Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1203
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1203
File number(s): MLG 187 of 2019 Judgment of: HER HONOUR JUDGE C. E. KIRTON KC Date of judgment: 21 November 2024 Catchwords: MIGRATION – Application for review of a Registrar’s decision – review Application filed out of time – Registrar’s decision to summarily dismiss Application and the Applicant to pay the Minister’s costs – no reasons given for delay in applying for review or reasons why such a review is sought – whether an extension of time should be granted for review of the Registrar’s decision – extension of time denied – substantive Application has no reasonable prospects of success – order for costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Federal Circuit Court Rules 2001 rr 7.01, 13.13
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04, Division 29.2 of Part 29, Schedule 2
Migration Act 1958 (Cth) ss 48, 57, 360, 476, 477
Migration Regulations 1994 (Cth) cll 485.213, 485.311
Cases cited: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Allison v Murphy [2021] FCAFC 232
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection [2021] 273 CLR 506
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 276 CLR 579
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submissions: 12 November 2024 Date of hearing: 12 November 2024 Place: Melbourne The Applicant: Appeared in person with the assistance of a Punjabi interpreter Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 187 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMAN DEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON KC
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave to file the Application for Review filed 30 October 2024 is refused.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1,255.75.
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
HER HONOUR JUDGE C. E. KIRTON KC:
INTRODUCTION
On 30 October 2024 the Applicant filed an Application for Review (Review Application). The Review Application seeks review of an exercise of power by a Registrar of this Court, pursuant to Part 29, Division 29.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules).
The relevant exercise of power by the Registrar is Orders made on 17 October 2024 (Registrar’s Orders). The Registrar Ordered: that the Applicant’s Application for judicial review, filed 23 January 2019 (Substantive Application) be summarily dismissed pursuant to r 13.13(a) of the 2021 Rules; and that the Applicant pay the costs of the First Respondent (Minister) fixed in the sum of $3,144.70. The Substantive Application seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) on 3 January 2019 to refuse the Applicant’s Application for a Temporary Graduate (Class VC) Temporary Graduate (Post-Study Work) (Subclass 485) visa (Tribunal Decision).
The hearing of the Review Application took place at the Melbourne Registry of the Court on 12 November 2024 (Review Hearing). At the conclusion of the Review Hearing judgment was reserved. These are the Reasons for Judgment in relation to the Review Hearing.
ISSUES IN DISPUTE
The issues to be determined in this matter are as follows:
(a)Whether leave should be granted for the Applicant to file the Review Application out of time; and
(b)If leave is granted to file the Review Application out of time, whether the Review Application should be allowed.
SYNOPSIS
The court determines that:
(a)Leave to file the Review Application out of time is refused on the basis that the Substantive Application has no reasonable prospects of success and the Applicant’s failure to provide any explanation as to why the Review Application was filed out of time;
(b)The Registrar’s Orders remain in full force and effect; and
(c)The Applicant pay the Minister’s costs of the Review Application, fixed in the sum of $1,255.75.
BACKGROUND
The Applicant is a citizen of India.[1] On 4 August 2018 the Applicant applied to the Department of Home Affairs for a Temporary Graduate (Class VC) Temporary Graduate (Post-Study Work) (Subclass 485) visa (Visa).[2] The primary applicant for the Visa was the Applicant’s wife at that time, Amandeep Kaur Gill (Ms Gill), who had been on a student visa. The Applicant was a secondary applicant for the Visa. Mansirat Kaur (Ms Kaur), the daughter of Ms Gill and the Applicant, was also a secondary applicant for the Visa. The Applicant and Ms Kaur applied for the Visa on the basis that they were members of the same family unit as the primary applicant Ms Gill (Visa Application).[3]
[1] Court Book (CB) 4.
[2] CB 29-30.
[3] CB 1-14.
Delegate’s Decision
On 5 September 2018 a Delegate of the Minister (Delegate) notified Ms Gill that the Visa Application had been refused (Delegate’s Decision). [4] The Delegate refused the Visa on the basis that Ms Gill had not met the criteria for the Visa.
