Surender v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 765
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Surender v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 765
File number(s): MLG 838 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 21 August 2024 Catchwords: MIGRATION – application for review of Registrar’s decision filed outside of proscribed timeframe – where represented applicant failed to seek extension of time – application dismissed as incompetent with costs. Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth) ss.254, 256(1)
Migration Act 1958 (Cth) s.359, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.13(a), 21.02, 21.03, 21.04(1), 29.02(1), 29.13(1)
Migration Regulations 1994 (Cth) cl.500.217
Cases cited: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Singh v Minister for Immigration [2017] FCAFC 67
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 12 August 2024 Place: Melbourne Solicitor for the Applicant: Quantum Legal Advisory & Migration Consultants Pty Ltd Solicitor for the Respondents: Minter Ellison ORDERS
MLG838 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NIKHIL SUHAS CHENIGARI SURENDER
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent to the proceedings be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 12 June 2024 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $4,189.38.
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 MANSINI
IN SUMMARY
These proceedings relate to an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a student visa refusal decision.
On application of the First Respondent, the judicial review application was summarily dismissed by a Judicial Registrar of this Court because it lacked reasonable prospects of success. The Applicant belatedly sought review of the Judicial Registrar’s decision.
For the reasons set out below, the application is dismissed with costs.
THE APPLICATION BEFORE THE COURT
Context
The Applicant’s originating application for judicial review filed 15 May 2023 (Substantive Application) was summarily dismissed by a Judicial Registrar of this Court, exercising their delegated power pursuant to s.254 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act), on 17 May 2024 (Registrar’s Decision).
A party to a proceeding in which a delegate has exercised powers of this Court under s.254 of the FCFCOA Act may apply to the Court for review, within the time proscribed by the rules of the Court or any further time allowed in accordance with those rules: s.256(1) of the FCFCOA Act.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) apply to the present case and provide that an application for review of a Registrar’s decision must be made in the approved form and within 7 days, which time may be extended on any terms that the Court thinks fit or with consent of the parties: rr.21.02 and 21.03 of the Rules. Accordingly, an application for review of the Registrar’s Decision was to be made by 24 May 2024.
The present application for review of the Registrar’s Decision was not attempted to be lodged until 6 June 2024 and not accepted for filing until 12 June 2024 (Registrar Review Application). The Registrar Review Application did not seek orders or otherwise make an application for an extension of the time within which the application was to be made.
At the first hearing, on 10 July 2024, the Applicant was represented by a lawyer who sought an adjournment in order to take instructions and put on materials. The First Respondent opposed an adjournment. Also canvassed were the need for an extension of the time for making the Registrar Review Application, and the First Respondent’s foreshadowed opposition to such application (were it made).
Notwithstanding the objection, the Applicant was afforded an adjournment of the first hearing and leave to file further materials (including an amended application, evidence and submissions in support of both an extension of time application in relation to the Registrar Review Application and the substance of the Registrar Review Application).
On 26 July 2024, an amended application and outline of submissions were filed on behalf of the Applicant. No affidavit evidence was filed in support.
On 24 July 2024, the First Respondent filed submissions which identified that the Applicant had filed an amended application which sought an extension of the time in which to seek judicial review of the Administrative Appeals Tribunal decision dated 6 April 2023 and reiterated that it did not consent to an extension of time to file an application for review of the Registrar’s decision of 17 May 2024 (were it sought).
At the second hearing, on 12 August 2024, the Applicant was afforded the opportunity to address the threshold issue raised by the First Respondent. Beyond generally asking the Court to allow a correction of any technical error, there was no oral application made by reference to the specific issues or the Rules of the Court.
Is the application incompetent?
The Registrar Review Application before the Court was filed after the expiry of the statutory timeframe meaning, absent consent (as here), leave of the Court is required in order that the matter proceed.
The represented Applicant was afforded an adjournment of the first hearing and opportunity to file an amended application, evidence and submissions in support of a request for an extension of the statutory timeframe within which the application was to be made. There was further opportunity to address the issue at the second hearing. At conclusion of the second hearing, it remained the case that there was no amended or oral application before the Court for orders extending the time for filing of the application to review the Judicial Registrar’s decision of 17 May 2024 (earlier defined as the Registrar Review Application).
As the Registrar Review Application that was accepted for filing on 12 June 2024 is not competent, it is taken to be dismissed.
Would the Court otherwise allow an extension of the time within which an application for review of the Registrar’s decision may be made?
