Sekander v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 44
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sekander v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 44
File number(s): SYG 1988 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 20 January 2025 Catchwords: MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth) s 140GB
Migration Amendment (Temporary Skills Shortage Visa Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) sub-cl 457.233(4)(a) in Pt 457 of Sch 2
Cases cited: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9; [2001] FCA 929
Jess v Scott (1986) 12 FCR 187
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 223
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491
Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 15 January 2025 Place: Sydney Applicant In Person Respondents Ms L Butterfield of Minter Ellison Lawyers ORDERS
SYG1988/2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD SHAH SEKANDER
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 29 November 2024 be dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $800.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application, brought pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for review of a decision made by Registrar Lindsay (Registrar) on 29 November 2024 to summarily dismiss the applicant’s substantive application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (GFL Rules), with costs.
By way of that substantive application, the applicant had sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision made by a delegate of the First Respondent not to grant the applicant a Subclass 457 Temporary Business Entry (Class UC) visa (visa).
BACKGROUND
The applicant, a national of Bangladesh, applied for the visa on 30 January 2018.[1] The visa application was refused by a delegate of the Minister on 2 October 2018.[2]
[1] CB 23.
[2] CB 78-84.
THE TRIBUNAL’S DECISION
The applicant applied to the Tribunal for a review of the delegate’s decision on 22 October 2018.[3]
[3] CB 85-86.
The applicant appeared before the Tribunal by way of a telephone hearing conducted on 9 June 2020. This was a joint hearing at which the applicant and his proposed nominator had been invited to appear before the Tribunal in order to give evidence and present arguments in relation to their respective review applications. However, the nominator’s contact persons and representative neither attended the hearing nor were they able to be contacted prior to the commencement of the hearing.[4]
[4] CB 135-137.
Following the hearing, the applicant requested the Tribunal provide him with additional time before reaching its decision, as well as an in-person hearing. The Tribunal denied the applicant’s request, stating that ‘the only issue before the Tribunal is whether you have an approved nomination’ which had been explained to the applicant during the hearing on 9 June 2020.[5]
[5] CB 154 at [8]-[9].
Relevantly, sub-cl 457.233(4)(a) in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provides:
457.223
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
On 29 June 2020, the Tribunal ‘confirmed’ the Department’s decision to refuse to approve a nomination under s 140GB of the Migration Act 1958 (Cth) (Act), which had been made by the applicant’s nominator.[6] Given the operation of sub-cl 457.223(4)(a), it was necessary for that nomination to be approved so as to enable the applicant to be eligible for the grant of the visa.
[6] CB 155 at [15].
On 1 July 2020, the applicant was invited under s 359A of the Act to comment on or respond to information indicating that he was not the subject of a nomination approved under s 140GB of the Act which, subject to his comments or response, would be the reason or a part of the reason for affirming the decision under review.[7] The applicant was requested to provide a response by 15 July 2020. The applicant neither responded to this invitation nor sought an extension of time to provide a response.[8]
[7] CB 143-146.
[8] CB 143-146 at [17].
By way of its decision of 22 July 2020, the Tribunal concluded that the applicant was not the subject of an approved nomination made under s 140GB of the Act, and that the requirements of sub-cl 457.223(4)(a) had not been met. The Tribunal also observed that the applicant had not made any claims in respect of the other streams on cl 457.223 and that there was no evidence that the applicant would have been able to satisfy the specific criteria for those streams.[9] Therefore, having not met cl 457.223, the Tribunal affirmed the delegate’s decision not to grant a visa to the applicant.
[9] CB 143-146 at [20].
PROCEEDINGS BEFORE THIS COURT
By way of an application filed on 24 August 2020, made under s 476 of the Act, the applicant sought review of the Tribunal’s decision. The applicant raised the following two grounds of review (reproduced below without alteration):
1.The applicant applied for 457 visa which was refused by the Department of Home Affairs (hereinafter called “DHA”) (formerly Department of Immigration & Boarder protection)
2.The applicant respectfully submit that the AAT has failed in considering natural justice procedural fairness, and further has not given thorough consideration of the applicant latest case.
