Rajbhandari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 569
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rajbhandari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 569
File number: MLG 1730 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 28 June 2024 Catchwords: MIGRATION – Application to review decision of Registrar under Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021– application filed out of time – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2), 190.
Migration Act 1958 (Cth) ss 360, 362B, 362B(1A)(b), 326B(1B), 362B(1E), 379A(5).
Migration Regulations 1994 (Cth) cl 500.212(a).
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13(a), 21.02(1), 21.03(2), 21.04(1), Div 21.2, Sch 2 Pt 1, Sch 2 Pt 2.
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Cases cited: Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 686
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v the Commonwealth (2010) 241 CLR 118
Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 14 May 2024 Place: Melbourne Advocate for the Applicants: Mr Warraich appearing via Microsoft Teams Solicitor for the Applicants: HUK Legal Services Advocate for the Respondents: Mr Anastasi Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1730 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOLLY RAJBHANDARI
First Applicant
ANUP KASJU
Second Applicant
MARCELLA KASJU
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.Permission to extend the time for filing of the Application for Review filed 10 May 2024 (‘Application for Review’) be refused, and the Application for Review be otherwise dismissed.
2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $2,435.81.
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 BLAKE:
INTRODUCTION
This is an application to review a decision of a Registrar of this Court (‘Review Application’). On 12 April 2024, the Registrar made an order summarily dismissing the Applicants’ application for judicial review under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘Rules’). The Review Application is opposed by the Minister.
For the reasons that follow, I have decided to refuse to extend the time for filing the Review Application, and to otherwise dismiss the Review Application.
BACKGROUND
The background in this matter was summarised by the Registrar in his decision at paragraphs [4]-[10]. The Applicants’ legal representative took no issue with that summary, and it is convenient to reproduce it below:
4.The first applicant arrived in Australia over 16 years ago as the holder of a student visa (CB 67, 119). The second applicant is her husband, and the third applicant is their minor-aged child. The applicants have extended their stay in Australia through the grant of further student visas and associated bridging visas (CB 67).
5.On 12 March 2017, the applicants applied for the student visa that is the subject of these proceedings (their fourth student visa application – CB 120) so that the first applicant could undertake a Bachelor of Business between 23 March 2017 and 25 October 2019 (CB 4), although the confirmation of enrolment reproduced at CB 57 suggests the course was scheduled to conclude on 13 July 2018. In any event, the first applicant told the Tribunal that she did not complete the course (CB 122).
6.The delegate refused to grant the student visas to the applicants because they were not satisfied that the first applicant met the genuine temporary entrant criterion for the visa provided for in cl 500.212(a) in Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations) (CB 68). The delegate relevantly concluded that the first applicant “appear[ed] to be using the Student visa program as a means to extend their stay in Australia and that they do not genuinely intend to stay in Australia temporarily as a full time student” (CB 68).
7.On 17 July 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 73). On 25 January 2019, the Tribunal invited the applicants to attend a hearing on 12 February 2019 (CB 130). The applicants requested a postponement of the hearing on medical grounds (CB 145-147), and the Tribunal agreed to postpone the hearing until 2 April 2019 (CB 153). However, the applicants did not attend the hearing on 2 April 2019 (CB 156). Later that day, the Tribunal dismissed the review application pursuant to s 362B(1A)(b) of the Act (the dismissal decision) (CB 160). The Tribunal’s decision record for the dismissal decision relevantly states the following (CB 160):
The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 2 April 2019 at 1.30pm.
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 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 with s.379A(5), the invitation has not been returned to sender.
No satisfactory reason for the non-appearance has been given.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
8.The Tribunal notified the applicants of the dismissal decision by email sent on 3 April 2019 (CB 157). The cover letter accompanying the dismissal decision relevantly stated the following (emphasis in original) (CB 159):
You may apply to us, in writing, for reinstatement of the application by 17 April 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.