Even if a competent application were before the Court, I would not be persuaded to allow an extension of the time within which the Registrar Review Application may be made. The relevant considerations are addressed in the following paragraphs.
Duration of the delay
The period of the delay in the present case is the time from when the Registrar Review Application was due to be made until the time that a competent application is made (a time that has not yet arisen, as explained above). For completeness, were an application for an extension of the Registrar Review Application made and in the particular circumstances, it would be accepted that the Applicant had a reasonable and acceptable explanation for that part of the delay which post-dated his first attempt at lodgement of the Registrar Review Application on 6 June 2024. The unexplained period of the delay would therefore be a relatively short period of 12 days.
Explanation for the delay
The Applicant filed no evidence in support of the reasons for the delay in filing the Registrar Review Application. Taking the Applicant’s submissions at their highest, his delay was said to be explained by the fact that he was not represented at the time the Registrar Review Application was filed, English is not his first language and he had attempted to contact the Court’s Registry for assistance on many occasions.
These are relevant factors for consideration in deciding whether to extend the time for filing.
Prejudice and the public interest
The First Respondent properly accepted that, other than cost, there is no particular prejudice to them. This is a relevant factor but not of itself determinative: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18] per Beach J.
There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds of review, which are considered further below.
And, as has been recognised in the established authorities, there is also a public interest in the finality of administrative decisions which in my view is a strong consideration in the present case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15]-[17].
Merit of the Substantive Application
The merit of the Substantive Application is also a relevant factor.
In a competent application for review of the exercise of a power by a registrar, the hearing proceeds de novo meaning the application before the Court is considered afresh and the Court considers for itself the potential merits of the judicial review application: r.21.04(1) of the Rules. Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court of Australia in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
..if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
The relevant background to the matter is, in summary:
(a)The Applicant is a citizen of India who applied for a student visa on 19 April 2021. That application nominated a migration agent who was then acting on behalf of the Applicant.
(b)On 12 August 2021, a delegate of the First Respondent requested that the Applicant provide a Form 80 – Personal particulars for assessment including character assessment within 90 days. No response or Form 80 was received.
(c)On 10 November 2021, the delegate again requested that the Applicant provide a Form 80 within 90 days. No response or Form 80 was received.
(d)On 17 August 2022, the delegate refused the Applicant’s application for a student visa because clause 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not satisfied, which required the Applicant to meet Public Interest Criterion 4001 (subject of the Form 80) and therefore the prescribed criterion in Regulation 2.03AA were not met.
(e)On 6 September 2022, the Applicant sought review of the delegate’s decision before the Administrative Appeals Tribunal. That application did not nominate a migration agent and instead included the Applicant’s personal contact information, including his email address: [email protected]. Attached to the application was a copy of the delegate’s decision.
(f)On 2 March 2023, the Administrative Appeals Tribunal invited the Applicant to provide a completed Form 80 by 16 March 2023 pursuant to s.359 of the Migration Act 1958 (Cth) (Act) and attached a blank copy of the form. That communication was sent to the Applicant’s nominated email address and included a warning that failure to do so would mean that the Applicant would lose his entitlement under the Act to appear before the Tribunal to give evidence and present arguments in his case.
(g)On 17 March 2023, the Administrative Appeals Tribunal notified the Applicant that he had lost his entitlement to appear before the Tribunal to give evidence and make arguments and because it is unable to invite the Applicant to a hearing, the Tribunal would make its decision based on whatever material were before it at the time of that decision. That communication was sent to the Applicant’s nominated email address and included a further invitation to provide a completed Form 80 and also invited him to provide an Indian Police Clearance or alternatively evidence that it is not reasonable to provide the Indian Police Clearance by 3 April 2023. No response or Form 80 was received.
(h)On 6 April 2023, the Administrative Appeals Tribunal decided to affirm the delegate’s decision not to grant the Applicant a student visa because clause 500.217 of Schedule 2 to the Regulations was not satisfied, which required the Applicant to meet Public Interest Criterion 4001 (subject of the Form 80) and therefore the prescribed criterion in Regulation 2.03AA was not satisfied.
By the Substantive Application, the Applicant raised the following 9 points under the heading “grounds of application”:
1. The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
2. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on its merits.
3. The Tribunal Member with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member.
4. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error. The merits of the case should have been taken into serious consideration in its totality and the substance.
5. The AAT has failed in its attempt to elicit from the applicant particulars of the applicant's case, and then, of necessity, recording such particulars in a coherent form and for the applicant's benefit,
6. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.
7. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry result in a decision being affected in some other way that manifests itself as jurisdictional error.