On 29 November 2024, the matter was summarily dismissed by orders of the Registrar, pursuant to r 13.13(a) of the GFL Rules, and the applicant ordered to pay the first respondent’s costs.
On 19 December 2024, the applicant applied to the Court for a review of the Registrar’s decision.
Pursuant to r 21.02 of the GFL Rules, an application for review of a Registrar’s decision must be made within seven days, however the prescribed time period may be extended on any terms that the Court or Registrar thinks fit. As the decision of the Registrar was made on 29 November 2024, the prescribed period ended on 6 December 2024. The application for review of the Registrar’s decision was lodged with the Court on 19 December 2024, therefore the application was made 13 days after the expiration of the seven day period.
The Minister opposed the extension of time. The Court is therefore required to consider whether or not an extension of time should be granted.
CONSIDERATION
The principles regarding applications for extensions of time were considered in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa), where the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish whether or not it is in the interests of the administration of justice to grant an extension of time, but the Court is permitted to look at a myriad of facts and circumstances including the length of the delay, the reasons for the delay, any prejudice to the respondent, any prejudice to third parties, and the merits of the underlying application.
The principles were also considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’.[10] Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
[10] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40].
The extent of and explanation for the delay
As stated above, the applicant’s delay in filing his judicial review application amounts to 13 days out of time. The delay is relatively short. This points towards an extension being granted.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay.[11]
[11] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
By way of explanation set out in his affidavit accompanying the application for a review of the Registrar’s decision, the applicant stated that the reasons for the delay were that:
(a)he was unsure of the legal rules and regulations relating to the seven day period for filing the application;
(b)he was mentally stressed after receiving the dismissal from the Registrar as it had been mentioned to him that ‘it was not a final hearing but a decision was finalised by the Registrar’.
The applicant also stated that he had emailed the Court to request reasons for the Registrar’s decision but was told that the decision had been delivered orally and there would be no written reasons.
At hearing, the applicant further explained that he thought he had 28 days within which to lodge the present application because his bridging visa permitted him to remain in Australia for a period of 28 days after the Registrar’s decision had been made.
By way of reply, the Minister submitted that the extent of the delay was not insignificant, given the statutory timeframe required the applicant to seek review within seven days. The Minister argued that that the reasons given for the delay are inadequate as ignorance of court processes is not generally regarded as a satisfactory explanation for delay without any further justification: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38] per Foster J. The Minister further submitted that the applicant’s claimed mental stress was not a satisfactory explanation for the delay, as there was no medical or other corroborating evidence detailing how this had adversely impacted the applicant’s ability to apply within the statutory timeframe.
Having considered the parties’ submissions, I am of the view that the applicant has not offered a satisfactory acceptable explanation to the delay in making this application. This weighs strongly against the grant of an extension.
Any prejudice to the first respondent if an extension were granted
Whilst the Minister acknowledged that he would not be prejudiced by the grant of the extension, the Minister submitted that the absence of prejudice does not in and of itself suffice to justify the grant of an extension: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18] per Beach J. The Minister also submitted that there is a significant public interest in the timely and effective disposal of litigation, particularly in public law: Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9; [2001] FCA 929 at [62] per Gyles J.
I consider this factor neutral regarding the grant of an extension.
Public interest and impact on the applicant
There is a public interest in ensuring that administrative decisions are made lawfully. The merits of the substantive grounds relied upon by the applicant, which is considered below, will be relevant in this regard. It has also been recognised that there is a public interest in the finality of administrative decisions.[12]
[12] Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]-[17]; [2000] HCA 67.
With regard to the impact upon the applicant, I accept that if an extension of time is refused the Tribunal’s decision will stand and the applicant will have no prospect of being granted the visa, thereby requiring him to pursue alternative visa options in order to remain in Australia or leave Australia in order to avoid becoming an unlawful non-citizen. I accept that the impact on the applicant is significant, particularly in circumstances where he has resided in Australia over the past 18 years and claims to now have limited connections to Bangladesh and may face difficulties resettling in that country. I consider this to be a matter weighing in favour of the grant of an extension.
