Poonia v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 395
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Poonia v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 395
File number: PEG 252 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 2 May 2024 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to seek review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicants’ judicial review application – extension of time refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 254, 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.04
Migration Act 1958 (Cth) ss 360A, 362B, 366, 379A, 379G
Migration Regulations 1994 (Cth) reg 4.21, Sch 2, cl 187.233
Cases cited: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Poonia v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 164
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 18 April 2024 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 252 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVINDRA KUMAR POONIA
First Applicant
MANJU KUMARI
Second Applicant
JAYVIN PUNIA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to seek review of the decision made by a Registrar on 1 March 2024 is 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 LADHAMS:
INTRODUCTION
On 1 March 2024 a Registrar of this Court summarily dismissed a judicial review application filed by the applicants in relation to a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed an earlier decision of a delegate of the Minister not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas (visas). The applicants seek review of the Registrar’s summary dismissal decision by way of an application brought pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
The application for review of the Registrar’s decision was filed out of time and the first applicant made an oral application for an extension of time at the hearing. Before I proceed to determine the review application, I must first decide whether to exercise my discretion to grant the applicants an extension of time.
For the reasons explained below, I have decided to refuse to grant the applicants an extension of time to seek review of the Registrar’s exercise of power to summarily dismiss the applicants’ judicial review application.
FACTUAL AND PROCEDURAL BACKGROUND
Visa application and decision made by a delegate of the Minister
On 28 June 2019 the applicants applied for the visas in the Direct Entry stream. The first applicant was the primary visa applicant and the application was based on a nomination for him to work in the position of ‘Hairdresser’ for the Northam Barber Shop (sponsor). The second applicant is the wife of the first applicant and the third applicant is the child of the first and second applicants. The second and third applicants were included in the application as members of the same family unit.
On 11 September 2019 the Department wrote to the applicants indicating that the associated nomination lodged by the sponsor had been refused and it followed that their visa application could not be approved. The letter indicated that the applicants had the option of withdrawing their application and that if no response was received within 28 days and the application had not been withdrawn, then the application would be refused.
The applicants did not provide a response and on 16 October 2019 a delegate of the Minister decided not to grant the applicants visas.
Merits review by the Tribunal
On 26 October 2019 the applicants applied to the Tribunal for review of the delegate’s decision.
The Tribunal wrote to the applicants on 30 August 2023 inviting them to attend a hearing before the Tribunal on 5 October 2023. The applicants’ representative emailed the Tribunal on 8 September 2023 indicating that the first applicant had accepted the hearing invitation. However, the applicants did not attend the hearing convened by the Tribunal on 5 October 2023. The Tribunal case notes indicated that the applicants were sent two SMS hearing reminders on 27 September 2023 and 4 October 2023 to the mobile number of the first applicant provided in the application to the Tribunal.
The Tribunal exercised its discretion in s 362B(1A)(a) of the Migration Act1958 (Cth) (Migration Act) to make a decision on the review without taking any further action to allow or enable the applicants to appear before it.
On 5 October 2023 the Tribunal affirmed the delegate’s decision. The Tribunal identified that the issue for its consideration was whether the applicants were the subject of an approved nomination, which is one of the requirements of cl 187.233 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal had regard to information that on 11 September 2019 the nomination application by the sponsor was refused by a delegate of the Minister and noted that the applicants provided no other evidence. The Tribunal found that the applicants were not the subject of an approved nomination and therefore did not meet the requirements of cl 187.233. The Tribunal found that as the first applicant did not meet the criteria for the grant of the visa, the second and third applicants also did not meet the criteria for the grant of a visa.
Judicial review application
The applicants filed an application on 30 October 2023 seeking judicial review of the Tribunal decision (judicial review application).
The applicants advance the following three grounds of application (reproduced without alteration):
1.The Tribunal failed to give a fair chance to put my case. The Tribunal failed to invite me to attend the hearing via teleconference or via in person. The Tribunal did not contact me or send any reminder to me.
2.The decision made by the AAT lack substantive evidence and is made in error.
3.The Tribunal misconstrued its statuary task or constructively failed to exercise jurisdiction by failing to address ci 187.233 of schedule 2 of the Migration Act 1958.
Summary dismissal application and decision
The Minister in his response to the judicial review application sought an order that the application be 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) (GFL Rules).
The matter was listed before a Registrar of this Court for a hearing of an interlocutory application on 16 February 2024 in relation to the application for summary dismissal.
