Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1160
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1160
File number(s): ADG 318 of 2022 Judgment of: JUDGE VASTA Date of judgment: 15 November 2023 Catchwords: MIGRATION – review of judicial registrar’s decision – extension of time – application refused Legislation: Federal Circuit and Family Court Act 2021 (Cth): s 254
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 21.02
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 15 November 2023 Date of hearing: 15 November 2023 Place: Brisbane Counsel for the First Applicant: The First Applicant appearing on his own behalf with the assistance of an interpreter Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
ADG 318 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KETANKUMAR KANAIYALAL PATEL
First Applicant
DARSHIKA KETAN PATEL
Second Applicant
VANSH KETAN PATEL (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 22 August 2023 be refused.
2.The First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1400.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 8 August 2023, the Registrar in Migration summarily dismissed an application by the applicants to review a decision of the AAT. The power of the Registrar to dismiss the matter comes from delegations given to the Registrar under the Federal Circuit and Family Court Act 2021 (the Act). As a safeguard, section 254 of the Act allows for an applicant to review a decision of the Registrar, if the Registrar had made that decision pursuant to a delegation from this Court.
The application must be filed in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules). The Rules state that the application must be filed within seven days of the Registrar’s decision, unless an extension has been asked for (see r 21.02). This application was not filed within that timeframe. The applicant has not spoken about the delay but has instead spoken about the merits. I will still treat the matter as if the applicant had made an application for extension of time.
The applicant filed this application 14 days after the Registrar’s decision. There are different rules as to the timeframe within which to file reviews depending upon the jurisdiction which the Registrar was exercising. This conflict may be confusing to some. If the Registrar had made a decision pursuant to the Family Law delegations, then the applicant would have 21 days in which to file an application for review. But in General Federal Law matters, it is only seven days. The applicant filed in 14 days, which may be a splitting of the difference. The anomaly in the filing times is something that may need to be looked at by others at a later time.
In any event, unless the merits of the application illustrate that the applicant has, at least, an arguable case for the relief sought, an extension of time should not be granted. It seems to me that it is appropriate for me to deal with the merits of the application and that would be the matter that will decide whether I would grant leave or not.
The AAT made their decision not to grant the applicant an employer nomination (permanent) (class EN) visa on 28 November 2022. The applicant, Mr Patel, also has, as part of his application, his wife and his two sons. They are the second, third and fourth applicants. The application of the wife and the two sons rises and falls upon the application of Mr Patel.
Mr Patel and his wife are citizens of India, who left India and went to Kenya. They now have Kenyan passports. The two children were born in Kenya when Mr and Mrs Patel were working in Kenya.
Mr Patel described a harrowing incident that occurred in Kenya in which the safety of himself and his family was put at risk. For this reason, they wished to leave Kenya and examined a number of methods by which to leave that country. In the end, they came to Australia on what was then known as the “457 visa”.
The applicant had a sponsor by the name of Reform Constructions Pty Ltd. Their nomination of a position was approved and the applicant’s nomination for the temporary visa was approved. The applicant began working for Reform Constructions Pty Ltd in March 2015 and the family ended up coming to Australia and moving here.
The Migration Regulations allowed the applicant, if he had worked for two years in continuous service for the approved nominee employer, to apply for a permanent visa. The applicant did apply for that visa on 19 May 2017.
In applying for that visa, it was then necessary for Reform Constructions Pty Ltd to also apply for a sponsor approval. The Department, on 19 June 2019, refused the application of the employer as an approved sponsor. This meant that the applicant did not have an approved sponsor. As a consequence, the applicant could not fulfil the requirements of the visa because he did not have an approved employer sponsor. On 23 July 2019, the delegate refused the visa.
The employer sponsor went to the AAT to have their decision looked again and the applicant went to the AAT to have his decision looked again. By the time the AAT was able to look at the sponsor, the sponsor had ceased trading and had been deregistered. That meant that, as a corporation, the sponsor no longer existed. Because the sponsor no longer existed, the applicant did not have a position available from an approved sponsor.