8. There is factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error.
9. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.
(sic.)
The First Respondent contended that the substantive application for judicial review could not succeed because it lacked reasonable prospects of successful prosecution and pressed its application for summary dismissal pursuant to r.13.13(a) of the Rules.
The grounds of the Substantive Application do not identify any reasonably arguable jurisdictional error in the Administrative Appeals Tribunal’s decision.
The Administrative Appeals Tribunal correctly identified the applicable primary criteria at clauses 500.211 to 500.218 of Schedule 2 to the Regulations which applied to the Applicant’s application for a student visa. Specifically, the Tribunal correctly identified that the Applicant had not met Public Interest Criterion 4001 as required for the purposes of clause 500.217. Indeed, by his submissions before the Court in these proceedings, the Applicant was understood to concede that he had not demonstrated this essential criterion. He said the reason for this was because he understood that all communications with and from the Tribunal were through his then migration agent and that requests for information were never intimated to the Applicant directly.
To the extent that the Applicant sought to allege a fraud or representative error on the part of his then migration agent, the Applicant’s argument in this respect can not succeed on what is before the Court. The documents that were before the Administrative Appeals Tribunal and are now collated in the Court Book reflect that the Applicant had not nominated a migration agent or other representative in his application for review made to the Tribunal. In that application, the Applicant included his own contact information including his email address used in these proceedings before the Court. It was that email address that the Tribunal used to communicate with the Applicant including to send the invitations to provide the Form 80. There is no evidence before the Court as to why that email address was not an appropriate means of communication with the Applicant or why it was not received. In those circumstances, there is no proper basis to assert a fraud or misrepresentation which lead to the Applicant’s failure to provide an essential document. Where the Applicant had the benefit of the delegate’s decision, which refused his student visa application on account of the information required by the Form 80, and then was afforded a lengthy period of some 7 months and 2 specific invitations to satisfy the Tribunal as to that matter, there is nothing illogical, irrational or unreasonable about the Tribunal’s decision.
Further, the absence of a response to the Administrative Appeals Tribunal’s first invitation to provide a Form 80 pursuant to s.359 of the Act (by which he was also notified of the consequence of failure to respond) effectively precluded it from inviting the Applicant to attend a hearing. The s.359 letter on its face met the statutory requirements and there was no unreasonableness or denial of natural justice in this respect: Singh v Minister for Immigration [2017] FCAFC 67 at [21] per North, Bromberg and Bromwich JJ, citing Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [25] per Jacobson, Gilmour and Foster JJ.
The contentions of bias and failure to make an obvious inquiry are insufficiently particularised as to have any prospect of success.
Absent satisfaction as to that essential criterion at clause 500.217, the Administrative Appeals Tribunal was obliged to affirm the delegate’s decision to refuse his application for a student visa.
Conclusion
That the Court’s Rules provide a short timeframe for filing applications of this nature reflects the intention that an application for review of a registrar’s decision be made promptly and without delay. Whether to extend the proscribed time for filing is at the broad discretion of the Court having regard to the particular circumstances of the case.
In weighing the relevant factors, even if there were a competent application before the Court, I would not be minded to extend the time for filing such that the time for application for review of the Judicial Registrar’s decision be extended to the date of lodgement (6 June 2024) or the date it was accepted for filing (12 June 2024) or a later date on which it were competently made.
Should there be an order as to costs?
The application was taken to be dismissed for incompetence but not before the Applicant had attended the first hearing, with a lawyer, and sought an adjournment and a further program for filing of materials. Since at least that first hearing, the Applicant was on notice of the likely cost consequences. Further, the First Respondent put the Applicant on notice of the (in)competence issue in advance of the second hearing and was put to further expense in preparing a second set of written submissions and attendance at a second hearing of the matter.
Part 29 of the Court’s Rules relates to proceedings for a remedy to be granted in the exercise of the Court’s jurisdiction under s.476 of the Act: r.29.02(1). It provides a broad discretion to order an unsuccessful party to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2 to the Rules: r.29.13(1). For a proceeding concluded at or before an interlocutory hearing, that is $4,189.38.
In all of the circumstances, it is appropriate to order that the Applicant pay the First Respondent’s costs in the amount of a proceeding concluded at or before an interlocutory hearing pursuant to item 2 of Division 1 of Part 2 of Schedule 2 to the Rules in the amount of $4,189.38 as was sought.
RESOLUTION
For the above reasons, the Applicant’s application is dismissed for incompetence with costs in the amount of $4,189.38.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 21 August 2024
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