30 August 2024.
The orders of 22 August 2024 also required the applicants to file and serve on or before 6 September 2024 written submissions and any evidence in opposition to the summary dismissal application. The applicants did not file any material in accordance with those orders.
The review application
The review application seeks the following orders:
1. Permission be granted to proceed with this application out of time.
2. The application for judical review be allowed, or alternatively be listed for final hearing.
3. The respondent pay the applicants' costs
The applicant’s affidavit filed in support of the review application relevantly sets out the following:
4. As I understood it, the hearing on 10 September 2024 was for the respondents' application. I was not expecting it to be final hearing of my application for judicial review, which I thought was going to before a judge, and I wanted to have a migration lawyer with me at the final hearing.
5. In the hearing of 10 September 2024, the Registrar mainly focused on dismissal of my application by the Tribunal for me not attending the Tribunal hearing, and then me not applying for reinstatement of my application before the Tribunal. Even if I did not attend the Tribunal hearing, the Tribunal should still have considered my application properly and not just dismiss it because I did not attend the hearing.
6. The Tribunal and the Registrar failed to acknowledge the fact that I had in fact worked with my sponsor full-time for a period of more than 3 years from November 2014 to February 2018 in the nominated occupation of Graphic Prepress. I was not given any credit for that.
7. The Tribunal and the Registrar also did not consider the circumstances of withdrawal of nomination application by the sponsor. The fact was that I was doing well in my nominated job with the sponsor, but the sponsor sold his business in December 2017. My employment continued with the purchaser of business. About a month later my new employer changed my position to part-time and then 2-3 weeks later terminated my employment and replaced me with another person known to him and then withdrew my sponsorship. There was no fault of me in all this, and I was a victim. This was out of my control.
8. The Tribunal and the Registrar also did not consider that before my employment with my sponsor, I had completed in Australia, Certificate III in Graphic Prepress and Diploma of Multimedia, which were relevant to my employment.
9. The Registrar also did not consider that after dismissal of my application by the Tribunal, I was looking for another employer to sponsor me, but the Covid pandemic made it hard for me to get another employment and sponsor in my field.
10. The Registrar did not consider the hardship that I have been facing because of dismissal of my application by the Tribunal. The Registrar did not consider the effect on my career and on my life, of the dismissal/refusal of my visa application through no fault of mine.
11. My application should be considered with compassion, and I should be allowed some more time to find another employer to give me a job in my filed and sponsor me, based on which I can lodge a further visa application. Alternatively, some more time would help me explore any other visa options and direction in my life.
12. I respectfully say that the Registrar was wrong in stating that the Tribunal made the only decision that it could. I say that the Tribunal had the option and power to grant my visa application.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. This requires consideration of the Minister’s dismissal application afresh; such a hearing is not concerned with considering the correctness of the Registrar’s decision: Allison v Murphy [2021] FCAFC 232 at [11], per Besanko, Colvin and Downes JJ. The Court is able to receive as evidence any affidavit or exhibit tendered before the Registrar, any transcript of the proceeding before the Registrar, and, with leave, further evidence: r 21.04(2). Consequently, it is not necessary for the applicants to establish error on the part of the Registrar. It is appropriate, however, to treat the complaints about the Registrar’s decision set out in the affidavit as submissions relevant to the applications before the Court.
The review application was listed before me on 22 October 2024. The applicants appeared in person. The applicant spoke on behalf of himself and his wife. As the applicant was unrepresented, I explained the factors that were relevant to his extension of time application included the length and reasons for delay, whether there would be any prejudice to a party if an extension of time was granted and the merits of the underlying applications. I explained that a review of a registrar’s decision involved a fresh hearing where the Court looked at all of the information properly before it and decided for itself whether to exercise the discretion under r 13.13 of the Rules to dismiss the JR application. I explained this meant a Court conducting a such a review had to decide for itself whether the applicants had no reasonable prospect of successfully prosecuting their JR application.
