Shahedunnisa v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 716
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahedunnisa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 716
File number(s): SYG 762 of 2023 Judgment of: JUDGE LAING Date of judgment: 8 August 2024 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: Acts Interpretation Act 1901 (Cth) s 36(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth) ss 360, 360A, 362B, 362C, 379A, 379C and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13 and 21.02
Migration Regulations 1994 (Cth) cl 187.233
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
BPJ17 v Minister for Immigration [2019] FCCA 1164
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 1 August 2024 Place: Sydney Applicants: In Person Solicitor for the First Respondent: Ms C Warren of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 762 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHEDUNNISA SHAHEDUNNISA
First Applicant
JAVEED JAVEED
Second Applicant
MUHAMMAD KAMRAAN JAVEED (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 LAING
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 11 July 2024 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 LAING:
The applicants have applied for an extension of time in which to seek review of a Registrar’s decision made on 11 July 2024. By that decision, an application for judicial review was 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) (GFLRules), with costs.
The applicants’ substantive application that was summarily dismissed (Substantive Application) sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal confirmed its decision to dismiss an application made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). The Delegate had refused to grant the applicants Regional Employer Nomination (Permanent) (Subclass 187) visas.
For the following reasons, the application for an extension of time will be dismissed.
BACKGROUND
The first applicant (Applicant) applied for the visas on 29 January 2018. Included in the application were the second and third applicants, namely, her husband and son. The fourth applicant, her other son, was subsequently included as a member of the family unit.
On 9 August 2019, the Delegate refused the application on the basis that the Applicant was unable to meet cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provision required a nomination to have been approved in relation to the Applicant. The nomination proposed by the business in question (Nominating Business) had been refused.
The applicants applied to the Tribunal for review of the Delegate’s decision on 12 August 2019. The application nominated an email address to which correspondence was to be sent.
On 8 March 2023, the applicants were invited to attend a hearing before the Tribunal. The hearing was scheduled to take place on 6 April 2023.
The applicants did not attend the hearing. The Tribunal dismissed the application under s 362B(1A)(b) of the Migration Act 1958 (Cth) (Act) and provided written reasons on 6 April 2023 (Dismissal Decision).
By email sent on 11 April 2023, the Tribunal advised the applicants that reinstatement of the application could be sought by 26 April 2023. The applicants did not apply for reinstatement within this period.
On 27 April 2023, the Tribunal confirmed its decision to dismiss the application (Confirmation Decision).
THE TRIBUNAL’S DECISION
The Tribunal gave the following reasons for the Dismissal Decision:
1.The applicants were invited under s 360 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 6 April 2023 at 10am. 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 applicants were also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2. The applicants 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 applicants were properly invited to a hearing in accordance with s 379A(5), and the invitation has not been returned to sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the applicants about the hearing. An officer of the Tribunal attempted to phone the applicant on the mobile number provided with the application for review on the day of the hearing but the attempts were unsuccessful.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Tribunal gave the following reasons for the Confirmation Decision:
1.This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 9 August 2019 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 visas under the Migration Act 1958 (Cth) (the Act).
2.On 6 April 2023 the Tribunal dismissed the application under s 362B(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The 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 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 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.
PROCEEDINGS BEFORE THIS COURT
The applicants sought review of the Confirmation Decision by this Court through an application filed on 10 May 2023.
The response filed by the Minister indicated that summary dismissal was sought pursuant to r 13.13 of the GFL Rules on the basis that the application had no reasonable prospects of success.
On 11 July 2024, orders were made by a Registrar summarily dismissing the Substantive Application, with costs.
LATE FILING OF THE APPLICATION FOR REVIEW
Rule 21.02(1) of the GFL Rules required that the application seeking review of the Registrar’s decision be made within 7 days. This did not occur. The review application was made on 22 July 2024, 11 days after the Registrar’s decision on 11 July 2024.
The Minister opposed the extension of time.
In an affidavit, the Applicant explained that the delay occurred in circumstances where her son (the fourth applicant) had been unwell. She also gave evidence that she had been depressed and unable to concentrate. A medical certificate referring to the fourth applicant having a medical condition from 20 to 21 July 2024 was annexed. In this context, the Applicant gave evidence that she had lodged an appeal with the Federal Court but then realised that she needed to make the application to this Court.
I accept that the delay in this case is not particularly lengthy. The explanation that has been provided is an understandable one. No specific prejudice has been identified by the Minister.
However, for the reasons that follow, I accept the Minister’s submission that the underlying application for review of the Registrar’s decision lacks merit. This is a consideration that may weigh heavily against granting the extension of time: see Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 631 at [74] (Judge Ladhams); see also BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902 at [4], [27] and [48] (Judge Champion) (from which an application for an extension of time and leave to appeal was dismissed by Burley J in BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307).
