Singh v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 718

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 718   

File number:	MLG 2540 of 2022
Judgment of:	JUDGE SYMONS
Date of judgment:	5 August 2024
Catchwords:	MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – no adequate explanation for delay – whether thirty day delay prejudicial to respondent – no realistic prospect of success – extension of time refused with costs
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 143, 254, 256. Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.13, 21.02, 21.04. Migration Act 1958 (Cth), ss 55, 56, 360, 363, 357A, 359A, 476. Migration Regulations 1994 (Cth) sch 2, cl.407.214.
Cases cited:	Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Division:	Division 2 General Federal Law
Number of paragraphs:	40
Date of last submissions:	5 August 2024
Date of hearing:	5 August 2024
Place:	Melbourne
Applicant:	In person
Solicitor for the First Respondent	Ms Rath, Sparke Helmore

ORDERS

MLG 2540 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NAVJOT SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	5 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The application for an extension of time to review the decision made by a Registrar filed on 3 July 2024 is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $1,000.

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

(Delivered ex tempore: revised from transcript)

JUDGE SYMONS:

INTRODUCTION

1. The application before the Court is an application made under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) for review of a decision made by a Registrar of the Court.  On 28 May 2024 Judicial Registrar Cummings summarily dismissed a judicial review application filed by the applicant on 14 November 2022 in respect of a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Training (Class GF) (Subclass 407) visa (the visa).

2. The application for review of the Registrar’s decision was made outside of the time frame prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The applicant therefore requires an extension of time before he can prosecute his review, although his review material does not demonstrate an awareness of this requirement and does not therefore provide any explanation for the failure to lodge the review within the statutory time limit. 

3. The Minister took exception to the failure of the applicant to formally seek an extension of time (noting that the application was otherwise “incompetent”) but was not opposed to the applicant amending his application orally at hearing to do so.  This occurred and I am satisfied that the extension of time application is properly before me.

   BACKGROUND

4. The applicant is a citizen of India. On 19 February 2019 the applicant applied for the visa, sponsored by A Orlando (Victoria) Pty Ltd (intended sponsor) in the occupation of Hairdresser (CB 1-125).

5. On 28 March 2019 the intended sponsor’s nomination application was refused (CB 35).

6. On the same day, a delegate of the Minister (delegate) invited the applicant to comment on information that he was not the subject of an approved nomination by the intended sponsor (or any other sponsor), as was required for the grant of the visa. The delegate stated that as a result, the applicant was currently unable to meet criterion 407.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). For the applicant’s benefit, the delegate extracted criterion 407.214, which reads as follows:

   407.214

   If the approved sponsor is not a Commonwealth agency:
   (a) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and
   (b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and
   (c) the approval of the nomination has not ceased under regulation 2.72A; and
   (d) either:

   (i) there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or
   (ii) it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor

7. The delegate indicated that in the absence of an approved nomination from the intended sponsor the applicant could either provide comment on his intentions regarding the visa application (including providing evidence that he was the subject of an approved nomination) or provide a written request to withdraw the visa application. The applicant was required to respond within 28 days (CB 28-31).

8. The applicant did not respond to the delegate’s invitation to comment.

9. On 9 May 2019 the delegate refused to grant the applicant the visa as the applicant was not identified in an approved nomination, and therefore did not satisfy cl 407.214 of the Regulations (CB 32-36).

10. On both 17 May and 20 May 2019, a Registered Migration Agent who, at the time, was assisting the applicant, wrote to the Tribunal notifying it that on 16 April 2019, the intended sponsor had applied to the Tribunal for review of the decision not to approve the nomination (CB 37-39)

11. On 22 May 2019, the delegate re-notified the applicant that the visa had been refused (CB 40-43).

12. On 28 May 2019, the applicant applied to the Tribunal for review of the delegate’s decision with the assistance of the Registered Migration Agent.  His application attached a copy of the delegate’s decision (CB 44-45).

13. On 26 September 2022 the applicant was invited to attend a hearing to appear before the Tribunal to give evidence and present arguments on 13 October 2022 (CB 51-54).

14. On 12 October 2022, the applicant notified the Tribunal that his representative had withdrawn (CB 56-58).

15. On 13 October 2022, the applicant appeared before the Tribunal with the assistance of a Hindi interpreter (CB 64-66).

16. On the same day, the Tribunal member made an oral decision to refuse the visa (CB 68-69).

17. On 1 December 2022 the Tribunal produced a written statement of decision and reasons which it provided to the applicant (CB 71 – 73).

    THE DECISION OF THE TRIBUNAL

18. The Tribunal gave the following statement of decision and reasons:

    APPLICATION FOR REVIEW

    1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2019 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under the Migration Act 1958 (Cth) (the Act).