The applicant said to the AAT that he had worked the required period. He said that he had fully met all other requirements from his end, as a visa applicant, to satisfy the requirement. However, the company which sponsored him did not meet the requirement and so, the nomination was refused.
The deregistration of the business was beyond his control and unstoppable. He said to the AAT that he worked and paid all his taxes and he abided all his visa conditions and he followed the guidelines to meet the requirements of the visa. He said that for him not to have the visa would be unfair.
Whilst the AAT held quite some sympathy for the applicant, the law did not allow any form of discretion to come within the adjudication of whether the requirements for the visa were met.
The criterion of the visa clearly said:
·that the nomination of the employer must have been approved and not subsequently withdrawn;
·that there was no adverse information known to the Minister about the person who made the nomination;
·that the position is still available to the applicant; and,
·That the application of the employee was made no more than six months after the nomination of the position was approved.
Those requirements were simply not able to be met by the applicant.
The AAT had really very little choice but to make the decision, that it made, that the applicant must be refused the visa.
The AAT didn’t list all of the other matters about which they had sympathy for the plight of the applicant but that is not a matter for the AAT, as it noted, and it may have been something for the Department, or the Minister, to consider under their discretion.
Nevertheless, the applicant came to this Court seeking a review with one ground
Administrative Appeals Tribunal had not acted in the best interests of the applicant (procedural fairness issue) as mentioned in affidavit attached here with (sic)
In the applicant's affidavit that annexed the decision of the AAT, the applicant spoke again about having met all of the obligations from his side and that it was not his fault that the employer was not able to meet their obligations.
In that sense, the applicant said
I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should 'be fair to make it decision and must look into all necessary aspects (sic)
One can certainly understand why it is that the applicant feels this way, but, as I have said repeatedly throughout this hearing to the applicant, it does not matter how sorry a decision-maker here may feel, or how unfair the decision may seem looking it at in light of all the circumstances. The hands of the decision-maker are tied. The applicant either meets the criteria or does not meet the criteria, and no matter what sympathetic or compassionate circumstances there are, those circumstances cannot be substituted for the need for the requirements to be met. The Registrar had the delegated power to summarily dismiss a matter, and the delegate did do so.
I must conduct a hearing de novo, and that is to look again at all of the circumstances to determine whether or not there is reasonable prospects of the applicant being able to successfully prosecute the judicial review application.
This matter is a futile matter. The applicant cannot fulfil one of the basic prerequisites for the grant of the visa and therefore would never be able to be granted the visa. This is the sort of matter that needs to be summarily dismissed, because, as has been seen by the way in which the applicant has conducted the case, the applicant has held onto a forlorn hope that somehow, some way, some Court may feel sorry for him and allow him to stay. To drag this matter through the Court for longer than it should, the Court is actually being cruel to the applicant.
After explaining the position to the applicant, he asked the Court for some form of extension to allow him to stay in the country for sufficient time to enable him to try and find another sponsor who would sponsor him and allow him to make a successful application for a visa.
This is not my task, and I cannot do anything to allow that. This is a matter totally for the discretion of the Department. I feel great sympathy for the applicant, and I can understand that he feels that he has contributed positively to the Australian society for eight years. He has done whatever he could to maintain and comply with all of his visa regulations. He says that other persons, upon whom he is dependent, have not shouldered their responsibilities towards Mr Patel in an appropriate manner. But, as I say, this aspect is solely a matter now for the Department, and it is up to them as to whether anything I have said today is of use to them in making any decision.
For the reasons I have already given, I am of the view that there is no reasonable prospect of the applicant being able to successfully prosecute this application for review. This is a matter that is properly summarily dismissed under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. I refuse the application for extension of time with costs fixed in the sum of $1400, which I note is far below that of the scale amount.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 7 December 2023
SCHEDULE OF PARTIES
ADG 318 of 2022 Applicants
Fourth Applicant:
DHEER KETAN PATEL
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