[4] CB 31-43
The Delegate determined that cl 485.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (Migration Regulations) had not been met by Ms Gill and the Applicant on the date that the Delegate’s Decision was made. Clause 485.213 of the Migration Regulations (Cl 485.213) states:
485.213
(1) When the application was made, it was accompanied by evidence that:
(a) The applicant; and
(b) Each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application was made.
[…]
When the Visa Application was made on 4 August 2018, it was declared that all persons the age of 16 or over who were included in the Visa Application had not applied for an Australian Federal Police (AFP) check in the 12 months immediately before the day the Visa Application was lodged.[5] The Delegate thereby determined that the criterion in cl 485.213 had not been met.
[5] CB 1.
Tribunal Decision
On 10 September 2018 Ms Gill, the Applicant and Ms Kaur applied to the Tribunal for review of the Delegate’s Decision.[6]
[6] CB 44-46.
On 25 October 2018 the Tribunal invited Ms Gill, the Applicant and Ms Kaur to attend a hearing on 26 November 2018 to give evidence and present arguments.[7] The hearing was subsequently rescheduled to 3 January 2019 at the request of Ms Gill, due to plans to travel to India.[8]
[7] CB 68-71.
[8] CB 95-97.
On 30 December 2018 Ms Gill sent to the Tribunal a written statement dated 25 December 2018 (25 December 2018 Submissions)[9] and a copy of an AFP National Police Certificate in respect of the Applicant, dated 18 September 2018.[10] In the 25 December 2018 Submissions Ms Gill conceded that neither herself or the Applicant had applied for an AFP check during the 12 months immediately prior to the day when the Visa Application was lodged.
[9] CB 114-117.
[10] CB 118.
Ms Gill attended the hearing at the Tribunal on 3 January 2019, but neither the Applicant nor Ms Kaur attended.[11]
[11] CB 121-122.
On 3 January 2019 the Tribunal notified Ms Gill, the Applicant and Ms Kaur of the Tribunal Decision,[12] wherein the Tribunal affirmed the Delegate’s Decision not to grant the Visa.[13]
[12] CB 125-126.
[13] CB 127-131.
The Tribunal Decision:
(a)Noted that the primary criteria for the Visa must be satisfied by at least one applicant and that other members of the family unit who were applicants for the Visa needed to satisfy only the secondary criteria: at [2];
(b)Identified the requirements of cl 485.213: at [9];
(c)Noted that in the Visa Application, Ms Gill had answered “no” to the question about whether she had applied for an AFP check: at [10];
(d)Noted that no evidence that Ms Gill had applied to the AFP for a police check within the specified 12 month period had been provided: at [10];
(e)Considered the 25 December 2018 Submissions: at [11] and [12];
(f)Explained to Ms Gill that cl 485.213 was a “time of application criteria”: at [13];
(g)Found that Ms Gill did not satisfy cl 485.213 because, when the Visa Application was made, it was not accompanied by evidence that Ms Gill had applied for an AFP check during the 12 months immediately before the day of the Visa Application: at [18];
(h)Found that Ms Gill did not satisfy the criteria for the grant of the Visa and that the Applicant and Ms Kaur did not meet the secondary criteria for the Visa in cl 485.311 of Schedule 2 of the Migration Regulations: at [19]; and
(i)Affirmed the Delegate’s Decision not to grant the Visa: at [20] and [21].
PROCEEDINGS BEFORE THE COURT
Substantive Application
On 23 January 2019 the Substantive Application was filed. The Substantive Application named Ms Gill, Ms Kaur and the Applicant as the First, Second and Third Applicants (together the Applicants) respectively. The Substantive Application sought orders that the Tribunal Decision be quashed; and that a writ of mandamus be directed to the Tribunal directing them to determine the Substantive Application according to law.
