Singh v Minister for Immigration and Anor
[2015] FCCA 1991
•24 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1991 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file application – no written application to extend time – whether specification of why it is necessary in the interests of the administration of justice to extend time – whether affidavit in support of extension of time evidences prescribed matters – factors for consideration in extending time. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05, 44.12 Migration Regulations 1994 (Cth), Sch.2, cl.886.222 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Mallik v Minister for Immigration & Anor [2013] FCCA 1134 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; (2014) 139 ALD 50 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 SZRKY v Minister for Immigration & Citizenship [2013] FCA 352; (2013) 141 ALD 328 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 Zhang v Minister for Immigration & Anor [2014] FCCA 2752 |
| Applicant: | BALVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 350 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 April 2015 |
| Date of Last Submission: | 20 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 24 July 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Ms L Gallagher |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 350 of 2014
| BALVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Judicial review application – introduction
By application filed on 6 November 2014 the applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal (“Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 115-120). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Skilled (Residence) (Class VB) visa (“Skilled Residence Visa”) to the applicant. The Delegate’s Decision is at CB 43-46.
Grounds of the Judicial Review Application
The Judicial Review Application raises the following grounds of review:
1.File was mishandled due to heavy work load.
2.State migration never sent no email to confirm that it was declined.
The Judicial Review Application also attached an extract of submissions provided by the applicant to the Tribunal which noted that:
a)“State Migration Western Australia was mishandling the applications which was resulting in extended delays and re-lodgement requests”;
b)the applicant re-lodged his application with “State Migration of Western Australia” in 2011 however was unable to be assessed at that time; and
c)the applicant “would have met cl.886.222(2) [of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”)] or 886.222(3) and accordingly cl.886.222 in its entirety had the State Migration of Western Australia provided the Form 1100 to the Department in time.”
It would appear that the references to “State Migration Western Australia” and similar expressions are in fact a reference to the State Migration Centre in the Small Business Development Corporation: see, for example, Court Book (“CB”) 92-93.
Annexure 4 of an Affidavit filed by the applicant on of 12 December 2014 (“Applicant’s Affidavit”) appears to raise further grounds of review, stating:
1. I lodged an application for the grant of a Skilled (Residence) (class VB) subclass Skilled- Sponsored (886) on 19 March 2010 that was refused by the delegate of the Minister on 25 June 2013.
2. To seek justice from the Migration Review Tribunal (MRT), I lodged application for appeal 5 July 2013.
3. I was invited for a physical hearing on 30 September 2014. The Tribunal overlooked the facts of my case under law.
4. Tribunal refused my appeal on 2 October 2014 without due consideration of my evidence and my hearing.
Minister’s Response
The Minister filed a Response (“Response”) on 20 November 2014 stating:
1. The Court has no jurisdiction to review the Migration Review Tribunal decision dated 1 October 2014. Subsection 477(1) of the Migration Act 1958 (Cth) applies and the application in this Court was not filed within 35 days of the date of the Tribunal decision.
2. The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal dated 1 October 2014.
3. The application for judicial review does not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.
The Minister seeks orders that:
a)the grant of an extension of time pursuant to s.477(2) of the Migration Act be refused;
b)the matter be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth); and
c)the applicant pay the Minister’s costs of the proceedings fixed in the sum of $3,416.
The Judicial Review Application: in or out of time?
The Tribunal Decision was dated 1 October 2014 and the Judicial Review Application was filed on 6 November 2014. In order for the Judicial Review Application to have been filed within 35 days, it was required to be filed by 5 November 2014.
The applicant argued that the Judicial Review Application was filed within time because the 35 day time period ran from the date the applicant received the Tribunal Decision, which he says was 2 October 2014.
The date of the migration decision is prescribed by s.477(3)(b) of the Migration Act as being, for present purposes “the date of the written statement under sub-section 368(1) [of the Migration Act]”.
The written statement under s.368(1) of the Migration Act is the Tribunal Decision. As indicated above, the Tribunal Decision is dated 1 October 2014. The “date of the migration decision” for the purposes of s.477(1) of the Migration Act is therefore 1 October 2014.
The Judicial Review Application was therefore lodged one day outside the time period set by s.477(1) of the Migration Act. The applicant’s argument that the date of the migration decision was 2 October 2014 must therefore fail. Accordingly, the Judicial Review Application is incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act.