Whether the applicant has reasonable prospects of success
Pursuant to r 21.04(1) of the GFL Rules, a review of an exercise of power by a Registrar is to proceed as a hearing de novo. The review is not concerned with identifying errors by the Registrar, but on the basis that the judge is asked to make an order in place of the delegated authority: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [3] per Allsop CJ, Markovic and Colvin JJ.
Accordingly, this Court is required to determine whether the applicant has reasonable prospects of success in relation to any of the grounds raised in the judicial review application pursuant to r 13.13(a) of the GFL Rules: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 223 at [40] per Deputy Chief Judge Mercuri.
As stated above, the following two grounds of review were raised in the applicant’s originating application:
1.The applicant applied for 457 visa which was refused by the Department of Home Affairs (hereinafter called “DHA”) (formerly Department of Immigration & Boarder protection)
2.The applicant respectfully submit that the AAT has failed in considering natural justice procedural fairness, and further has not given thorough consideration of the applicant latest case
Within his accompanying affidavit, affirmed on 20 August 2020, the applicant added that he was of the view that the decision of the Tribunal affirming the delegate’s decision to refuse his visa application was ‘erroneous and insufficient’. No further particulars were provided in that regard.
On 9 December 2020, the applicant wrote to the Court outlining the history of his matter before the Tribunal, and requested additional time to ‘find a company for me and continue to demonstrate my skills and abilities’.
At hearing, the Court provided the applicant with an opportunity to make oral submissions in relation to his grounds of review. The applicant initially contended that the Tribunal did not give him an opportunity to explain his situation. However, when asked to particularise that contention further by way of reference to the evidence before the Court, the applicant was unable to do so. I drew the applicant’s attention to the evidence in the Court Book which indicated that he had been properly invited to a hearing to give evidence and present arguments and that the dispositive issue in his case was drawn to his attention by the Tribunal at that hearing. I also observed that following the hearing the Tribunal had given the applicant an opportunity to comment on or respond to adverse information, namely the absence of an approved nomination in his case, and that he had not availed himself of that opportunity. In those circumstances, I asked the applicant to particularise how he had been denied natural justice or other not been afforded procedural fairness by the Tribunal. The applicant stated that he had nothing further to add to his written submissions.
By way of reply, the Minister submits that the first ground does not identify or allege any jurisdictional error, but was merely a preamble to the second ground. I agree with and adopt this submission and observe that the terms of the first ground do not disclose any basis of error on the Tribunal’s part.
In relation to the second ground, the Minister submits that the applicant’s assertions about a failure to give ‘natural justice’, ‘procedural fairness’ and ‘thorough consideration’ were merely vague assertions of jurisdictional error that are unsupported by particulars, and for this reason alone, the ground is capable of being dismissed: referring to WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Specifically in relation to the alleged denial of procedural fairness, the Minister submits that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule (s 357A of the Act). The Minister contends the applicant was invited to, and attended, a hearing in accordance with s 360 of the Act.[13] The applicant was afforded the opportunity to give evidence and present arguments to the Tribunal about the determinative issue in this case, [14] being whether or not he was the subject of an approved nomination, which was the same issue as was before the delegate.[15] In addition, the Minister submits that the Tribunal complied with its obligations under s 359A of the Act, by giving the applicant clear particulars of the information it considered would be the reason for affirming the decision under review, being that the review of the nomination by the sponsor had been dismissed by the Tribunal, and explaining the relevance of the information and the consequences of it being relied upon.[16] The Minister submits that the Tribunal acted reasonably when it refused the applicant’s request for an in-person hearing in the circumstances of the matter.[17] In particular, the Tribunal explained that as the only issue before it was whether the applicant held an approved nomination, which it considered was adequately explained during the hearing, the Tribunal felt it unnecessary to hold an additional hearing. Additionally, the Tribunal had ceased to hold in-person hearings in the context of the COVID-19 global pandemic.[18]
[13] CB 119-121 and CB 136.
[14] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47]
[15] CB 154 at [4] and CB 155 at [17]-[18].
[16] CB 145-146.
[17] CB 141-142.
[18] CB 102.