The Substantive Application contained three (3) grounds of review, as follows:
The delegate of the minister as well as Hon. Member of the Tribunal did not consider the fact that after filing the application, I applied for my husband’s AFP, which was before the decision my application for Subclass 485. (Ground 1)
The delegate of the minister did not exercise s. 57 of the Migration Act 1958 under which we could withdraw the application of Subclass 485 and lodge the application again. (Ground 2)
Subclass 485 is a visa which cannot be lodged outside of the Australia and s 48 of the Migration Act 1958 restrict us to apply for any other application while onshore. (Ground 3)
(Words in bold added, otherwise without alteration)
On 23 January 2019 the Applicants also filed an affidavit deposed to by Ms Gill (Applicants’ 23 January 2019 Affidavit) which attached a copy of the Tribunal Decision to it.
On 5 February 2021 Orders were made by consent by Registrar Carlton amending the name of the Minister; listing the proceeding for a show cause hearing pursuant to r 7.01 of the Federal Circuit Court Rules 2001 (Cth) (2021 Rules) on a date to be advised; appointing the Applicant and Ms Gill as joint litigation guardians of Ms Kaur; and Orders for the filing of further material by the parties.
On 21 February 2019 the Minister filed a response to the Substantive Application (Response). The Response contended that the Tribunal Decision was not affected by jurisdictional error and sought orders that the Substantive Application be dismissed and that the Applicants pay the Minister’s costs.
On 31 March 2021 the Minister filed the Court Book (Court Book).
On 8 May 2024 Registrar Van Der Westhuizen (Registrar) adjourned the call over of this proceeding to 21 May 2024 and noted that the Applicant required a Punjabi interpreter.
On 21 May 2024 the Registrar made Orders amending the name of the Minister and again adjourning the call over of this proceeding to 2 July 2024. It was noted that the solicitors for the Minister would prepare proposed consent orders for the finalisation of the proceeding as between Ms Gill and Ms Kaur. It was also noted that the Applicant intended to seek legal advice as to his position in circumstances where he was no longer in a relationship with Ms Gill.
On 2 July 2024 the Registrar made Orders (2 July 2024 Orders) that included Orders:
(a)By consent that:
(i)The Substantive Application be discontinued in respect of Ms Gill and Ms Kaur;
(ii)Ms Gill pay the Minister’s costs in the proceeding to date fixed in the sum of $2089.36; and
(iii)Costs in respect of the Substantive Application the Applicant and the Minister were reserved;
(b)By the Court that:
(i)The Minister serve on the Applicant the Court Book and an amended response containing the application for summary dismissal or before 10 July 2024;
(ii)The Minister file and serve written submissions and any affidavit evidence in support of the Minister’s application for summary dismissal at least 14 days before the hearing of the summary dismissal application; and
(iii)The Applicant file and serve written submissions and any affidavit evidence in response to the Minister’s application for summary dismissal at least seven (7) days before the hearing of the summary dismissal application.
The 2 July 2024 Orders included a notation that the relationship between Ms Gill and the Applicant had ended; that Ms Gill and Ms Kaur had obtained visas and wished to discontinue the proceeding; and that the Applicant maintained the proceeding in his own right.
On 11 July 2024 the Minister filed an Amended Response (Amended Response) which sought orders that the Substantive Application be summarily dismissed pursuant to r 13.13 of the 2021 Rules and that the Applicant pay the Minister’s costs.
On 26 September 2024 the Minister filed an Outline of Submissions in support of the Minister’s application for summary dismissal pursuant to r 13.13 of the 2021 Rules (Minister’s Submissions).
On 17 October 2024 the hearing of the Minister’s application for summary dismissal took place before the Registrar via Microsoft Teams. The Applicant appeared self-represented with the assistance of a Punjabi interpreter and a Solicitor appeared on behalf of the Minister. The Registrar made Orders (17 October 2024 Orders) that:
(a)The name of the Minister be amended to ‘Minister for Immigration and Multicultural Affairs’;
(b)The Substantive Application be dismissed pursuant to r 13.13 of the 2021 Rules; and
(c)The Applicant pay the Minister’s costs of the proceeding fixed in the sum of $3,144.70.
Review Application
The Applicant filed the Review Application on 30 October 2024 seeking review of the 17 October 2024 Orders. The Review Application seeks orders that the 17 October 2024 Orders be quashed; the matter be remitted to the Tribunal for re-consideration; and costs.