Extension of time – whether application to extend time to be made in writing a mandatory requirement
Legislation
Section 477(1), (2) and (3)(b) of the Migration Act provides that:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” means:
…
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1) …
No written application for an extension of time to file the Judicial Review Application
The Minister argued that an extension of time was not in the interests of justice because the applicant had not made application in writing to the Court to extend time for the filing of the Judicial Review Application: Minister’s Written Submissions at [15(a)].
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a)there has to be an application for an order to extend time;
b)the application for an order to extend time must be in writing; and
c)the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
11 … It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s 477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor: … [[2012] FMCA 384 (“SZRBN”)].
“[28] In my view the language of s 477(2) is plain. The relationship between its constituent parts, s 477(2)(a) and s 477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the court to consider the matter in s 477(2)(b) without an application pursuant to s 477(2)(a). This is not a matter as elsewhere in the Act where the court may act on its own motion (see for example s 486F(3)(a)).
[29] The application to the court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the court to extend time is contained in s 477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s 477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s 477(2)(a) of the Act.
[30] The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent … [SZRBN at [28]-[30] per Nicholls FM]”.
12 In the absence of an application meeting the requirements of s 477(2) of the Migration Act 1958 an application for an extension of time under s 477(1) of the Migration Act 1958 is incompetent.
WZASQ at [10]-[12] per Judge Lucev. An application for leave to appeal against SZRBN was dismissed by the Federal Court: SZRBN v Minister for immigration & Citizenship [2012] FCA 984.
In Sandan v Minister for immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”), delivered subsequent to this matter being argued, further rationale for the mandatory nature of the requirement that an application for an extension of time to file an application for judicial review under s.476 of the Migration Act was set out as follows:
12. It has long been recognised that the use of the word “must” in migration legislation, such as s.477(1) of the Migration Act, limiting time for the filing of applications imposes a mandatory obligation to comply with the time limit. In Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 (“Wang”) the Federal Court said:
In my view the use of the word “must” in s 478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but “is a word of absolute obligation”: see Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J and Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), p 278 and Public Prosecutor v Oie Hee Koi [1968] AC 829 at 852.
Wang, FCR at 391 per Merkel J.
13. Section 477(2) of the Migration Act is a provision under which the Court is given the discretion to make an order extending the otherwise mandatory time limitation in s.477(1) of the Migration Act if, and only if, the conditions in s.477(2) are met. In s.477(2) of the Migration Act the word “and” is used between paragraphs (a) and (b). Although not an invariable rule, where “and” appears joining two or more requirements in a statute it will usually indicate that those requirements are cumulative, unless the particular context requires otherwise: Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254 at [23] per Hill J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [13] per Judge Lucev. The use of the conjunctive “and” in s.477(2) of the Migration Act therefore means that the obligations imposed by paragraphs (a) and (b) of s.477(2) of the Migration Act are not severable: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [45] per Foster J (“SZRIQ”), the context not requiring otherwise. Thus, the requirements in paragraphs (a) and (b) of s.447(2) of the Migration Act must all be met before time can be extended. As indicated in WZASQ this requires:
a) an application for an order to extend time made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time; and
b) satisfaction on the part of the Court that it is necessary in the interests of the administration of justice to make an order extending time.
14. The Court cannot simply jump to the second step, and satisfy itself that it is necessary in the interests of the administration of justice to make an order extending time, without an application being made which complies with the terms of s.477(2)(a) of the Migration Act.
Sandan at [12]-[14] per Judge Lucev.
By neither making an application for an extension of time in writing nor specifying why he considered it was necessary in the interests of the administration of justice to extend time, the applicant has wholly failed to satisfy s.477(2) of the Migration Act. Therefore, an extension of time cannot be granted by the Court.
Extension of time – whether affidavit complying with r.44.05(2)(c) of the FCC Rules is mandatory requirement
Legislation
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Rule 44.05(2)(c) of the FCC Rules provides that where an application for judicial review seeks an extension of time, it must be supported by an affidavit containing evidence:
a)explaining the delay; and
b)showing why it is necessary in the interests of the administration of justice for the Court to grant an extension, as required by r.44.05(2) of the FCC Rules.