9.The applicants did not apply for reinstatement of their Tribunal application on or before 17 April 2019 (CB 170, [4]), or at all. However, the applicants must have received the Tribunal’s email attaching the dismissal decision and cover letter because on 9 May 2019, their agent sent the Tribunal an email as follows (CB 163):
We received notification to dismiss the application on 03 April 2019, however up to today's date we have not received any letters from AAT regarding final confirmation of the dismissal decision. I would like to request for a written statement to confirm the dismissal of the application.
I appreciate if you can email me the requested decision.
10.On 21 May 2019, the Tribunal confirmed the dismissal decision (the confirmation decision) (CB 169). The Tribunal’s decision record for the confirmation decision relevantly states the following (emphasis in original) (CB 170, [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.
The Applicants filed an Application for Judicial Review of the decisions of the Tribunal in this Court on 3 June 2019. The Application for Judicial Review was accompanied by an affidavit of the First Applicant. This Application for Judicial Review was subsequently amended on 21 September 2020, and again on 12 October 2020 (‘Application’).
On 24 November 2021, the Court made orders listing the matter for a summary dismissal hearing on a date to be advised, and also made other procedural orders.
The Minister’s application for summary dismissal of the Application was heard on 9 April 2024. As noted above, the Registrar made an order on 12 April 2024 summarily dismissing the Application.
On 10 May 2024, the Applicants filed the Review Application.
Before me the Applicants were represented by Mr Warraich, Solicitor, from HUK Legal Services (‘Mr Warraich’). The Minister was represented by Mr Anastasi, Solicitor, from Clayton Utz.
LEGAL PRINCIPLES
Review of Registrar’s powers are dealt with under Division 21.2 of the Rules. In particular:
(a)an application for review of a Registrar’s decision must be made within seven days of the decision (rule 21.02 (1));
(b)the time prescribed by rule 21.02(1) may be extended in a proceeding by the Court or a Registrar on any terms the Court or Registrar thinks fit, or with the consent of the parties to the proceeding (rule 21.02(2));
(c)an application for review 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 (rule 21.03 (2)); and
(d)a review of an exercise of power by a Registrar must proceed by way of hearing de novo (rule 21.04 (1)).
The Registrar was dealing with an application for summary dismissal. It is well-settled that in considering an application for summary dismissal under rule 13.13(a) of the Rules, or an application for summary judgment under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’), it is necessary to establish that an applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v the Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473. Any application for summary dismissal must be exercised with caution, given that it is an order made at the preliminary stage of proceedings. The onus is on the party seeking the proceeding be summarily dismissed to persuade the Court that an applicant has no reasonable prospect of success.
THE APPLICATION FOR AN ADJOURNMENT
Mr Warraich sought that the hearing before me be adjourned in order for him to properly prepare for the matter. He stated that the matter had only been filed in the Court on 10 May 2024, and that he required further time to prepare.
I refused the adjournment application. The Rules require that any application of this type must be listed as soon as possible, and in any event, within 14 days from the date of filing. Rule 21.03(2) is clear in its terms, and Mr Warraich would have been aware of it when he made the Review Application. It was incumbent on him to be prepared. I also observe that this is a case in which the decision of the Registrar was made one month ago. Mr Warraich was on the record since before the Registrar made his decision and was present to argue the matter before the Registrar. He must be taken in those circumstances not only to have known what the issues would be in this Court, but to have had all of the time since the decision of the Registrar to consider the matter further and prepare.
It is well known that wait times in this Court for a hearing are long and that the Court is seriously overburdened, particularly in relation to the number of applications for judicial review of migration decisions awaiting a hearing date. This case is proof of that, having been filed almost five years ago in June 2019. The Court must weigh in the balance the appropriate use of scarce Court time and resources. This matter was allocated a hearing date in accordance with the Rules. Simply adjourning the matter to a later date deprives other waiting litigants of court time, and further adds to the listing burden on the Court. In respect of these matters, I refer to, and also rely upon, the overarching purpose set out in section 190 of the FCFCOA Act.
Finally, as will become apparent, the Application has no reasonable prospect of success.
For all of the above reasons, I refused the adjournment application.