The Applicant also filed on 30 October 2024 an Affidavit (Applicant’s 30 October 2024 Affidavit). The Applicant’s 30 October 2024 Affidavit states:
I am the Applicant in this application.
I applied for a 485 Graduate visa on 4 August 2018 which was refused by the Delegate of the minister on 5 September 2018.
I applied for a merit review with the Administrative Appeals Tribunal which was affirmed on 3 January 2019.
I further applied for a judicial review on 23 January 2019 which was heard in Court by Registrar Van Der Westhuizen on 17 October 2024.
The decision of the Court/Tribunal is affected by the principle of law.
(Without alteration)
On 31 October 2024 Registrar Downing made Orders (31 October 2024 Orders) that:
(a)The hearing of the Review Application be listed on 12 November 2024;
(b)The Applicant file and serve any written submissions in relation to the Review Application by 6 November 2024; and
(c)The Minister file and serve any written submissions in relation to the Review Application by 8 November 2024.
Neither the Applicant nor the Minister filed any submissions in relation to the Review Application pursuant to the 31 October 2024 Orders. On 11 November 2024 the Minister filed a list of authorities (Minister’s List of Authorities).
EVIDENCE AND SUBMISSIONS
The Review Hearing took place on 12 November 2024. The Applicant appeared in person with the assistance of a Punjabi interpreter.
The Court confirmed with the Applicant the documents filed by the Applicant that it had before it relevant to the Review Hearing, these being the Substantive Application; the Applicants’ 23 January 2019 Affidavit; the Review Application; and the Applicant’s 30 October 2024 Affidavit.
The Court advised the Applicant that the Review Application was out of time and asked whether he had any explanation for the delay in filing, as well as whether he had any submissions to make relating to the grounds of review in the Substantive Application. The Applicant said that he did not want to make any submissions in relation to either of these matters.[14]
[14] Transcript P4: L7-9; P6:L17-38.
At the Review Hearing the Minister confirmed reliance upon the Amended Response; the Minister’s Submissions; and the List of Authorities.
The Court has also had regard to the material contained within the Court Book and the transcript of the Review Hearing.
APPLICABLE LEGAL PRINCIPLES
In accordance with s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), parties may apply for review of an exercise of power by a delegate under s 254 of the FCFCOA Act.
Pursuant to r 21.02(1) of the 2021 Rules, applications for review of an exercise of power by a Registrar must be made within seven (7) days. This timeframe may be extended by the Court on any terms that it thinks fit, or with the consent of the parties: r 21.02(2) of the 2021 Rules. There are, however, no prescribed statutory criteria to inform the discretion to extend time.
The factors of relevance in determining whether to exercise the discretion to extend time in the context of applications for judicial review under s 477 of the Migration Act1958 (Cth) (Migration Act) are informative. They include the length of the delay; any explanation or reasons for the delay; prejudice to the respondent or third parties; and the merits of the underlying application.
The Court must be satisfied that an extension of time is not only desirable, but that it is needed in the administration of justice: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 276 CLR 579 (Katoa) at [12].
The level of consideration that is given to the assessment of the merits of the proposed grounds is a matter for the Court: Katoa at [19]. It has been held that in determining whether to grant an extension of time to file such an application, the prospects of success of the substantive application ought to be considered within the broader assessment of the interests of justice, so as not to render the extension of time futile: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9].
In accordance with r 21.04(1) of the 2021 Rules, the hearing of an application for review of an exercise of power by a Registrar such as the Review Application, is to proceed as a ‘hearing de novo’. The Court may receive evidence of any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04(2)(a) and (b) of the 2021 Rules; Allison v Murphy [2021] FCAFC 232 at [11]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19].
CONSIDERATION
Should leave be granted to file the Review Application out of time?
Length and Explanation for Delay
The Review Application was lodged and filed on 30 October 2024, some seven (7) days out of time as required by r 21.02(1) of the 2021 Rules.
No explanation or reason for the delay were provided by the Applicant in the Review Application, the Applicant’s 30 October 2024 Affidavit or by the Applicant at the Review Hearing.