In Comcare v A’Hearn (1993) 45 FCR 441 (“A’Hearn”) the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”: A’Hearn at 444 per Black CJ, Gray and Burchett JJ, but, as the Federal Court has otherwise observed, the failure to provide any adequate explanation for the delay may, of itself, provide sufficient reason to refuse the extension of time sought: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J (“SZMWH”).
In this case there is, however, a rule, and unless compliance with the rule is dispensed with in the interests of justice: FCC Rules, r.1.06(1): “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time”, the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [35]-[40] per Lucev FM (“Broad Spectrum”), and cases there cited, applied in WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent such dispensation, the FCC Rules prescribe that there must be an explanation provided in an affidavit supporting the Judicial Review Application as to the delay and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
In Sandan the provisions of r.44.05 of the FCC Rules were explained as follows:
17.Rule 44.05 of the FCC Rules was inserted into the then Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) by the Federal Magistrates Court Amendment Rules 2005 (No.1) (Cth) in the following terms:
44.05 Application for order to show cause
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought — the reasons for any delay and the reasons why an extension should be granted.
This was part of a suite of amendments brought in by the Migration Litigation Reform Act 2005 (Cth).
18. Rule 44.05 of the then Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) was first amended by the Federal Magistrates Court Amendment Rules 2007 (No.1) (Cth) by replacing the words “form of application under the Migration Act set out in Part 1 of Schedule 2” with the words “approved form”.
19. Rule 44.05 of the then FMC Rules was amended again by the Federal Magistrates Court Amendment Rules 2009 (No.1) (Cth) (“the 2009 Amendment”) by substituting for the then para.(c) of r.44.05(2) of the FMC Rules the following:
(c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
20. The Explanatory Statement accompanying the 2009 Amendment stated that the 2009 Amendment reflected amendments under the Migration Legislation Amendment Act 2009 (No. 1) (Cth) (“Migration Amendment Act 2009 (No. 1)”) to s.477 of the Migration Act (“2009 s.477 Amendment”).
21. The 2009 s.477 Amendment was a significant change to the process by which extensions of time might be granted to applicants. Section s.477(2)(a) was inserted into the Migration Act requiring applicants to state the reasons in their applications why it is in the interests of the administration of justice to grant an extension of time. The time for application was extended from 28 to 35 days, and the limitation of a maximum allowable extension (at that time being 56 days) was removed. This gave the Court wide discretion if it is in the interests of the administration of justice to grant an extension. The Second Reading Speeches and Explanatory Statement to the Migration Amendment Act 2009 (No. 1) stated that requiring applicants to give reasons for an extension of time in their applications was intended to assist the Court by drawing attention to cases where there were compelling reasons to extend time, so as to enable quicker and more efficient disposal of any applications to extend time.
22. The critical change to r.44.05(2)(c) of the then FMC Rules is that the word “reasons”, a synonym of explanation, was omitted, and the word “evidence” substituted. The distinction between the words is glaring. The use of the word “evidence” expressly requires that more than mere explanation be provided in support of any application for an extension of time. The intended purpose of the 2009 s.477 Amendment to promote efficiency in dealing with extension of time applications was supported by the requirement arising from the 2009 Amendment to provide evidence on affidavit, thereby facilitating proof of the reasons asserted in the extension of time application. That proof can be seen to be necessary, for without it, it would be very difficult for the Court to find facts necessary to satisfy it as to what is, or is not, in the interests of the administration of justice for the purposes of s.477(2)(b) of the Migration Act.
Sandan at [17]-[22] per Judge Lucev.
Having referred to A’Hearn, SZMWH, Broad Spectrum and WZASC, as set out above: see [19]-[20] above and Sandan at [23]-[25] per Judge Lucev, the Court went on in Sandan to observe as follows:
26. The interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a. if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b. any waiver under r.1.06(1) of the FCC Rules of compliance with r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c. the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i. the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii. the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii. an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv. the alleged jurisdictional error is either established (as in SZTDM (No.2)) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time (for example, issues such as the explanation for the delay and prejudice to the respondent: see the authorities cited at [32] below).
27. The above examples might be expanded upon, but absent something of their ilk, there could not otherwise be a judicially justifiable reasonable basis for dispensing with compliance with the requirement imposed upon an applicant by r.44.05(2)(c) of the FCC Rules to file an affidavit setting out the factual material relied upon by the applicant seeking to justify an order for an extension of time.