The following documents relevant to the applications were before the Court:
(a)the JR application filed on 21 February 2019;
(b)the affidavit of the applicant affirmed and filed on 21 February 2019 in support of the JR application;
(c)the Minister’s response to the JR application filed on 26 March 2019;
(d)the Court Book filed on 26 May 2021 (tendered and marked 1R);
(e)the Minister’s amended response to the JR application lodged on 30 August 2024 and accepted for filing on 3 September 2024 which included the dismissal application;
(f)the Minister’s outline of submissions lodged on 30 August 2024 and accepted for filing on 3 September 2024 (Minister’s outline);
(g)affidavit of Charlee Austin Hawkes affirmed and filed on 10 September 2024 deposing to the steps taken by the Minister’s legal representatives to serve copies of the Court Book, the Minister’s outline and amended response on the applicants (Hawkes affidavit, tendered and marked 2R);
(h)the review application lodged on 2 October 2024 and accepted for filing on 9 October 2024;
(i)the applicant’s affidavit in support of the review application affirmed and lodged with the Court on 2 October 2024 and accepted for filing on 9 October 2024 (tendered and marked 1A).
The Minister relied on the court book, the Hawkes affidavit, the Minister’s outline and made further oral submissions during the hearing. The applicant relied on the applicant’s affidavit filed in support of the review application and was invited to explain to the Court why he had not filed his review application in time, what he considered the Tribunal had done wrong in dismissing the application for merits review and why the JR application should not be summarily dismissed.
Adjournment application
At the commencement of the hearing, the applicant indicated he wanted an adjournment. He explained he was experiencing financial hardship. He said he had not been able to obtain legal advice due to the cost. He said he contacted a lawyer “last Friday” which was 18 October 2024. When asked to identify the length of adjournment he was seeking, he initially indicated he sought an adjournment until he could afford a lawyer. It was explained that adjourning the matter for an indefinite period was not an attractive option to the Court. He then suggested a period of 6-8 weeks. When pressed to explain what he hoped to achieve in that period, he told the Court his Indian passport had expired. When asked how this was relevant to the application before the Court, the applicant said he was trying his best to get something out of it for a new visa. He explained he needed an Australian bridging visa in order to be able to apply for a new Indian passport. He referred to a checklist he had obtained relating to an application for an Indian passport and showed it to the Court. That document did not satisfy me that a bridging visa was a necessary pre-condition to the grant of an Indian passport. It was also not clear whether the applicant had in fact made an application for an Indian passport which had been refused.
Ultimately, it appeared to me the applicant was seeking an adjournment for a collateral purpose unrelated to the applications before the Court. It did not appear the applicant intended to obtain legal advice in relation to his review application as opposed to advice concerning his visa options. It does not appear the applicant has obtained legal representation in respect of the JR application, and he was not represented when the dismissal application was heard by Registrar Cummings. I also note that r 21.03(2) of the Rules provides that a review of a registrar’s decision must be listed for hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing. It is expected that such matters are determined in a timely way.
In light of those matters, I refused the application for the adjournment. Later submissions made by the applicant in support of the review application appeared to confirm the applicant is principally motivated to buy time to sort out his and his family’s visa and passport situation. The applicant’s affidavit at [11] set out at paragraph [31] above is also to a similar effect.
EXTENSION OF TIME APPLICATION
Principles and relevant considerations
The Court has a broad discretion to grant an extension of time under r 21.02(2) of the Rules. In considering such applications, the Court will often have regard to matters such as the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding and the merits of the underlying application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, at 348-349. Such considerations are not exhaustive but provide guidance and promote consistency in the approach to such applications: see, for example MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43].
Summary dismissal application
In determining the application for the extension of time and considering the merits of the underlying application, which in this case is the review application and the applicants’ opposition to the Minister’s application to summarily dismiss the JR application, it is necessary to consider the principles relating to the Court’s powers pursuant to s 143(2) of the FCFCOA Act and r 13.13(a) of the Rules.
Section 143(2) of the FCFCOA Act confers power on the Court to give judgment to a party defending a proceeding against another in relation to the whole or any part of a proceeding if satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding. Section 143(3) relevantly provides that for the purposes of this section, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Rule 13.13 of the Rules, provides as follows:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The exercise of the powers to summarily dismiss or terminate proceedings must be attended with caution, whatever the basis: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24], per French CJ and Gummow J. “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way”: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], per Gaudron, McHugh, Gummow and Hayne JJ. The relevant assessment involves a judgment by the Court as to whether the party bringing the proceeding has a “reasonable” prospect of prosecuting it: Spencer at [52], per Hayne, Crennan, Kiefel and Bell JJ.
