Shaik v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Shaik v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 191

File number(s): MLG 1261 of 2021
Judgment of: JUDGE CORBETT
Date of judgment: 27 February 2025
Catchwords: MIGRATION – Employer Nomination (Class EN) (Subclass 186) visa – application for review of Registrar’s decision – application for an extension of time to seek review – Rule 21.02(2) - whether adequate explanation for delay – consideration of merits - no reasonable prospects of successfully prosecuting application – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 359A, 359, 359C(2), 360(3), 363A

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 254, 256(1)(a)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02(2), 21.02, 21.02(1), 21.01, 21.04

Migration Regulations 1994 (Cth) reg. 5.19, Sch 2 cls 186.233(2), 186.233, reg 5.19(3)

Cases cited:

Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886

AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 616

Patel v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1254

SZJRV v Minister for Immigration & Citizenship [2008] FCA 298

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Division: Division 2 General Federal Law
Number of paragraphs: 65
Date of last submission/s: 5 February 2025
Date of hearing: 5 February 2025
Place: Melbourne
Solicitor for the Applicant The applicant appeared self-represented
Solicitor for the Respondents Ms C Hill, Minter Ellison

ORDERS

MLG 1261 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AHMED ALI SHAIK

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

27 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application for review filed 9 January 2025 seeking to review the exercise of the Registrar’s power to summarily dismiss the proceeding be dismissed.

2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application for review fixed in the sum of $2,143.00.

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 CORBETT

  1. The applicant seeks to review the exercise of power of a Registrar of this Court made 6 December…

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AGLC
Shaik v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 191
Case
[2025] FedCFamC2G 191
Decision Date

CaseChat Overview and Summary

The case of Shaik v Minister for Immigration and Multicultural Affairs involved an Indian citizen who applied for a migration visa under the Employer Nomination (Class EN) (Subclass 186) scheme. The primary criterion for this visa is the approval of a nomination by the Minister from a prospective employer. The applicant's nomination by Maxpress Trading Company Pty Ltd was refused, leading to the rejection of the visa application. The applicant sought a review of this decision, which was ultimately affirmed by the Administrative Appeals Tribunal (AAT). Dissatisfied with the outcome, the applicant applied for judicial review in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the application for judicial review was filed within the prescribed time limit and, if not, whether an extension of time to file should be granted under Rule 21.02(2) of the Federal Circuit and Family Court Rules. The court also had to determine if there were any reasonable prospects of successfully prosecuting the application for judicial review. The applicant argued that he was unaware of the time limits and court procedures, leading to the delay in filing the review application.

The court acknowledged the applicant's difficulties and lack of knowledge about court procedures but emphasised that ignorance of the rules does not excuse non-compliance. While the court can sometimes be lenient with self-represented litigants, it is expected that parties make proper enquiries to understand the procedural requirements. The court accepted the applicant's explanation for the delay but noted that it did not provide a satisfactory basis for an extension of time under the Rules. Additionally, the court considered the merits of the underlying application and concluded that there were no reasonable prospects of successfully prosecuting the claim for relief.

Consequently, the court dismissed the application for judicial review. The court's decision was based on the applicant's failure to file the review application within the prescribed time limit and the absence of reasonable prospects of success in the judicial review proceedings. The court reiterated its role in reviewing the decision for jurisdictional error rather than granting a visa.