THE GROUNDS IN THE REVIEW APPLICATION
In the Review Application, the Applicants specify the orders they seek as follows:
1.That the Orders of the Honourable Judicial Registrar be reviewed, and the matter be remitted to the Administrative Appeals Tribunal for de novo proceedings in accordance with law.
2.The First Respondent be ordered to pay the Applicant’s cost of the review as agreed or assessed and be ordered to pay the Applicant’s filing fee.
In the affidavit filed by the First Applicant in support of the Review Application, she states:
2.That I am the main applicant in the Application for Review.
3.That the information provided is true and correct.
4.Administrative Appeals Tribunal handed down written decision on 21 May 2019.
5.The decision is attached to this affidavit.
6.Administrative Appeals Tribunal erred in law.
7.That the Honourable Judicial Registrar [omitted] handed down decision on 12 April 2024 and attached with the review application.
8.That the Honourable Judicial Registrar [omitted] handed down decision on 12 APRIL 2024 be remitted to Administrative Appeals Tribunal.
The grounds set out in the Application are as follows:
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.
a.In considering whether the visa applicant met the visa grant certificate criteria required by the regulations, the Tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant’s control.
b.The Visa applicant was not at fault and yet was affected by exceptional circumstances.
[reproduced exactly from the Application]
Mr Warraich for the Applicants did not meaningfully expand orally on any of these grounds before me. He indicated he relied on the submissions made before the Registrar. There is a real difficulty with that submission, which I will come to later. Mr Warraich did submit that the First Applicant had not been provided an opportunity to present the case before the Tribunal because of a medical condition.
THE APPLICATION TO PROCEED OUT OF TIME
Rule 21.02(1) of the Rules require that any application for review of the exercise of a power by a Registrar must be made within seven days. The Registrar made his decision on 12 April 2024. The Review Application was lodged with the Court on 7 May 2024, and accepted for filing on 10 May 2024. Accepting for present purposes, and for the benefit of the Applicants, that the Review Application was filed on 7 May 2024, the Review Application was filed approximately 17 days out of time. It is therefore plain that the Review Application has been filed out of time.
Rule 21.02(2) provides that the time in which any application for review is to be filed may be extended in a proceeding by the Court on any terms the Court thinks fit, or otherwise with the consent of the parties to the proceeding.
The Applicants, even though legally represented, failed to make any application to extend the time for filing the Review Application. On one view, that provides a basis to dismiss the Review Application. I have proceeded, however, as if an application to extend time has been made, given the manner in which the matter proceeded.
The Rules do not prescribe matters that the Court must take into account in considering whether to extend the time for an applicant to seek review of a decision of a Registrar. The types of matters that the Court will ordinarily take into account in situations where an extension of time is needed, however, are well established: see Hunter Valley Developments v Cohen (1984) 3 FCR 344; Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 686; and Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768.
The First Applicant’s affidavit does not address why the Review Application was filed outside the time limit prescribed by the Rules. Mr Warraich for the Applicants provided no explanation for the failure to file the Review Application in time, and did not address any of the matters the Court looks to in deciding whether to extend time.
The extent of delay in this matter is around 17 days. It is not a long period. It weighs towards the extension being granted.
The Applicants proffered no explanation for the delay whatsoever. This weighs against the extension being granted in circumstances where the Rules set a specific time limit and where the Applicants are represented.
The Minister did not point toward any prejudice. That is an appropriate course to take. It is difficult to see there would be any prejudice to the Minister that could not be cured by an order for costs. This factor weighs in favour of a grant of the extension of time.
Finally, the Court should consider whether the matter is sufficiently arguable and whether if I grant the Review Application, the substantive application has any reasonable prospect of success.
As I have noted above, Mr Warraich sought to rely on the submissions he made before the Registrar, and before me said little else. There are real problems with that position.
First, he filed no written submissions before the Registrar. He also did not produce the transcript of what he said to the Registrar.
Second, the Registrar noted that Mr Warraich ‘did not explicitly speak to the ground [Ground 1 of the Application] at the summary dismissal hearing’ (at [23]). He also failed to do so before me.