Noting that such assessments are made in the absence of a full and complete factual matrix and argument, the determination of such applications “requires 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) 220 FCR 256; [2013] FCA 641 at [46], per Reeves J; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7], per Perry J. The onus is on the party seeking summary dismissal to persuade the Court that the application has no reasonable prospect of succeeding: Cassimatis at [45].
CONSIDERATION
Length and explanation for delay
The review application was made 22 days after the time prescribed by r 21.02(1) of the Rules. This is not an excessive delay, however, I consider it is not insignificant in the context of the prescribed period of seven days.
The applicant did not elaborate on the information provided in his affidavit and set out at [7] above. No detail is provided of the attempts he made to contact migration agents following the summary dismissal of the JR application.
There is no information before the Court suggesting the applicants were given express notice of the time limits which apply in these circumstances. The Minister acknowledged that was the case but submits that a failure to appreciate the time limits involved does not in and of itself provide a reasonable explanation for the delay.
Ignorance of time limits is not generally regarded as a satisfactory explanation for delay, even for a self-represented litigant: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [5]-[6], per Flick J; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38], per Foster J. Parties are expected to make proper enquiries to determine when a review application is required to be lodged: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33], per Cowdroy J.
In this case, the applicant has deposed to making inquiries and then taking action to file the review application when he was advised of the relevant time limit. He was not cross-examined on this evidence. I am prepared to accept that was the case. The applicant has explained the delay albeit in little detail. Ultimately, I do not consider the length of and explanation for the delay to be a key consideration in this case. I would have been minded to grant the extension if the review application had merit.
Prejudice
I do not understand it to be suggested that the Minister would be prejudiced by the grant of an extension of time. I accept, however, that the absence of prejudice is not a sufficient reason to grant an extension of time: Hunter Valley at 349.
Merits of the underlying proceedings
In my view, this is the key consideration when determining whether to grant the applicants an extension of time in which to file their review application. An assessment of the merits requires consideration of the statutory framework relating to the Tribunal’s powers where an applicant fails to attend a scheduled hearing and the criteria for the visa.
Statutory framework – s 362B in context
The delegate’s decision was one which met the description of a Part-5 reviewable decision pursuant to s 338(2) of the Act. Part 5 of the Act deals with the review by the Tribunal of “Part-5 reviewable decisions”.
The conduct of a review is governed by Div 5 of Pt 5, which is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 357A(1). In applying Div 5 of Pt 5, the Tribunal “must act in a way that is fair and just”: s 357A(3). What is “fair and just” in respect of the acts of the Tribunal in a particular case is to be ascertained by reference to “the purpose of the provision which requires that the act be done or which gives the discretionary power to the tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole”: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332; [2013] HCA 18 at [58], per Hayne, Kiefel and Bell JJ.
Subject to certain exceptions which are not presently relevant, the Tribunal is required to invite the applicants “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”: s 360(1). The invitation to appear must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear: s 360A(1). Where the applicant is not in immigration detention (as was the case in this matter), the notice of hearing must be given by one of the methods specified in s 379A: s 360A(2)(a). Relevantly, those methods include a member or officer of the Tribunal transmitting the document by email to the last email address provided by the recipient in connection with the review: s 379A(5)(b) and (d). Any notice to attend a hearing must give the recipient at least 14 days notice of the hearing: reg 4.21(4)(b)(i) of the Regulations. That period commences on receipt of the notice of the invitation to appear before the Tribunal: s 360A(4) and reg 4.21(4)(a) of the Regulations. Finally, the hearing notice is required to contain a statement of the effect of s 362B: s 360A(5).
Section 349(2) of the Act sets out the Tribunal’s powers on review and relevantly provides that the Tribunal may, if the applicant fails to appear, exercise a power under s 362B in relation to the dismissal or reinstatement of an application. Section 362B provides:
Section 362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so — reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
(1D)If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
(Notes omitted).
Where the Tribunal gives a document to a person by email, which includes a hearing invitation given pursuant to s 360A or a notice of decision made pursuant to s 362B(2), the person is taken to have received the document at the end of the day on which it was transmitted: s 379C(5) of the Act.
