Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 479
•30 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 479
File number: MLG 683 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 30 May 2024 Catchwords: MIGRATION – Judicial review – Regional Employer Nomination Visa – Where the nominator’s application had been refused – Where as a result of the refusal of the nominator’s application the Applicant could not meet a mandatory criterion for the grant of a visa – Where the only decision available to the Tribunal was to refuse to grant the visa – Where a Registrar made a decision summarily dismissing the application for judicial review – Where the Applicant seeks an extension of time to bring an application for review of the exercise of a power by the Registrar – Where the underlying application has no reasonable prospect of success – Application for an extension of time to bring application to review of power of the Registrar dismissed Legislation: Migration Act 1958 (Cth) s. 359A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 13.13
Migration Regulations 1994 (Cth) it. 1114C, reg. 519, cl. 187.233
Cases cited: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Chen v Minister for Immigration [2004] FMCA 860
Harris v Caladine (1991) 172 CLR 84
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110; [2017] FCAFC 67
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 18
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
T&K McKrill Holdings (2017) 325 FLR 239; [2017] FCCA 2370
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submissions: 23 May 2024 Date of hearing: 23 May 2024 Applicant: In person Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 683 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATENDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 5 April 2024 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum 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
JUDGE CHAMPION
INTRODUCTION
Mr Satender Singh (the Applicant) is a citizen of India.
On 13 December 2017, the Applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (visa). The nominating employer was R & Mannat Pty Ltd (nominator or sponsor)(CB1–13).
At the heart of the issues before me is that a mandatory criterion for the grant of the visa was the approval of the employer’s (the nominator’s) nomination. Without the approval of the employer’s nomination, the Tribunal could not be satisfied that the Applicant met a mandatory criterion for the grant of the visa. In that sense, the Applicant’s visa nomination was “tied” to the approval of the sponsor’s nomination (Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 18, [99]–[100]). The relevant provision was a sub-paragraph of cl. 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth). It provided that a criterion for the visa to be granted to the Applicant was that the sponsor’s nomination had been approved, by its reference to the requirement for the following condition to be satisfied: “The Minister has approved the nomination.”
In this case, on a date before the Applicant’s visa application came before the Tribunal a delegate and subsequently a different Tribunal, by a decision on review made on 20 September 2022, did not approve the employer’s nomination. Without an approved nomination the only available decision to the Tribunal was to refuse to grant the visa to the Applicant as it did by its decision on 6 April 2023.
In this Court, by an application made on 24 April 2023, the Applicant sought judicial review of the Tribunal’s decision. The grounds are detailed below.
By its response in this court dated 21 September 2023, the First Respondent made an application for the summary dismissal of the Applicant’s judicial review application pursuant to r. 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on the basis that the application had no reasonable prospect for success.
On 5 April 2024 a Registrar granted the First Respondent’s summary dismissal application and summarily dismissed the Applicant’s substantive judicial review application.
On 29 April 2024 the Applicant applied for a review of the Registrar’s decision.
MATERIAL BEFORE THE COURT
I admitted the Court Book into evidence (CB1-71) (Ex. CE-1).
I also admitted the affidavit of Ms Amron Rath made 5 February 2024 (together with its annexure) into evidence (Ex. CE-2). The forensic significance of an annexure to Ms Rath’s affidavit was to record that the departmental records were that as of 4 May 2023 “R & Mannat Pty Ltd has not sought judicial review” of the Tribunal’s refusal of its nomination. As such at least as of 4 May 2023 there was no prospect of the Tribunal’s decision refusing the employer’s nomination being overturned. There was no suggestion of any change in circumstances since 4 May 2023.
I also admitted into evidence the Applicant’s affidavit in support of his application made on 29 April 2024.
The Minister relied on a written outline. Despite orders permitting him to do so, the Applicant did not file written submissions.
THE TRIBUNAL DECISION
The Tribunal’s decision frames the judicial review application.
By letter dated 15 March 2023 the Tribunal had invited the Applicant to attend a hearing before the Tribunal on 20 April 2023 (CB61–63).
Before the hearing occurred, by a further letter dated 22 March 2023, the Tribunal invited the Applicant, pursuant to s. 359A of the Act, to comment on or respond to information as follows (CB70–71):
The particulars of the information are:
•On 13 December 2017 R & Mannat Pty Ltd (your nominator) made an application listed as Direct Entry Nomination under Regional Sponsored Migration Scheme (187 visa). The position was said to be Cook and nominated you. However, on 15 July 2019 the delegate of the Minster rejected the application.