Third, in respect of Ground 2 of the Application, the Registrar noted that Mr Warraich ‘made no attempt to explain to me at the summary dismissal hearing what his clients thought was unfair about the Tribunal’s process’ (at [24]) (though the Registrar did go on to record at [26] the submission made by Mr Warraich that the [First] Applicant could not apply for reinstatement of her application to the Tribunal because she was ‘very disturbed’).
Before me, Mr Warraich did attempt to expand upon Ground 2. He stated that that the First Applicant had a medical condition that prevented her participation at the hearing in the Tribunal, and was therefore not afforded an opportunity to present her case. The following should be noted about that brief submission. First, it is unsupported by any evidence. Second, the Tribunal granted a postponement of the hearing to the Applicants on medical grounds as noted earlier. Third, even though she was advised that her application to the Tribunal had been dismissed for non-appearance and was advised of the right to seek reinstatement, she did not do so. Fourth, the Tribunal was required to make the confirmation decision in circumstances where the Applicants had failed to seek reinstatement (see further reasons on this below).
Within Ground 2(a), the Applicants also allege that the Tribunal ‘failed to consider all aspects of the appeal and observe the principles of natural justice’, and that the Tribunal failed to consider fully, the facts and circumstances of the case. That assertion, which Mr Warraich did not expand upon orally, does not have reasonable prospects of success. The Tribunal dismissed the matter without considering it further (see further reasons on this issue below). It was not required in the circumstances to consider whether the First Applicant met the criteria for the visa, given the Applicants’ non-appearance. There is no failure to observe the principles of natural justice in all of the circumstances, including what follows.
Putting to one side the Grounds in the Application, the real issue confronting the Applicants’ Application is the operation of the statutory scheme. The Applicants failed to appear at the hearing on 2 April 2019. The Tribunal proceeded to dismiss the Application under section 362B(1A)(b) of the Migration Act 1958 (Cth) (‘the Act’). In order for the Tribunal to exercise this power, the Applicants must have been validly invited to appear before the Tribunal. In this matter, the Applicants were validly invited to appear at the Tribunal Hearing. The invitation set out the time, date and place of the hearing. It was transmitted to the Applicants’ email address. The Invitation complied with the prescribed notice period. The Invitation also contained a statement to the effect of section 362B of the Act. Once a valid invitation was issued, it was open to the Tribunal to proceed to dismiss the application and it ultimately did so. Further, the Tribunal provided a written statement setting out its reasons and sent that statement to the Applicants. Among other things, the Applicants were informed of their right to seek reinstatement. No application for reinstatement was made. The Tribunal was therefore bound to confirm the decision and dismiss the application before it (see sections 362B(1B) and 362B(1E) of the Act). There was no denial of procedural fairness.
When these matters are considered, I am satisfied that the Applicants do not have any reasonable prospect of successfully prosecuting the Application.
For all of the above reasons, any application to extend the time in which to file the Application is refused. The Review Application must be dismissed.
The Minister sought costs according to items 3 and 9(a) of the Scale set out in Schedule 2, Part 1 of the Rules. This was an interlocutory hearing. Part 2 of the Schedule 2 to the Rules does not apply neatly to the circumstances that confront me. I accept it is appropriate to apply the Scale in Schedule 2, Part 1 of the Rules to this matter, and it is appropriate to award costs where the Review Application has been entirely unsuccessful. I will award costs in the amounts sought.
Finally, I heard this matter on the same day as I heard an application to review the exercise of a Registrar’s power in the matter of Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570. At paragraphs [39] – [54], I set out my concerns about Mr Warraich’s conduct in that proceeding, and how Mr Warraich’s conduct reaches the threshold for a costs order to be made against him. Those observations (including my observations about whether Mr Warraich’s conduct falls short of what is expected of solicitors in the Legal Professional Uniform Law Australian Solicitors Conduct Rules 2015 apply equally in this case, where Mr Warraich once again failed to engage with the matters before the Court.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 28 June 2024
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