In the event an applicant does not appear before the Tribunal when invited to do so pursuant to s 360 of the Act, the Tribunal has three options available to it: it may make a decision on the review without taking any further action to allow or enable the applicant to appear before it; it may dismiss the application without any further consideration of the application or information before the Tribunal; or it may reschedule the hearing. The first two options pursuant to s 362B(1A) of the Act are available where the statutory condition for the exercise of the power is met, namely when the applicant does not appear when validly invited to a hearing in accordance with ss 360 and 360A of the Act: SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 at [30] per Besanko J (Moore and Buchanan JJ agreeing). A purported exercise of power in the absence of compliance with ss 360 and 360A of the Act constitutes jurisdictional error: SZFOH at [26].
Where the Tribunal dismisses an application pursuant to s 362B(1A)(b), an applicant may, within 14 days of receipt of notice of the decision, apply for reinstatement of the application: s 362B(1B). If the applicant fails to make an application for reinstatement within the time allowed, the Tribunal must confirm the decision to dismiss the application: s 362B(1E). In that case, the decision the subject of the application is taken to be confirmed.
The discretionary powers conferred on the Tribunal under s 362B(1A) of the Act “are subject to an implied condition requiring those powers to be exercised in accordance with the principles of legal reasonableness”: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] FCA 975 at [64] per Horan J. In determining whether a particular exercise of power is legally unreasonable or not, it is necessary to have regard to the statutory context of the provision conferring the power: DKN17 at [66]. There must be an intelligible justification for the decision and it must be reached by the decision-maker “through an intelligible decision-making process”: DKN17 at [67] citing ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [20], per Kiefel CJ, Bell, Gageler and Keane JJ at [20]. Ultimately, as was explained by Justice Horan in DNK17 at [99]:
It remains within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case — whether to grant an adjournment and reschedule the hearing, to make a decision on the review, or to dismiss the application. However, the decision by the Tribunal must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.
Subclass 186 visa criteria
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. When undertaking its review function, which “involves a fresh consideration of the application which led to the decision under review”, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the Regulations for the visa have been satisfied: Li at [10], per French CJ. If the relevant criteria are not satisfied, the Tribunal has no option but to affirm the decision refusing the visa.
For applicants applying for a Subclass 186 visa in the Direct Entry stream, the primary criteria are set out in subdivisions 186.21 and 186.23 of Sch 2 to the Regulations. This, relevantly, includes cl 186.233 which provides:
186.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(10); and
(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.
The operation of the analogous cl 187.233 of Sch 2 to the Regulations was explained by Mortimer J (as her Honour then was) in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 as follows:
88.... In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. … The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
…
90.... The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
Applicant’s submissions
The applicant had considerable difficulty articulating grounds for opposing the Minister’s application for dismissal. The applicant found it difficult to identify how the Tribunal’s decision to dismiss the application was affected by error. It is notable the applicant’s affidavit did not address the applicants’ failure to attend the Tribunal’s hearing. When asked to address arguments that the remittal of the matter to the Tribunal to be reheard would be futile, the applicant responded he knew there was nothing on his side at the moment. When I asked why the applicant says he has reasonable grounds to argue that the Court should not make an order summarily dismissing the JR application, the applicant responded that he needed to sort out his passport and visa. The applicant also told the Court that anything his migration agent said, he followed. This was not proffered as an explanation for his failure to attend the Tribunal hearing but to explain the grounds set out in the JR application.
Taking the applicant’s affidavit as submissions, the applicant complains the Tribunal should have considered the merits of his claim, rather than dismissing his application for failing to attend the hearing. As to the merits, the applicant submits that consideration ought to be given to the reasons why the sponsor withdrew its nomination of the applicant, his history of work and study prior to that occurring and the circumstances which made it difficult for him to obtain another sponsor. He also argues the hardship that will be caused by failing to grant him a visa is a relevant consideration. Finally, he argues the Tribunal had the option and power to grant his visa application.
Minister’s submissions
The Minister argues the Tribunal’s dismissal decision was properly made as the applicants had been validly invited to the hearing and the applicants did not appear. In those circumstances, the Tribunal was empowered to dismiss the matter without any further consideration pursuant to s 362B(1A)(b) of the Act. The Minister submits the Tribunal’s choice of the dismissal pathway was legally reasonable.