    2. At the hearing on 13 October 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

    STATEMENT OF DECISION AND REASONS

    3. The time is 10.03 am, this is an oral decision in an application by Mr Navjot Singh, AAT reference XXXX. Mr Singh applied for a subclass 407 visa on 24 February 2019, to undertake occupational training as a hairdresser. His sponsor was a company called A Orlando (Victoria) Pty Ltd.

    4. The criteria for a grant of a subclass 407 visa are set out of part 407, in Schedule 2 to the Migration Regulations 1994 clause 407.214 requires that the applicant's sponsor has nominated a program of occupational training in relation to the applicant, and the nomination has been approved. The decision of the delegate, which was provided to the tribunal by the applicant, outlines that the nomination application made by A Orlando (Victoria), was refused.

    5. In today's hearing, the applicant confirmed that there is no nomination approved in relation to him. He gave evidence that he has been looking for a new business to nominate him and requested some additional time. I am not inclined to provide any additional time and delay this decision indefinitely.

    6. I note that the nomination application made by A Orlando (Victoria) was refused more than three years ago, and there is no new application on foot. Given that there is no approved nomination, the application cannot meet the requirements of clause 407.214.

    7.        The tribunal affirms the decision not to grant the applicant a subclass 407 visa.

    DECISION

    8.        The Tribunal affirms the decision under review.

    PROCEEDINGS IN THIS COURT

19. On 14 November 2022, the applicant filed an application under s 476 of the Migration Act 1958 (Cth) (Act) seeking judicial review of the Tribunal decision. The applicant raised the following grounds of application, reproduced without alteration:

    1.The Tribunal failed to consider whether clause 407.214 of the Regulations was inconsistent with sections 55, 56, 353, 357A and 359 of the Act.

    2.The Tribunal failed to exercise the jurisdiction and powers conferred by s353 of the Migration Act 1958.

    Particulars

    a. Section 353(a) of the Act states that the Tribunal is not bound by technicalities and s353(b) states that the Tribunal shall act according to substantial justice and merit of the case.

    b.   The merit of the case required due consideration of the fact that the applicant has a genuine intention to stay in Australia to train.

    c.   The merit of the case also demanded that, the fact that I could lodge the file by answering to the main question "No". It is a technical error from the department's side.

    d.   The Tribunal, despite accepting that department's application process should be improved and there should be some relief be granted, refused my application.

    3.The Tribunal failed to consider whether clause 407.214 of the Regulations was inconsistent with sections 55, 56, 353, 357A and 359 of the Act.

    4.The Tribunal breached s359a of the Act.

    Particulars

    a.   The Tribunal failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    b.   The Tribunal failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and

    c.   invite me to comment on it

    Throughout the decision record, the Tribunal did not follow proper procedural fairness; therefore, the result is out of jurisdictional error.

    LEGISLATION AND PRINCIPLES RELEVANT TO APPLICATIONS FOR REVIEW

20. Section 256(1) of the FCFCOA Act allows a party to a proceeding in which a delegate has exercised the powers of the Court under s 254(1) to apply to the Court for a review of the exercise of that power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules. The time limit prescribed by r 21.02(1) of the Rules is seven days. Rule 21.02(2)(a) allows the Court to extend this time frame on any terms it thinks fit.

21. Rule 21.04 provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, I am required to conduct what is effectively a re-hearing of the Minister’s application for summary dismissal save that any earlier tendered affidavit or exhibit, as well as any transcript of the proceeding, may be received as evidence on the review.

22. The review application was listed before me on 5 August 2024. The applicant appeared in person and was assisted by an interpreter in the English and Punjabi languages. The Minister was represented by Ms Rath, solicitor.

23. The Minister relied on his written submissions filed on 1 August 2024 and made brief further oral submissions through his solicitor.  The applicant was invited to tell the Court what, in his view, the Tribunal had done wrong when it refused to grant him a visa.  The applicant told the Court that he had sought further time, including to obtain a new sponsor, and the Tribunal had denied his request. 

    EXTENSION OF TIME APPLICATION

    Relevant considerations

24. The principles that apply to whether the Court should grant an extension of time are well-established: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments). In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the underlying application.

    Length of delay

25. In the present case, the Judicial Registrar’s decision was made on 28 May 2024 and the seven-day prescribed time frame to seek review of that decision ended on 4 June 2024.  The application for review was filed on 3 July 2024 and was therefore filed 30 days out of time.  In the context of a legislative scheme for review that priorities expediency, I consider this to be a significant delay.