28. In SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 (“SZTDM (No.2)”) this Court observed as follows:
Under r.1.06(1) of the Federal Circuit Court Rules the Court may dispense with compliance with the requirements of the Rules. Insofar as it is necessary to do so, in the particular circumstances of this case where a jurisdictional error on the part of the Tribunal has been established, I would dispense with compliance with the requirements of r.44.05(2)(c) of the Rules. There is no requirement for an affidavit containing an explanation for delay in the Migration Act. I am of the view that it is open to the Court to grant an extension of time under s.477(2) of the Act notwithstanding non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
SZTDM (No. 2) at [10] per Judge Barnes.
29. SZTDM (No.2) was a case dealing with its particular circumstances, but clearly falls within the category referred to at [26[(c)](iv)] above in which it is unnecessary for an affidavit under r.44.05(2)(c) of the FCC Rules to be filed because jurisdictional error on the part of the administrative decision-maker, in that case the Refugee Review Tribunal, had been clearly established, and obviously sufficiently so to warrant waiving compliance with r.1.06(1) of the FCC Rules.
Sandan at [26]-[29] per Judge Lucev.
The Applicant’s Affidavit was filed on 12 December 2014. The Applicant’s Affidavit makes it clear that it is in response to correspondence from the Minister’s solicitors, enclosing the Response which had been filed on 20 November 2014: Applicant’s Affidavit at [1]. The Applicant’s Affidavit notes that the Response seeks dismissal of the Judicial Review Application on the basis that the Court has no jurisdiction because the Judicial Review Application was not filed within the 35 days prescribed by s.477(1) of the Migration Act: Applicant’s Affidavit at [2]. The applicant then sets out an argument that because the Tribunal Decision was not received by his agent until 2 October 2014 the 35 days ran until 6 November 2014, and therefore his Judicial Review Application should not be dismissed: Applicant’s Affidavit at [3]-[6]. The Court notes that the Applicant’s Affidavit also purports to set out further grounds in support of the Judicial Review Application in an annexure 4 to the Applicant’s Affidavit: Applicant’s Affidavit at [7] and annexure 4. Those further grounds are set out above: see [4] above.
It is plain that the Applicant’s Affidavit, which is in response to the Response, is not an affidavit in support of the Judicial Review Application in the sense referred to in r.44.05(2) of the FCC Rules, which contemplates an affidavit filed at the same time as the Judicial Review Application and annexing foundational documents, such as the Tribunal Decision, and any other document or other evidence an applicant seeks to rely on, including, where an extension of time is sought, the “evidence” explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
Even if the Applicant’s Affidavit was to be considered an affidavit in support of the Judicial Review Application it still does not evidence the matters prescribed in r.44.05(2)(c) of the FCC Rules. There is no “evidence” showing why it is necessary in the interests of the administration of justice for the Court to grant an extension. The additional grounds contained in annexure 4 to the Applicant’s Affidavit are not evidence, and nor are they, and nor do they purport to, demonstrate why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
The Judicial Review Application was not therefore supported by an affidavit which included the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension, as was required by r.44.05(2)(c) of the FCC Rules, and, therefore, an extension of time cannot be granted.
Extension of time – consideration on usual factors
The Court considers below whether, notwithstanding its findings set out above, an extension of time in which to file the Judicial Review Application might, in any event, have been granted on consideration of the usual factors for an extension of time application.
Factors for consideration
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established but not exhausted in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
WZASC at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
Extent of and reasons for delay
In this matter the delay in seeking to make the application is one day. The delay, therefore, is absolutely minimal.
The Applicant’s Affidavit does not explain the reasons for the delay as required by r.44.05(2)(c) of the FCC Rules for reasons set out above: see [23]-[26] above. To the extent that it does endeavour to explain the reason for the delay of one day the basis for that reasoning is wrong in law for reasons also set out above: see [7]-[11] above. Thus, to the extent that there is an explanation of the delay, it is not one which has a sound basis, and is therefore not a particularly satisfactory explanation.
Prejudice to the Minister
The Minister would be prejudiced by the granting of the extension of time as the Minister would be put to the cost of defending the Judicial Review Application which was otherwise out of time, and, for reasons set out below, a Judicial Review Application that has no reasonable prospect of success.
Impact on the applicant
The impact on the applicant of a failure to extend time for the making of the Judicial Review Application will be negligible, as, for reasons set out below, the proposed substantive Judicial Review Application has no reasonable prospect of success.