On 1 March 2024 the Registrar summarily dismissed the judicial review application pursuant to r 13.13(a) of the GFL Rules: Poonia v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 164 (Poonia).
The Registrar found that the applicants faced an insurmountable impediment to their ability to successfully prosecute their application for judicial review. The impediment was that the grant of relief to the applicants, even if they could establish jurisdictional error, would be futile because there is no realistic possibility that the first applicant could ever satisfy cl 187.223 if the matter were remitted to the Tribunal in circumstances where:
(a)there was no reasonable possibility that the sponsor’s nomination for the first applicant would ever be approved where the evidence before the Court showed that:
(i)the sponsor had not applied for judicial review of the Tribunal’s decision concerning the nomination application;
(ii)there was no reasonable possibility that the sponsor would file an application for an extension of time for judicial review of that decision because:
(A)the first applicant told the Tribunal that the sponsor had closed down the business during COVID-19 and was not responding to him; and
(B)the sponsor’s business name was cancelled over four years ago; and
(b)the first applicant cannot satisfy cl 187.233(3) by reference to a new nomination because it is well-established in case law that the ‘position’ referred to in cl 187.233(3) is ‘a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances’: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [88]; see also, Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [141].
The Registrar also found that the three grounds of judicial review set out in the judicial review application had no reasonable prospects of success.
Application for review of the Registrar’s decision
On 27 March 2024 the applicants filed an application for review of the Registrar’s summary dismissal decision (review application).
As explained below, the review application was filed outside of the prescribed time frame and the first applicant made an oral application at the hearing for an extension of time to make the review application.
RELEVANT LEGISLATION AND PRINCIPLES
Review of an exercise of power by a Registrar
In deciding to summarily dismiss the judicial review application pursuant to r 13.13(a) of the GFL Rules, the Registrar exercised the power delegated to him pursuant to s 254 of the FCFCOA Act and item 58 in Table 21.1 in r 21.01(1) of the GFL Rules.
Section 256(1) of the FCFCOA Act provides that a party to a proceeding in which a delegate has exercised the powers of the Court under s 254 may apply to the Court for review of the exercise of that power within the prescribed timeframe. Rule 21.02 of the GFL Rules sets out the prescribed timeframe relevant to this matter and requires an application for review of the exercise of a power by a Registrar to be made within seven days. However, the prescribed timeframe may be extended by the Court on any terms that the Court thinks fit: r 21.02(2)(a) of the GFL Rules.
The review of the exercise of a power by a Registrar proceeds by way of a hearing de novo, in which the Court may receive as evidence any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04 of the GFL Rules.
Extension of time considerations
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) at 348-349. 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.
Summary dismissal
The relevant underlying application for the purposes of the extension of time application is the review application, which in turn relates to the Minister’s summary dismissal application.
Pursuant to s 143(2) of the FCFCOA Act and r 13.13(a) of the GFL rules, the Court may order that a proceeding be summarily dismissed if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospects of successfully prosecuting the proceeding or claim. On a de novo review of the Minister’s summary dismissal application, the Minister would need to establish that the applicants have no reasonable prospects of successfully establishing that the Tribunal decision is affected by jurisdictional error: see AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 (AIZ22) at [37]. ‘No reasonable prospects’ does not require the Court to be satisfied that the judicial review application is hopeless or is bound to fail: s 143(3) of the FCFCOA Act; AIZ22 at [36]. Instead, the Court needs to consider whether, on a critical examination of the available material, there is a real question of law or fact which should be decided at trial: AIZ22 at [36].
HEARING OF THE EXTENSION OF TIME AND REVIEW APPLICATION
The review application came before me for hearing on 18 April 2024. At the hearing I referred the parties to the list of documents before the Registrar, identified at [10] of Poonia, and the parties confirmed that those documents were relevant to the review application. In addition to those documents, I had before me Poonia, the review application, the affidavit of the first applicant filed on 28 March 2024 and further submissions filed by the Minister on 11 April 2024.
At the hearing I explained to the first applicant that the review application was made outside of the time prescribed in the GFL rules, which requires an application for review of the exercise of a power by a Registrar be made within seven days. I allowed the applicants to make an oral application for an extension of time and the first applicant was given an opportunity to give oral evidence to explain the reasons the review application was filed out of time.
Some of the oral evidence given by the first applicant might properly be seen as extending beyond evidence as to why the review application was filed late and might be relevant to matters upon which the applicants rely in the review application in defending the Minister’s summary dismissal application. I made an order at the hearing giving the applicants leave to rely on the first applicant’s oral evidence in the review application, to the extent that it may be relevant to that application.