The Solicitor for the Minister submitted at the Review Hearing that the Applicant had not provided any explanation as to the delay in the filing of the Review Application.[15]
[15] Transcript P4:L39-40.
The Court considers that there has been a complete absence of any explanation by the Applicant for the delay in filing the Review Application out of time. Such an absence goes against the Applicant in determining whether the Court should exercise its discretion to extend time.
Prejudice to the Minister
The Minister submitted at the Review Hearing that there would be no specific prejudice to the Minister if leave were to be granted for the filing of the Review Application out of time, save for the finality of administrative decision-making.[16]
[16] Transcript P4:L39-40.
I accept that no prejudice would be brought upon the Minister if time were extended for the filing of the Review Application.
Prospects of Success of the Substantive Application
The Minister opposed the granting of an extension of time on the basis of the merits of the Review Application and the Substantive Application.[17]
[17] Transcript P4:L41-P5:L2.
Once again, the Applicant did not address in the Review Application, the Applicant’s 30 October 2024 Affidavit or at the Review Hearing, the prospects of success or merits of the Substantive Application, nor why he sought review of the Registrar’s Orders.
In order to assess whether the Substantive Application has reasonable prospects of success, it is necessary to consider the grounds of review therein.
Ground 1
Ground 1 does not engage with the substance of the Tribunal’s Decision. The Tribunal was required to evaluate whether Ms Gill, as the primary applicant for the Visa, met the criteria for the Visa. The Tribunal concluded that Ms Gill had not satisfied the criteria of cl 485.213 as she had not provided evidence of an AFP check in the 12 months immediately preceding the date of the Visa Application.[18] The Tribunal was aware that Ms Gill had submitted an AFP check in relation to the Applicant[19], however that fact was not relevant to the dispositive issue before the Tribunal.
[18] Decision of the Administrative Tribunal, 3 January 2019 (Tribunal Decision) at [18].
[19] Tribunal Decision at [12].
The Court considers that there is no reasonable prospects of success in establishing Ground 1.
Ground 2
In Ground 2 the Applicant seeks review of the Delegate’s Decision, which the Court does not have jurisdiction to do: s 476(2)(a) Migration Act. Insofar as Ground 2 is an assertion that the Tribunal failed to afford the Applicant procedural fairness, the Court determines that the Applicant was properly invited to a hearing: ss 360 and 360A Migration Act. While the Applicant did not attend the hearing, Ms Gill did. As the Tribunal made its decision on the same basis as the Delegate’s Decision, the Applicant was on notice of the issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152 at [35]. The Tribunal otherwise complied with Part 5 of Division 5 of the Migration Act.
The Court considers that there is no reasonable prospect of success in establishing that Ground 2 gives rise to jurisdictional error.
Ground 3
Ground 3 is a statement of the operation of s 48 of the Migration Act and cannot give rise to jurisdictional error.
Materiality and Futility
Even if the Tribunal did commit jurisdictional error (which I have determined that it did not), any error would not have been material, as Ms Gill was incapable of satisfying cl 485.213 and therefore the criteria for the grant of the Visa. As a result, the Applicant was incapable of satisfying cl 485.311 of Schedule 2 of the Migration Regulations, as a Secondary Applicant. There was no realistic possibility that the Tribunal could reach any other decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [14]; Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [2], [45]; MZAPC v Minister for Immigration and Border Protection [2021] 273 CLR 506 at [2]-[3].
Alternatively, as the Applicant is not capable of satisfying the criteria for the grant of the Visa remittal to the Tribunal would be futile.
CONCLUSION
The Court does not consider it to be in the interests of the administration of justice to extend the time for the Applicant to file the Review Application. This is so due to the complete lack of explanation provided by the Applicant for the delay in filing the Review Application and the Substantive Application having no reasonable prospects of success.
At the Review Hearing, the Minister confirmed that costs against the Applicant were sought in the amount of $1,255.75.[20] I am satisfied that such an amount is appropriate in the circumstances and an Order will be made accordingly.
[20] Transcript P5:L18-P6:L15.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton KC. Associate:
Dated: 21 November 2024
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