•On 31 July 2019 the nominator sought a review of the delegate's nomination refusal decision (case number 1921073).
•However, on 30 September 2022 the Tribunal affirmed the decision not to approve the nomination.
•This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.
This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.
If we rely on this information in making our decision, the decision under review must be affirmed.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 5 April 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 5 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 5 April 2023 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If 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.
[Underlining added]
The Applicant did not respond to the Tribunal’s letter dated 22 March 2023 by 5 April 2023 (the deadline set out in the s. 359A letter) and the Tribunal referred to as the period between 22 March 2023 and 5 April 2023 as the “prescribed period”.
Having not had a response to its s. 359A letter, the Tribunal cancelled the hearing scheduled for 20 April 2023 (CB75, [6]) and decided to proceed to decision without taking further steps to obtain comments or response (CB75, [7]).
As it happened, the Tribunal moved very promptly and published its reasons on 6 April 2023, the day after the deadline for response to its s. 359A letter.
The Tribunal referred in its reasons to its letter dated 22 March 2023 and held in its reasons as follows (CB75, [5]):
The review applicant has not commented or responded within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.
The Tribunal referred to cl. 187.233 and noted that it required that the person who will employ the Applicant is a person who made the nomination, and that the “nomination has been approved and has not been subsequently withdrawn” (CB76, [10]). The Tribunal noted that another tribunal on 30 September 2022 had refused the nomination by R & Mannat (CB76, [11]).
As a result, the Tribunal found that “cl. 187.233 is not met” and the visa was refused (CB76, [13] –[14]).
THE JUDICIAL REVIEW APPLICATION
By his application dated 24 April 2023 the Applicant sets out 3 grounds of judicial review as follows:
1. The Tribunal made a jurisdictional error in finding that the First Applicant does not meet the criteria clause 187.233 of Schedule 2 to the Regulations.
a. A jurisdictional error was made by the Tribunal in refusing the related nomination application referred to in the visa application.
2. The Tribunal made a jurisdictional error in finding that an adjournment of review should not be granted under subsection 363(l)(b) of the Migration Act to allow the applicants additional time to provide further evidence to support their review applications.
3. The Tribunal made a jurisdictional error to decide the requirement of 11 (4)(c)(iii)(d) criteria clause 187.233.
SUMMARY DISMISSAL
The First Respondent brought an application that the judicial review application be summarily dismissed. Rule 13.13(a) provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;…
[Emphasis added]
In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [58]–[60] a plurality in the High Court both warned against any “judicial glossing” of the expression “no reasonable prospect” and said at [59]:
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power
DE NOVO REVIEW
The Applicant seeks a review of the Registrar’s decision pursuant to s. 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). Rule 21.04(1) of the Rules provides for judicial review of the exercise of power by a Registrar by way of a hearing de novo (see also: Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, 95).
The Grounds
Ground 1 is not particularised. The Applicant has not put before me any material which suggests that the Tribunal was in error to find that the employer’s nomination had not been approved or the tribunal’s decision to refuse to approve the employer’s nomination made on 20 September 2022 was subject to challenge. The visa applicant has no “right, entitlement or standing” to challenge the nomination decision (T&K McKrill Holdings (2017) 325 FLR 239; [2017] FCCA 2370, [29] –[30]).
Because the employer’s nomination had been refused there was only one decision available to the Tribunal as to the Applicant’s visa application.
I accept the First Respondent’s submissions that Ground 2 (which contends that the statutory discretion to adjourn the hearing from time to time miscarried) is misconceived because: “there is no evidence before the court to demonstrate that the applicant contacted the Tribunal to request an extension of time to provide a response to the Tribunal’s s. 359A invitation”. In the absence of any adjournment request, or, more specifically, any request for an extension of time to respond to the s. 359A letter, any argument that the Tribunal’s discretion to adjourn the hearing from time to time pursuant to s. 363(1)(b) miscarried does not have a reasonable prospect of success.
As to the s. 359A letter, I adopt the following statement from the judgment of the Full Court in (Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110; [2017] FCAFC 67 [56]) as applicable in this case. The “consequences for an applicant of a failure to comply with a s. 359A letter under the statutory scheme can properly be described as drastic, but I see no basis on which it can be said the tribunal erred in sending a s. 359A letter in these circumstances”. Applying that statement to this case, there was no error in the Tribunal sending the 359A letter in circumstances in which the employer’s nomination had not been approved given the consequences for the Applicant’s own visa application. The drastic consequences which resulted from a failure to respond to the s. 359A letter within the prescribed period do not disclose error.