    Explanation for the delay

26. As noted earlier, the applicant’s review material did not address the question of delay or offer any explanation.  When given the opportunity at hearing to provide an explanation, the applicant told the Court that he was confused and thought that a 35-day time frame instead applied to his review application.

27. The Minister submits that this explanation is inadequate, and I accept this submission.

    Prejudice

28. The Minister conceded that he would suffer little prejudice as a result of the delay. However, the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.

    Merits: whether the applicant has a reasonably arguable case

29. I then turn to consider the merits of the underlying application.  In the context of considering an extension of time to seek review of the Registrar’s decision, the underlying application is the application for review of the Judicial Registrar's decision to summarily dismiss the applicant’s judicial review application.  For the following reasons, the applicant does not have a reasonably arguable case to prevent summary dismissal of his judicial review application on a de novo review of the Judicial Registrar’s decision.

30. The Court has the power to summarily dismiss the application for judicial review if the applicant has no reasonable prospects of successfully prosecuting that application: see s 143(2)(b) of the FCFCOA Act and r 13.13(a) of the Rules. This necessarily directs attention to the applicant’s judicial review application.

31. At a reasonably impressionistic level, the applicant’s judicial review application has no reasonable prospects of success.  This is because, by his proposed grounds of review (refer [18] above), the applicant has failed to grapple with the reality that on the facts found by the Tribunal (and confirmed by the applicant at hearing before the Tribunal) there was an inevitability about the decision of the Tribunal.

32. In other words, in circumstances where it was a requirement for the grant of the visa that the applicant be the subject of an approved nomination, and the nomination application made by the intended sponsor had been refused, the Tribunal was bound to make the finding that the applicant could not meet the requirements of clause 407.214.

33. The Tribunal’s conclusion was fortified by the applicant’s own confirmation at hearing that there was no nomination approved in relation to him nor was there any new application on foot despite the fact that the application made by the intended sponsor had been refused more than three years prior.

34. Furthermore, I accept the submission of the Minister that both proposed grounds one and three are misconceived, in that there was no legislative requirement for the Tribunal to consider whether criterion 407.214 was consistent with any of the stated provisions of the Act.

35. Insofar as proposed ground two alleges that the Tribunal failed to exercise jurisdiction in accordance with s 353 of the Act, the Minister submits that this section serves a discretionary rather than restrictive purpose and does not provide a basis for seeking judicial review (citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49]). This submission, which I accept, provides a complete answer to the applicant’s ground two.

36. I am in any event not persuaded that the merits of this case required the Tribunal to turn its mind to either (as the applicant suggests in his grounds of review) his genuine intention to stay in Australia to train or the fact that he was able to lodge his application in a particular way. I accept the submission of the Minister that the Tribunal’s inquiry was necessarily of narrow compass having regard to the mandatory nature of the visa criterion directed at sponsorship, and its options were effectively reduced to one, namely to affirm the refusal decision. This occurred when faced with the reality that the applicant did not have an approved nomination, or the prospect of obtaining one in the foreseeable future, which might have otherwise have provided a proper basis for the exercise by the Tribunal of its power to adjourn under s 363(1)(b) of the Act. I note that the failure to adjourn and to give the applicant more time was the sole basis upon which the applicant sought to challenge the decision at the hearing conducted before me today.

37. Proposed ground four alleges that the Tribunal breached s 359A of the Act by depriving the applicant of procedural fairness. I consider this ground is also without merit. The Minister submits, and I accept, that there is no viable basis on which to suggest that the review proceedings before the Tribunal were procedurally unfair in circumstances where: (i) the Tribunal invited the applicant to attend a hearing, in accordance with s 360 of the Act; (ii) the applicant was on notice from the delegate’s decision that the determinative issue on review would be whether he was the subject of an approved nomination and met cl 407.214; and (iii) during the hearing, the Tribunal member engaged with the applicant by asking questions that were directly relevant to the question of whether he was the subject of an approved nomination.

    Balance of extension of time factors

38. Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicant to seek review of the Judicial Registrar’s decision for the reason that there is no realistic prospect of the Court finding that the applicant has any reasonable prospect of success in his judicial review application and where the significant delay in making the review application is not adequately explained.

    CONCLUSION

39. I therefore refuse the application for an extension of time for the applicant to seek review of the Judicial Registrar’s decision.  The consequence is that the order made by the Judicial Registrar on 28 May 2024 summarily dismissing the applicant’s judicial review application filed 14 November 2022 and awarding costs in the amount of $4,189.38 to the Minister must stand.

1. The Minister has successfully defended the extension of time application and costs should follow this event.  I will make an order that the applicant pay the Minister’s costs fixed in the amount of $1,000.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       9 August 2024