In relation to whether the Tribunal properly considered the applicant’s case, the Minister maintains that the Tribunal did so as the evidence before it clearly indicated that the applicant was unable to satisfy a mandatory criterion for the visa.[19] In circumstances where the nomination had been refused by the delegate, and a review of the decision by the Tribunal had not resulted in the approval of that nomination, the Minister maintains that the applicant could not satisfy sub-cl 457.233(4)(a) in Part 457 of Schedule 2 to the Regulations.
[19] CB 155 [18]-[21].
I agree with and adopt Minister’s submissions in relation to ground 2, particularly in circumstances where the applicant has been unable to particularise the basis upon which he has been denied procedural fairness or articulate how the Tribunal failed to properly consider his case. In reaching this decision, I note that the applicant has been unable to point to any relevant evidence to support his grounds. Accordingly, I agree with the Minister’s submission that the applicant’s grounds have no reasonable prospect of success. This weighs heavily against the grant of extension.
Additional matters raised at hearing
At the hearing before me, the applicant was invited to respond to the Minister’s submissions. The applicant appeared representing himself and without the assistance of an interpreter. Nevertheless, he spoke English fluently and, respectfully, was able to make coherent submissions. The applicant submitted that he would like the Court to take into consideration that he had resided lawfully in Australia for some 18 years and would find it difficult to return to Bangladesh. He further indicated that it was not fault that his previous employer went bankrupt and could no longer nominate him for the visa and that he now just needed some additional time to remain in Australia in order to locate another employer willing to nominate him for another type of temporary employer sponsored visa.
Whilst I have sympathy for the applicant’s plight and find his concerns about returning to Bangladesh to be understandable given his prolonged stay in Australia, these submissions do not give rise to any arguable jurisdictional error. For the reasons set out above, the applicant did not meet the criteria for the visa. The refusal of the sponsor’s nomination and the ‘confirmation’ of that decision by the Tribunal was fatal to the applicant’s visa application. The applicant simply did not meet the requirements of cl 457.223, and as such, his application for judicial review has no reasonable prospects of success.
Futility
In addition, as submitted by the Minister, it would also be futile to remit this matter to Tribunal. The absence of an approved nomination would mean that the Tribunal, even if the matter were remitted, would not be able to come to any different view.
Further, I agree with the Minster that the consequences of the repeal of the subclass 457 visa scheme, following the passage of the Migration Amendment (Temporary Skills Shortage Visa Complementary Reforms) Regulations 2018 (Cth), makes it impossible for an employer to seek approval for a nomination for a prospective 457 visa holder, and subsequently it is impossible for the applicant to find a new sponsor under that scheme. Therefore, even if I had found jurisdictional error in this case (which I do not), it would be futile to remit the matter as a newly constituted Tribunal would be bound to affirm the decision under review is the applicant would be unable to satisfy sub-cl 457.223(4)(a) in Part 457 of Schedule 2 to the Regulations based on the original nomination or a new nomination: Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057 at [10] per Perram J. As was submitted by the Minister, this provides a further basis upon which this matter has no reasonable prospect of success.
Costs
At hearing, the applicant indicated that he had not incurred any costs in bringing the present application but requested that the costs order made by the Registrar be set aside. The amount ordered appears to have been a reasonable amount, having regard to the work performed by the Minister in the leading up to the making of the order (including the preparation of the Court Book, filing of written submissions and attendance at hearing). No basis for finding otherwise was suggested by the applicant.
By contrast, the Minister submitted at hearing that costs fixed in the amount of $800.00 were sought in connection with the present application. It was submitted that this amount was reasonable in the circumstances, taking into account the work undertaken by the Minister in the preparation of pre-hearing written submissions and attendance at the hearing.
CONCLUSION
Having regard to the above, I accept the Minister’s submission that it is not in the interests of justice to extend time for the bringing of the review application under r 21.02(2)(a) of the GFL Rules. This is in circumstances where the proposed application lacks any reasonable prospect of success. Even if I had decided to extend time, I would not have been persuaded to have set aside the Registrar’s orders made on 29 November 2024.
I therefore dismiss the application for a review of the Registrar’s decision and, having considered the parties submissions as to costs, order that the applicant pay the first respondent’s costs fixed in the amount of $800.00.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 20 January 2025
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