Ground 3 alleges that the “Tribunal made a jurisdictional error to decide the requirement of 11(4)(c)(iii)(d) criteria clause 187.233”.
It is apparent that Ground 3 is intended to refer to “paragraph 1114C(3)(d)” of Schedule 1 within cl. 187.223(1)(c) which provided at the relevant time:
187.223
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in the Temporary Residence Transition stream; and
….
(c) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
[Emphasis added]
There was no apparent issue on the face the Tribunal’s reasons as to whether the employer’s declaration did or did not comply with paragraph 1114C(3)(d) of Schedule 1. The Applicant does not provide any particulars of this alleged error in relation to paragraph 1114C(3)(d) of Schedule 1 in his grounds of judicial review. The reasons as to why the employer’s nomination had not been approved (whether it complied with paragraph 1114C(3)(d) or not) were not relevant to the Tribunal’s decision as to the visa application before it in the absence of material that the employer was challenging the refusal of its nomination. The approval of the employer’s nomination was a criterion which was “either fulfilled or not fulfilled” at the time of the decision (see: Singh, [88])
The Applicant does not have a reasonable prospect of success as to Ground 3 of his judicial review application.
Futility
Finally, the First Respondent submitted that even if there were jurisdictional error, any remittal to the Tribunal would be futile as the nomination refusal decision remains undisturbed because R & Mannat Pty Ltd did not seek judicial review in relation to the Tribunal’s refusal of its nomination as detailed in the departmental communication dated 4 May 2023 annexed to Ms Rath’s affidavit. I see the force in this submission.
I note, however, that this matter comes before me on a summary dismissal application. Conceptually, it appears to me the futility argument rests on the premise that the application has been successful but futility means that discretionary relief ought not to be granted. As to the constitutional writs, relief is discretionary and there is no relief as of right. One consideration that may lead to the discretionary refusal of relief is where "no useful result could ensue" from remittal (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, [56]). This court has in the past summarily dismissed an application for judicial review on the basis of futility (Chen v Minister for Immigration [2004] FMCA 860, [17]). It is not necessary on this application to express a view as to whether, even if there has been an error (and I see no reasonable prospect of success in the grounds), where no useful result can ensue from the grant of relief that may be a basis to summarily dismiss an application.
Conclusion
Suffice to say, I accept the First Respondent’s submissions that each of Grounds 1-3 have no reasonable prospect of success in circumstances “where the applicant was not the subject of an approved nomination, the Tribunal made the only decision available to it”. In that sense, the judicial review grounds are “untenable” or “groundless” (Spencer, above).
AN EXTENSION OF TIME
Rule 21.02(1) of the Rules provides that “an application for review of the exercise of a power by a Registrar must be made within 7 days.” Rule 21.02(2)(a) provides that the “time prescribed […] may be extended by the Court […] on any terms that the Court […] thinks fit”.
The Registrar’s decision was made on 5 April 2024. The application for review of the exercise of power by the Registrar was made on 29 April 2024 some 17 days out of time.
Although in his application for review, the Applicant did not make an application for an extension of time, I permitted the Applicant to make an oral application to extend time when the matter was called on for hearing before me on 23 May 2024 and he did so.
The Court has held that the principles that apply to whether the Court should grant an extension of time under r. 21.02 of the Rules include those well-established principles from Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 (in the context of an application for an extension of time following a Registrar’s exercise of the power of summary dismissal see: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886, [29]). These are: (1) the length of the delay, (2) whether the applicant has a reasonable explanation for the delay, (3) any prejudice to the respondent or third parties, and (4) the merits of the underlying application.
The delay is short. There has been no explanation for the delay. There is no relevant prejudice to the First Respondent, although mere absence of prejudice may be an insufficient reason to grant an extension.
Critically, however, the absence of any underlying merit as to the substantive judicial review application means that it is not in the interests of justice to extend time. Because the Applicant was not the subject of an approved sponsor’s nomination, the substantive judicial review application does not have a reasonable prospect of success. In those circumstances, it is not in the interests of justice to extend time to bring an application for review of the Registrar’s decision.
DISPOSITION
I will order that the application for an extension of time to review the decision made by a Registrar on 5 April 2024 is dismissed. I will order that the Applicant pay the First Respondent’s costs fixed in the sum of $1,000 which is a fair indemnity as to the First Respondent’s costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 30 May 2024
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