I heard submissions from the parties in relation to both the extension of time application and the review application in the event that the extension of time is granted.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
It is appropriate to first consider the extension of time application.
Length of the delay
In the present case, the Registrar’s decision was made on 1 March 2024 and the seven-day prescribed time frame to seek review of that decision ended on 8 March 2024. The application for review was electronically lodged with the Court on 27 March 2024 at 8.52pm. As it was received by the Court after 4.30pm, it is deemed to have been filed on 28 March 2024. However, applying EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514, I proceed on the basis that the application was made on 27 March 2024 and is therefore made 19 days late. In oral submissions, Counsel for the Minister characterised the delay as moderate. I accept this characterisation of the delay, in the context of a prescribed time frame of only seven days.
Explanation for the delay
The first applicant did not provide any explanation for the delay in his affidavit filed in support of the review application. I gave the first applicant an opportunity at the hearing to provide oral evidence in relation to the explanation for the delay.
The first applicant gave evidence at the hearing to the effect that he contacted the sponsor when the Registrar gave him the opportunity to, but the sponsor could not sponsor him in the time available before the Registrar’s decision. He approached the sponsor again and when he reached out to the sponsor the second time, the sponsor said he started to think about reopening his business in the Northam area and he still has a contract with the council and shopping centre. After that the first applicant thought that maybe he could get a chance to go with the sponsor or through him and might be able to stay in Australia. He has employment at the moment but his current employer is not sponsoring him or helping him to apply for a visa. With the sponsor considering reopening his business, the first applicant again has a little hope. He may have missed the time to make the review application while waiting for the sponsor to respond to him. In cross-examination the first applicant confirmed that he made a decision to wait until he heard back from his former employer before he applied to the Court.
I accept the Minister’s submission that making a decision to wait for the sponsor to contact the first applicant before filing the review application does not amount to an adequate explanation for the delay. It was a forensic decision made by the applicants not to seek review of the Registrar’s decision within the relevant time frame, because the first applicant wanted to wait until he heard back from the sponsor.
The lack of an adequate explanation for the moderate delay of 19 days in making the review application weighs against the grant of an extension of time.
Prejudice
The Minister has not claimed any specific prejudice as a result of the delay and I do not consider that the Minister would face any specific prejudice as a result of the delay in filing the review application. However, the mere absence of prejudice does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits: whether the applicants have a reasonably arguable case
I then turn to the merits of the underlying application. The underlying application in this case is the review application in relation to the Registrar’s decision to summarily dismiss the applicants’ judicial review application. For the following reasons, the applicants do not have a reasonably arguable case to defend the Minister’s application for summary dismissal of the judicial review application on a de novo review of the Registrar’s decision.
As discussed above, 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 FCFCOA Act and r 13.13(a) of the GFL Rules. This necessarily directs attention to the applicants’ judicial review application.
By ground 1 of the judicial review application, the applicants assert that the Tribunal failed to give them a fair chance to put their case, failed to invite them to attend the hearing via teleconference or in person and did not contact them or send them any reminder.
On 30 August 2023 the Tribunal sent to the applicants an invitation to attend a hearing on 5 October 2023 by telephone. The invitation was an invitation for the purposes of s 360 of the Migration Act and indicated that the Tribunal would contact the applicants on a particular number, which is the same as the number recorded as the first applicant’s mobile number in documents given by the applicants to the Tribunal, including the application for review dated 26 October 2019 and a form appointing a representative dated 11 May 2023. The hearing invitation requested that the applicants inform the Tribunal if that was not the correct number or if they would prefer to be contacted on a different number. The applicants provided a response to the hearing invitation which recorded the same telephone number as the correct number for the first applicant.
The hearing was an opportunity for the applicants to give evidence and present arguments to the Tribunal and to ‘put their case’. Section 366(1)(a) of the Migration Act expressly authorises the Tribunal to allow an applicant to appear before it and give evidence by telephone. The fact that the Tribunal scheduled the hearing by telephone therefore cannot, of itself, give rise to jurisdictional error.