The Minister notes the applicants’ grounds of review set out in their JR application do not cavil with the basis of the Tribunal’s dismissal decision. As to the first ground which alleges a failure to take into account a relevant consideration, the Minister argues there are no mandatory criteria prescribed for the exercise the discretion pursuant to s 362B(1A) of the Act. The only issue for the Tribunal was whether to exercise the power to determine the matter on the merits or to dismiss the application without considering it further. It chose the latter path. The applicants did not make an application for an adjournment. The Minister submitted the choice of path is a matter over which reasonable minds may reach different conclusions, but falls within the range of legally permissible outcomes: Li at [28], [66] and [105].
In respect of the complaints in grounds two and three that the Tribunal either ignored cll 186.233 and 186.242 or misinterpreted cl 186.233 of the Regulations, the Minister argues the Tribunal was not required to make findings in respect of the applicant’s substantive claims because it chose to proceed pursuant to s 362B(1A)(b) of the Act. The Tribunal was, therefore, not required to consider those clauses.
As to the complaint at ground four that the Tribunal erred at law, the Minister argues the Tribunal correctly applied the law governing its decision, namely s 362B(1A)(b) of the Act.
Although the applicant has not sought a review of the confirmation decision, the Minister submitted that for the avoidance of doubt, there was no arguable basis for error in respect of that decision either. The Minister submits the applicants were provided proper notice they could apply for reinstatement and did not do so. In those circumstances, the Tribunal was obliged to make the confirmation decision pursuant to s 362(1E) of the Act.
Finally, the Minister submits that even if there was an error identified in the Tribunal’s reasoning, it would be futile to remit the matter to the Tribunal where the applicant does not have a sponsor and an approved nomination. The Minister submitted there is required to be a correlation between the position specified in the application and the sponsor: Singh.
Discussion
Tribunal’s decision to dismiss was open and legally reasonable
The applicants have not sought to argue they were not validly invited to a hearing by the Tribunal. I have carefully considered the invitation sent to the applicants and have concluded it conformed with the requirements of ss 360 and 360A of the Act for the following reasons:
(a)the invitation gave the applicants notice of the day on which, and the time and place at which, the applicants were scheduled to appear as required by s 360A(1) of the Act. It advised the hearing was to take place on 8 February 2019 at 1.30pm, at Level 4, 15 William Street, Melbourne VIC 3000;
(b)the notice of hearing was transmitted from the Tribunal’s Migration Review Division email address on behalf of the Registrar to the applicants by email to the email address provided by the applicants. There is no evidence the contact details for the applicants were changed in the period between lodging the application and the issuing of the invitation. I note the email address provided to the Tribunal is the same email address that has been provided to the Court. This is a method specified in s 379A(5)(b) and (d), and therefore complied with the requirement set out at s 360A(2)(a) of the Act;
(c)the notice was sent to the applicants by email on 15 January 2019. Pursuant to s 379C(5), the applicants were taken to have received the notice at the end of the day. The hearing was scheduled to take place on 8 February 2019. The applicants were, therefore, given 24 days notice of the hearing. This exceeded the 14 days notice required to be provided pursuant to s 360A(4) of the Act and reg 4.21(4)(a) and (b) of the Regulations;
(d)in addition to the matters set out at [19] and [20], the hearing invitation and attached information sheet advised of what to do when a person cannot attend a hearing and the process for seeking an adjournment. The information contained in the invitation letter and its attachment, in my view, contains a statement of the effect of s 362B as is required by s 360A(5).
The applicants did not attend the hearing in response to the Tribunal’s valid invitation to do so. The statutory conditions for the exercise of one of the powers pursuant to s 362B(1A) were, therefore, met.
In addition, it is apparent the applicants had not engaged with the Tribunal since lodging their application for review. There was no response received to the Tribunal’s letter dated 30 November 2018: see [18] above. The applicants also did not return a completed ‘Response to hearing invitation – MR Division’ form to the Tribunal in advance of the hearing: see [21] above. There is no evidence the applicants sought an adjournment. They were sent two SMS reminder messages about the hearing: see [22] above.
The Tribunal in its written statement of decision referred to the hearing invitation and the reminder messages sent to the applicants. It was satisfied the applicants had been properly invited to the hearing. It concluded no satisfactory reason had been provided for failing to attend. Each of the conclusions was open on the information before the Tribunal. Against that background, the Tribunal exercised its power to dismiss the proceedings without further consideration of the application or the material before it. This was an option open to the Tribunal pursuant to s 362B(1A).