Orders

Orders of the court

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Background

Background to the litigation

References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 5 February 2025, marked exhibit “R1”.BACKGROUND The applicant is a citizen of India. On 30 June 2017, the applicant applied for the visa. One of the primary criteria that must be satisfied to qualify for the visa is that the applicant have a nomination approved by the Minister from a person (the nominator) that proposes to employ the applicant for a position (reg. 5.19 and cl 186.233(2) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations)). At the time of making the application, the applicant’s proposed nominator was a company known as Maxpress Trading Company Pty Ltd (Maxpress). The position for which the applicant was nominated was Fleet Manager (CB 17-31). Regulation 5.19 sets out the process by which a nominator may obtain approval from the Minister for the purpose of cl 186.233 of Sch 2 of the Regulations. If the Minister is satisfied that the requirements of the Regulations are met, then the Minister may approve the nomination in writing (r 5.19(3) of the Regulations). The nomination submitted by Maxpress was refused by the Minister on 26 June 2018. By a letter dated 26 June 2018, a delegate of the Minister invited the applicant to comment on the fact that the associated nomination had been refused (CB 69-72). The applicant was invited to comment or withdraw the application for the visa within 28 days. The applicant did not respond. On 7 August 2018, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy cl 186.233 of Sch 2 of the Regulations. There was no approved nomination in respect of the position to which the visa application related (CB 78-81). Therefore, the applicant did not satisfy the primary criteria required for the visa. On 14 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 82-3). At that time, the applicant was represented by a registered migration agent.TRIBUNAL DECISION On 3 May 2021, the Tribunal wrote to the applicant’s agent and invited the applicant to attend a hearing in accordance with s 359A of the Migration Act 1958 (Cth) (Act) (CB 116-7). A telephone hearing was scheduled to take place on 24 May 2021 at 9.30am (AEDT). The Tribunal provided the applicant with a Response to hearing invitation form (s 359 Response) to be completed and returned to the Tribunal within seven days (CB 124-7). On 6 May 2021, the Tribunal wrote to the applicant and his then agent and invited the applicant to comment on or respond to the following information by 20 May 2021 (CB 129-31):The application for approval of the nominated position made by MAXPRESS TRADING COMPANY PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 14 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 82-3). At that time, the applicant was represented by a registered migration agent.TRIBUNAL DECISION On 3 May 2021, the Tribunal wrote to the applicant’s agent and invited the applicant to attend a hearing in accordance with s 359A of the Migration Act 1958 (Cth) (Act) (CB 116-7). A telephone hearing was scheduled to take place on 24 May 2021 at 9.30am (AEDT). The Tribunal provided the applicant with a Response to hearing invitation form (s 359 Response) to be completed and returned to the Tribunal within seven days (CB 124-7). On 6 May 2021, the Tribunal wrote to the applicant and his then agent and invited the applicant to comment on or respond to the following information by 20 May 2021 (CB 129-31):The application for approval of the nominated position made by MAXPRESS TRADING COMPANY PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved. In that letter, the Tribunal said (CB 131):Consequences of not respondingIf we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. The applicant and his agent did not respond to that invitation and did not complete the s 359 Response. On 21 May 2021, the Tribunal notified the applicant that due to his failure to respond to the invitation to comment, he had lost his right to attend the Tribunal hearing (CB 135-6). On 24 May 2021, the Tribunal affirmed the decision under review on the basis that the applicant could not satisfy the criteria in cl 186.233 of Sch 2 of the Regulations (Decision) (CB 138-47).PROCEEDINGS IN THIS COURT On 11 June 2021, the applicant filed an application for judicial review in this Court, which set out the following grounds of application (verbatim) (CB 1-6):1.Received an invitation to attend hearing but the hearing was cancelled.2.Did not get a chance to justify myself.3.Unreasonableness.4.Breach of Natural Justice.5.Delegate did not given a chance for oral evidence.6.Did not consider the relevant information that was supported to be considered.7.Member did not considered my evidence, proofs and my response.8.Procedural fairness. The application was supported by affidavit of the applicant affirmed 11 June 2021 (CB 8-9). The affidavit filed with the Court also annexed unpaginated documents including but not limited to, an offer of employment from Maxpress, a job description, a Sponsor Approval Notice for Maxpress for the period 28 November 2013 to 12 November 2016, a photocopy of the applicant’s passport, letters from the Tribunal, Australian Taxation Office records, ANZ Bank financial statements, and an ASIC Company Extract for Maxpress indicating that it was a registered company.

Ratio Decidendi

Legal Principle Established

The Court acknowledged the applicant’s circumstances and difficulties faced by his family, noting once again that the Court’s purpose was to review the Decision for jurisdictional error and that the Court could not grant the applicant a visa.CONSIDERATION Section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power. The power to delegate functions of the Court to the Registrars is to be found in s 254 of the FCFCOA Act. In this case, the Registrar was exercising a delegated power to summarily dismiss an application for judicial review because the applicant has no reasonable prospects of successfully prosecuting the claim for relief sought (rr 13.13(a) and 21.01 of the Rules). The power to review under s 256(1)(a) of the FCFCOA Act is conditional upon the party making the application “within the time prescribed by the Rules of Court”. The time prescribed by r 21.02(1) of the Rules is seven days from the date of exercise of the power. If an application is filed after the time fixed by the Rules, it is irregular and incompetent unless an extension of time is granted (see Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 616 at [15] per Judge Vasta and AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [10] per Judge Given). The Court has a broad discretion to grant an extension of time pursuant to r 21.02(2) of the Rules. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 at 348-9 (Hunter Valley)). These considerations provide the Court with guidance and consistency in the approach to Review Applications, although are not exhaustive considerations that are required to be contemplated (see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [12]). If an application is made within time or an extension of time is granted, a review of the exercise of power by a Registrar must proceed by way of a hearing de novo in accordance with r 21.04 of the Rules.Explanation for Delay The applicant was unable to clearly assist the Court as to why the Review Application was filed out of time. Doing the best that the Court can with the explanation given, the applicant asserts that he was unaware of the time limits and did not understand the processes of this Court. The applicant said that he was confused as to which Court he was required to apply to seek review and of the applicable time limit. Ignorance of the Rules is not a satisfactory excuse, although indulgences are sometimes given to self-represented litigants (see SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [5]–[6] per Flick J and SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J). Parties are expected to make proper enquiries to determine when a review application is required to be filed (see SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J). There was no evidence by affidavit or otherwise that explained the delay, however, the Court accepts the explanation given by the applicant that the delay was caused by a lack of knowledge of the Court’s procedures and rules. That explains why the applicant did not file the Review Application within the seven-day time period.Length of Delay