I accept the Minister’s submission that the invitation complied with the requirements of the Migration Act. Section 360A sets out the requirements of the notice of the invitation to attend a hearing and I am satisfied that the notice of the invitation sent in the present case met those requirements because it:
(a)clearly set out the day on which, and the time and place at which, the applicants were scheduled to appear, as required by s 360A(1);
(b)was given to the applicants by email sent to their authorised recipient, which is a method authorised by s 379A of the Migration Act, specifically s 379A(5), read with s 379G of the Migration Act, and therefore complied with s 360A(2);
(c)gave a notice period of more than 14 days, as required by s 360A(4) of the Migration Act when read with reg 4.21(4) of the Regulations; and
(d)contained a statement of the effect of s 362B, which sets out what the Tribunal may do if the applicants fail to appear at the hearing, and therefore complied with s 360A(5).
Contrary to the assertions in the applicants’ ground, the Tribunal’s case notes indicate that it sent two SMS hearing reminders to the applicants on 27 September 2023 and 4 October 2023 respectively. It would therefore appear that the Tribunal did remind the applicants of the hearing, even though it had no statutory obligation to do so.
The Tribunal made two attempts to contact the applicants on the phone number provided by the applicants on the day of the hearing and also made two attempts to call the applicants’ representative. The calls were not answered and the applicants failed to appear at the hearing.
In circumstances where the applicants were properly invited to attend a hearing under s 360 of the Migration Act and did not appear before the Tribunal on the day on which, or at the time and place at which, they were scheduled to appear, it was open to the Tribunal to make a decision on the review without taking any further action to allow or enable the applicants to appear before it: s 362B(1) and (1A)(a) of the Migration Act. The Tribunal was required to act reasonably in exercising its discretionary powers upon the applicants’ non-appearance: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4] (Kiefel CJ), [80], [89] (Nettle and Gordon JJ), [131] (Edelman J). The applicants have not identified anything that made it unreasonable for the Tribunal to proceed to make a decision on the review without taking further action to allow them to appear and there is nothing obvious in the evidence before the Court that would suggest it may have been unreasonable for the Tribunal to proceed to make a decision on the review when the applicants failed to appear at the hearing.
Ground 1 of the judicial review application does not have reasonable prospects of success.
By ground 2 the applicants assert that the Tribunal decision lacked substantive evidence and was made in error. I accept the Minister’s submission that this ground has no reasonable prospects of establishing jurisdictional error in the Tribunal decision because:
(a)the onus was on the applicants to provide sufficient evidence to the Tribunal to show that the first applicant met the requirements of cl 187.233 in Schedule 2 to the Regulations; and
(b)the Tribunal’s conclusion that the first applicant failed to satisfy the requirements for the visa was open to it as there was no evidence to support a finding that he was the subject of an approved nomination.
By ground 3 the applicants assert that the Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction by failing to address cl 187.233 in Schedule 2 to the Regulations. The Tribunal clearly considered and addressed cl 187.233 and found that the first applicant did not meet the requirements of this clause because he was not the subject of an approved nomination. As submitted by the Minister, this finding was based on uncontested evidence before the Tribunal and the Tribunal made the only decision that was open to it on that evidence. There is nothing in the materials before the Court to suggest that the applicants would have any reasonable prospect of establishing that the Tribunal misconstrued its statutory task or constructively failed to exercise its jurisdiction as a result of its approach to cl 187.233.
None of the grounds advanced by the applicants in their judicial review application have any reasonable prospects of success. While I acknowledge the first applicant’s evidence given at the hearing of the review application, to the effect that he is in discussions with the sponsor and is hopeful that the sponsor may reopen his business and sponsor him again, this would not, even if it did eventuate, impact the assessment of whether the decision made by the Tribunal is affected by jurisdictional error. That is because the assessment of whether the Tribunal made a jurisdictional error must be made by reference to the state of affairs that existed at the time of the Tribunal decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J). Any subsequent change in circumstances cannot therefore be the basis of a finding of jurisdictional error.
In the light of my assessment of the grounds in the application, it is not necessary to address the Minister’s submissions on the futility of granting relief to the applicants even if they could establish jurisdictional error.
The applicants’ judicial review application has no reasonable prospects of success. It follows that the applicants would have no realistic prospect of being able to successfully defend the Minister’s summary dismissal application on a de novo review of the Registrar’s summary dismissal decision.
Balance of extension of time factors
Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicants to make the review application. I place particular weight on the following considerations:
(a)the applicants have failed to offer an adequate explanation for a delay of moderate length; and
(b)the underlying application lacks merit because, on a de novo review of the Registrar’s summary dismissal decision, there is no realistic prospect of the Court finding that the applicants have any reasonable prospects of success in their judicial review application.
CONCLUSION
I therefore refuse the application for an extension of time for the applicants to seek review of the Registrar’s decision.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 May 2024
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