Interests of the public at large
This matter is determinable on existing well understood and explained legislation and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large.
Exercise of the Court’s discretion
There is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Prospects of success and merits of the Judicial Review Application
The grounds of the Judicial Review Application are set out at [2] and [4] above.
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of India;
b)he lodged the application for the Skilled Residence Visa on 19 March 2010: CB 1-14;
c)on 25 June 2013, the Delegate’s Decision was to refuse to grant the applicant the Skilled Residence Visa, the Delegate finding that the applicant did not satisfy cl.886.222(2) or (3) of Schedule 2 to the Migration Regulations: CB 39-46;
d)on 5 July 2013 the applicant lodged an application to the Tribunal for review of the Delegate’s Decision: CB 49-59;
e)on 15 July 2014 the applicant was invited by the Tribunal to provide information confirming that the applicant:
i)had been nominated by a State or Territory government agency and the Minister had accepted the nomination; or
ii)had been sponsored by an Australian citizen or Australia permanent resident and that the Minister had accepted the sponsorship: CB 65-69;
f)the applicant, through a registered migration agent, responded to the Tribunal’s request on 4 August 2014: CB 77-102; and
g)the Tribunal Decision made on 1 October 2014 was to affirm the Delegate’s Decision not to grant the applicant a Skilled Residence Visa: CB 115-120.
In order to be eligible for the grant of the Skilled Residence Visa the applicant was required to demonstrate that, at the time of the Tribunal Decision, a number of criteria were satisfied.
An essential criteria to be met was in cl.886.222 of Schedule 2 to the Migration Regulation. In order to satisfy cl.886.222 of Schedule 2 to the Migration Regulations the applicant was required to demonstrate that he met the requirements of either cl.886.222(2) or cl.886.222(3) of Schedule 2 to the Migration Regulations.
Clause 886.222(2) of Schedule 2 to the Migration Regulations required that the applicant had been nominated by a State or Territory government agency, and that the Minister had accepted the nomination.
Clause 886.222(3) of Schedule 2 to the Migration Regulations required that the applicant had been sponsored by an applicable person, and that the sponsorship had been made on an applicable form (being Form 1277 (Internet) or Form 1277), and the Minister had accepted that sponsorship.
In the Tribunal Decision the Tribunal:
a)noted that the applicant conceded that he did not have a State (Western Australian) government nomination: CB 119 at [16], and therefore found that the applicant did not satisfy the requirements of cl.886.222(2) of Schedule 2 to the Migration Regulations: CB 119 at [18];
b)also found that even if there were factors beyond the applicant’s control to explain why he did not have the required State government nomination, the wording of cl.886.222(2) of Schedule 2 to the Migration Regulations did not provide the Tribunal with any discretion to take into account the factors raised by the applicant including delay, or possible mal-administration by a State government agency, or negligence by a migration agent: CB 119 at [17];
c)noted that the applicant had provided evidence at the Tribunal hearing that:
i)he had not been sponsored by a relevant person;
ii)he had not lodged the relevant sponsorship form; and
iii)his sponsorship had not been accepted by the Minister,
and the Tribunal therefore further found that the applicant did not satisfy cl.886.222(3) of Schedule 2 to the Migration Regulations; and
d)because the applicant did not satisfy the requirements for the grant of the Skilled Residence Visa the Tribunal affirmed the Delegate’s Decision: CB 120 at [23]-[25].
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; at [82] per McHugh, Gummow and Hayne JJ.
At hearing before this Court the applicant conceded that:
a)he has at no point in the application process for the Skilled Residence Visa had:
i)a nomination by a State government agency which the Minister has accepted: see cl.886.222(2) of Schedule 2 to the Migration Regulations; and
ii)no appropriate person to act as sponsor: see cl.886.222(3) of Schedule 2 to the Migration Regulations; and
b)his basis for seeking judicial review has essentially been one of the mishandling by the State government agency of his nomination process.
See Transcript, 20 April 2015, page 3.
Clause 886.222 of Schedule 2 to the Migration Regulations imposed strict requirements for the grant of the Skilled Residence Visa. Either the applicant complied with those requirements or he did not. It is not in contention that the applicant had not obtained the required approved nomination or sponsorship and had not made his application for the Skilled Residence Visa on the relevant form.