I find that it does so in the present case and, for this reason, the extension of time application will be dismissed.
SUMMARY DISMISSAL
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides as follows:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the GFL Rules provides:
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.
In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.
MERITS OF THE UNDERLYING APPLICATION
The grounds relied upon by the applicants in the Substantive Application were stated as follows:
1. I applied for Regional Employer Nomination (Permanent) (class RN) subclass 187 visa to the department of immigration on 09 Augustl, 2019. My application was refused by department of home affairs.
2. I applied for the review on the decision made by delegate to the tribunal. My employer gave evidence to Tribunal in the favour of my application. However, the tribunal made the decision against my application.
3. I am not satisfied with the decision made by AAT.
4. I believe there is an error; therefore, I want to appeal against the decision in the court.Applicants satisfy cl.187. Immigration department did not grant him visa. I appeal to Hon. Court to consider my application and grant me liberty in my case.I strongly believe that both parties i.e., Department of Home Affairs and Administrative AppealsTribunal fell into Jurisdictional Error by acting unreasonably while assessing my Regional Employer Nomination (Permanent) (Class RN) visa. I request Honourable court to review my Case to give me justice.
(As per the original)
To the extent that the applicants sought review of the Delegate’s decision, as was explained at hearing, this Court has no jurisdiction to undertake such a review: s 476 of the Act.
It does not appear that the Nominating Business gave evidence to the Tribunal in favour of the application. I accept that some evidence involving the business was submitted to the Department. In the application seeking review of the Registrar’s decision, the applicants further referred to being “betrayed” by the Applicant’s employer.
However, the Tribunal in this case dismissed the application for non-appearance. The Tribunal subsequently confirmed that dismissal when no reinstatement application was made. If the Tribunal’s approach in this regard was not attended by relevant error, then the Tribunal was not generally bound to consider or determine the merits of the visa application: BPJ17 v Minister for Immigration [2019] FCCA 1164 at [48]-[63] per Judge Nicholls.
The question, then, is whether the Tribunal relevantly erred in making its decisions under s 362B(1A)(b) and/or s 362B(IE) of the Act.
At the hearing, the Minister spent some time taking the Court and the Applicant through the requirements of the Act. I assured the Applicant that I would also undertake my own assessment of whether or not the approach taken by the Tribunal complied with these requirements. I have done so.
Section 362B provided that, in the event of non-appearance by an applicant at a hearing to which they were invited under s 360 of the Act:
(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…
The applicants were invited to a hearing before the Tribunal pursuant to s 360 of the Act. The invitation appears to have complied with s 360A of the Act. As it was transmitted to the last email address provided to the Tribunal by the applicants in connection with the review, the applicants were taken to have received it according to s 379C(5) of the Act, whether or not it was actually received.
I accept the Minister’s submission that it was not legally unreasonable for the Tribunal to have elected to dismiss the application when the applicants did not attend the hearing, for the reasons that the Tribunal gave. Those reasons are set out above and included reference to the terms of the hearing invitation, the lack of any indication that the invitation had not been received, the SMS reminders the Tribunal had sent prior to the hearing, and the unsuccessful attempt that had been made to contact the applicants on the day of the hearing using the mobile number provided with the review application. These reasons provided an intelligible justification for the Tribunal’s decision: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J.
For the above reasons, I conclude that there is no arguable basis for finding that any relevant error attended the Tribunal’s Dismissal Decision.
The dismissal notification complied with the requirements of ss 362C(5) and (6) of the Act. It was notified by one of the methods specified in s 379A of the Act within 14 days of the decision. It attached the dismissal decision, invited the applicants to apply for reinstatement within 14 days and described the effect of ss 362B(1B) to (1F) of the Act.
I note that as the 14th day fell on a public holiday, the Tribunal notified the applicants that the deadline expired the day subsequently. In this regard, the Minister directed attention to s 36(2) of the Acts Interpretation Act 1901 (Cth), which provides that when the last day for the doing of a thing falls on a public holiday, then the thing may be done on the next day (that is not a Saturday, a Sunday or a holiday). On this basis, I accept the Minister’s submission that the notification accurately informed the applicants of the deadline for a reinstatement application.
In the above circumstances, s 362B(1E) of the Act provided:
(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.
The applicants did not apply for reinstatement within the requisite period. There is therefore no arguable basis for finding that the Tribunal relevantly erred in its Confirmation Decision.
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 review application and the proposed Substantive Application lack 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 11 July 2024.
The application to the Court will accordingly be dismissed. I will hear from the parties in relation to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 August 2024
SCHEDULE OF PARTIES
SYG 762 of 2023 Applicants
Fourth Applicant:
SUHAAM MUHAMMAD
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7
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