I do not consider it is reasonably arguable that the applicants have reasonable prospects of succeeding on any ground of judicial review directed at the Tribunal’s decision to dismiss the application pursuant to s 362B(1A)(b). There was nothing before the Tribunal to suggest that an adjournment might be required. The applicants made no application for one and had otherwise not communicated with or provided any documentation during the course of the review: c.f. EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [23], per Lee J. It appears the action to dismiss the proceedings was a course that is defensible in the circumstances with which the Tribunal was faced: EBS17 at [22]. It does not appear that the dismissal decision was plainly unjust or lacking any “evident or intelligible justification”: DNK17 at [99]. By taking that course, rather than determining the application on its merits, the Tribunal provided the applicants an opportunity to apply for reinstatement. The applicants did not seek reinstatement. For the sake of completeness, the Tribunal then exercised the only power open to it in the circumstances, which was to confirm the dismissal on 27 February 2019 pursuant to s 362B(1E) of the Act.
In respect of the applicants’ grounds of review set out in the JR application, they may be dealt with briefly. First, it has not been demonstrated the Tribunal failed to take into account a relevant consideration. The Tribunal approached the task of determining which path to take when the applicants did not attend the hearing by reference to relevant considerations including the validity of the hearing invitation, reminders given and absence of explanation for failing to attend. I can discern no relevant matter that was overlooked which would suggest a different path ought to have been taken. In my view, there were other matters not expressly referred to by the Tribunal, namely the applicants’ absence of engagement with the Tribunal’s processes, which provided further justification for electing the path it did.
Secondly, the Tribunal was not required to consider the substance of cll 186.233 and 186.242 of the Regulations as it had determined to proceed without considering the merits of the matter any further. This was a decision it was entitled to take and, as I have explained above, was one that was legally reasonable. It follows that the applicant’s complaints set out in his affidavit which refer to the background of the withdrawal of his sponsor and prior work and study history are without merit. If the applicants wanted the merits of their visa application to be assessed, it was incumbent on them to attend the hearing or apply for reinstatement so that could occur. There is no guarantee the merits of an application for review will be considered in the absence of engagement with the Tribunal’s processes.
Finally, I can discern no basis upon which it is open to conclude the Tribunal erred at law. No particulars have been provided. The decision it took is one that was legally open and intelligible on the information before it. It follows that I do not consider the applicants have demonstrated an arguable case that they have reasonable prospects of successfully prosecuting their JR application.
Remittal to the Tribunal would be futile
I also agree with the Minister that any remittal of the application to the Tribunal would be futile. The applicant’s affidavit confirms the withdrawal of the nomination application by the sponsor. He has also deposed to his employment with the sponsor being terminated following a change of ownership. On those grounds alone, it is not possible for the applicant to satisfy the primary criteria of the visa set out in cl 186.233 of the Regulations. The application for the visa must identify the position to which the application relates. The position must be the subject of a nomination identifying the applicant in relation to the position. The person who will employ the applicant is required to be the same person who has made the nomination to which the application relates. That nomination, in turn, must be approved by the Minister and not be subsequently withdrawn. On the applicant’s own evidence, the nomination has been withdrawn and the applicant will not be employed by the person who made the nomination. The primary criteria are not capable of being satisfied in respect of the visa application that was before the Tribunal even if the applicant obtained a new nomination for a position offered by a different sponsor. As Mortimer J (as her Honour then was) explained in Singh at [90] the visa application involves a “once off” process where the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
Summary of merits
The applicants’ JR application has no reasonable prospects of success. It follows that the Minister’s dismissal application would succeed on a de novo review if the applicants’ review application were allowed to proceed, there being no real question of law or fact that should be decided at a hearing: see Cassimatis at [46].
Summary of extension of time factors
I am not satisfied it is appropriate to grant the applicants an extension of time to seek review of the Registrar’s decision as it is not reasonably arguable they will be able to successfully resist the Minister’s dismissal application.
CONCLUSION
The application for an extension of time pursuant to s 256(1)(b) of the FCFCOA Act and r 21.02(2)(a) of the Rules for the applicants to seek review of the Registrar’s decision is refused. Consequently, the orders made by the Registrar summarily dismissing the JR application pursuant to r 13.03(a) of the Rules and awarding costs in the sum of $4,189.38 must stand.
I will hear the parties as to the costs of the extension of time application.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 25 November 2024
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