The applicant did not therefore satisfy the relevant requirements for the grant of the Skilled Residence Visa. Thus, the Tribunal did not err in making a finding to that effect, or in affirming the Delegate’s Decision not to grant the applicant a Skilled Residence Visa.
The Tribunal did not overlook or fail to consider any of the applicant’s evidence. An examination of the Tribunal Decision shows that:
a)the Tribunal recounted the submissions and evidence provided by the applicant on 4 August 2014: CB 118 at [12]-[14];
b)the Tribunal recounted the evidence given at the Tribunal hearing by the applicant. The Court cannot, in the circumstances, draw the inference that the applicant’s evidence was overlooked: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; CB 119 at [15]-[16] and CB 119-120 at [19] and [22]; and
c)the Tribunal Decision demonstrates that the Tribunal considered all of the available material: CB 119-120 at [17]-[22].
The allegation that the State government agency delayed or mal-administered the applicant’s application for nomination does not give rise to a jurisdictional error in the Tribunal Decision. Nothing was apparent on the material before the Tribunal to suggest that the requirements of the Migration Regulations were met by the applicant, and there was nothing before the Tribunal which suggested that the applicant would be able, in any event, to meet the relevant requirements within any reasonable future timeframe: SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [49] per Robertson J (“SZSGA”) (special leave to appeal to the High Court from SZSGA was refused: SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2014] HCASL 126); SZRKY v Minister for Immigration & Citizenship [2013] FCA 352; (2013) 141 ALD 328 at [14] per Cowdroy J. Likewise, negligence by a migration agent does not, unless it constitutes a fraud on the Tribunal, provide any ground for finding that the Tribunal committed jurisdictional error: see SZSXT v Minister for Immigration & Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; (2014) 307 ALR 31; (2014) 138 ALD 437 at [51] per Perram, Robertson and Griffiths JJ; and see generally Zhang v Minister for Immigration & Anor [2014] FCCA 2752 at [28]-[36] per Judge Lucev and the High Court and Federal Court authorities there cited. There is neither evidence nor particularisation of fraud by the migration agent in this case. Nor was there any particularisation or evidence specifically highlighted of negligence on the part of the migration agent, and in any event, mere negligence or incompetence or a failure to inform by a migration agent is insufficient to support jurisdictional error in the Tribunal Decision: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [30] and [33] per Tamberlin, Finn and Dowsett JJ; Mallik v Minister for Immigration & Anor [2013] FCCA 1134 at [23] per Judge Lucev.
Although it is not raised by the grounds of review the Court has also considered whether the Tribunal’s refusal to adjourn its review: CB 120 at [20], was unreasonable having regard to the principles outlined by the High Court in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”). In the Court’s view the decision of the Tribunal not to adjourn was properly justified by reference to the High Court’s judgment in Li, and the judgment of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”), and justifiable on the basis that a Tribunal need not indefinitely defer its decision-making processes, particularly where, as here, the applicant had been aware for approximately 15 months of the basis upon which his Skilled Residence Visa had been refused by the Delegate: CB 120 at [20]-[21]. In addition, the Court is of the view that there is no evidence that the applicant had taken any relevant steps to otherwise deal with the basis upon which the Delegate’s Decision had been made, or that there was any likelihood within any reasonable timeframe that the deficiencies identified by the Delegate’s Decision, and subsequently by the Tribunal Decision, were capable of rectification. In those circumstances, the Tribunal Decision was not unreasonable in the sense referred to in Li and Singh.
For all of the above reasons, the Court is of the view that no jurisdictional error is disclosed by the Tribunal Decision.
Conclusion – extension of time
It is well established that a court should not exercise a discretion to extend time, even for a short period, if the proposed substantive application has no prospect of success: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J, and the authorities there cited.
No jurisdictional error is disclosed by the Tribunal Decision. The grounds of review therefore have no merit and no prospect of success. The grant of an extension of time within which to make the Judicial Review Application is therefore not in the interests of the administration of justice.
Conclusions and orders
The Court has concluded that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act for the making of the Judicial Review Application, particularly given that it has no prospect of success; and
b)the application to extend time for the making of the Judicial Review Application ought to be dismissed.
It is unnecessary to make a further order that the proposed substantive application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASC at [23] per Judge Lucev.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 July 2015
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