Timilsina v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 632
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Timilsina v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 632
File number: MLG 741 of 2023 Judgment of: JUDGE BINGHAM Date of judgment: 18 July 2024 Catchwords: MIGRATION LAW – application for review of registrar’s decision – where registrar summarily dismissed the judicial review application – refusal of Temporary Skill Shortage (Class GK) (Subclass 482) – sponsor company withdrew nomination application and is now deregistered – futility of judicial review application
MIGRATION LAW – extension of time of 47 days required – considerable delay for an application for review – no justification for delay – no reasonable prospects of success – extension of time not warranted – application for review dismissed with costs
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 254
Migration Act 1958 (Cth) s 477(2)
Migration Regulations 1994 (Cth) cl 482.212
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2, 13, 15 and 21
Cases cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZZGC v Minister for Immigration & Border Protection [2015] FCA 842
Newman & Tate [2020] FamCA 1114
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
Pham v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 971
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
Spencer v The Commonwealth (2010) 241 CLR 118
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submissions: 8 July 2024 Date of hearing: 8 July 2024 Place: Melbourne The First Applicant: Appearing in person The Second Applicant: No appearance Solicitor for the Respondents: Minter Ellison ORDERS
MLG 741 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJESH TIMILSINA
First Applicant
ANU KC
Second Applicant
AND: MINSITER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time for the filing of the Application for Review of a Registrar’s decision, lodged on 17 June 2024, is refused and the Application for Review be otherwise dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $2,450.00.
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 BINGHAM:
This is an application to review a decision of a Registrar of this Court filed by the First Applicant on 17 June 2024 (Application for Review). On 24 April 2024 the Registrar made an Order pursuant to rule 13.13(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules) summarily dismissing an application for judicial review made by the Applicants. The Application for Review is opposed by the First Respondent (Minister).
I have decided to refuse to extend the time for filing the Application for Review and otherwise dismiss the Application for Review for the reasons set out below.
BACKGROUND
The Applicants are citizens of Nepal. The Applicants applied for a Temporary Skill Shortage (Class GK) (Subclass 482) (Visa) on 24 July 2018. The Delegate of the Minister (Delegate) decided not to grant the Visa on 13 November 2018 (Delegate’s Decision). The decision not to grant the Visa was affirmed by the Administrative Appeals Tribunal (Tribunal) on 31 March 2023 (Tribunal’s Decision).
The background to the matter is set out in the Reasons for Judgment of the Registrar dated 26 April 2024 at paragraphs [5] to [10]. I adopt those paragraphs. I have summarised the background facts as set out in the judgment of the Registrar below:
(a)The criteria for the Visa included cl 482.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) which provides, among other things, that the nomination and the sponsor must be approved under the Migration Act 1958 (Cth) (Migration Act).
(b)The nominator for the Applicants’ Visa application was Egg Unlimited Pty Ltd (Sponsor).
(c)The Sponsor’s nomination application was refused by a delegate of the Minister.
(d)On 13 November 2018 the Delegate refused to grant the Visa because the First Applicant was not the subject of an approved nomination.
(e)On 20 November 2018 the Applicants applied to the Tribunal to review the Delegate’s Decision with respect to the Visa.
(f)The Sponsor applied to the Tribunal for review of the Minister’s decision with respect to the nomination but later withdrew that application.
(g)On 16 March 2023 the Tribunal invited the Applicants to, in writing, by 30 March 2024, comment on or respond to the circumstances outlined in correspondence to them namely:
(i)That the consequence of the withdrawal of the review application by the Sponsor was that the nominated position was not approved and the criteria under cl 482.212(1) of the Regulations had not been met; and
(ii)If this information was accepted and relied upon by the Tribunal, the Tribunal would accordingly be required to affirm the decision of the Minister not to grant the Visa.
(h)The correspondence from the Tribunal brought to the attention of the Applicants that if there was a failure to respond or to comment that the Applicants would lose the entitlement to appear before the Tribunal to give evidence or present arguments. The text of the correspondence is extracted in full in the Reasons for Judgment of the Registrar at paragraph [7].
(i)The Applicants did not respond to or make comments on the content of the Tribunal correspondence of 16 March 2023. Consequently, the Tribunal cancelled the scheduled hearing of 9 May 2023[1].
(j)On 31 March 2023 the Tribunal affirmed the Minister’s decision not to grant the Visa on the basis that the cl 482.212(1) (a) criteria in the Regulations was not met.
[1] Court Book 156-157, Tribunal’s Decision, [4]-[7].
The First Applicant filed the Application for Judicial Review in this Court on 27 April 2023 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the First Applicant that annexed the written reasons for the Tribunal’s Decision. The Minister filed a Response on 17 July 2023 seeking summary dismissal of the Initiating Application.
On 24 April 2024 the Registrar summarily dismissed the Initiating Application pursuant to rule 13.13(1)(a) of the GFL Rules.
On 17 June 2024 the Applicant lodged the Application for Review, which was not accepted by the Court for filing until 28 June 2024. No affidavit was filed by the Applicants in support of the Application for Review.
On 5 July 2024 the Minister filed a response to the Application for Review seeking dismissal of the Application for Review together with costs. The Minister opposed an order granting an extension of time.
PRINCIPLES TO BE APPLIED
Review Power
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:
256 Review of power exercised by delegate
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
A review application is not an appeal. In Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39], the New South Wales Supreme Court described a de novo hearing or review application as follows:
[…]
(b)It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review.
[…]
(e)Although on review, the court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26].
The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47].
In Newman & Tate [2020] FamCA 1114, Deputy Chief Justice McClelland considered the nature of a review of a Registrar’s decision at paragraphs [9] to [11] and came to the following conclusion at paragraph [12]:
12.Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71 [43].
Summary dismissal
Registrar’s have delegated power to summarily dismiss a proceeding. Orders can be made for summary dismissal under rule 13.13(a) of the GFL Rules or under s 143(2) of the FCFCOA Act. The Court must establish that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przybylowski). The Court is not required to be satisfied that the applicant is bound to fail. The party submitting the application for summary dismissal has the onus of proving that the applicant has no reasonable prospects of success.
Given orders are made at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at 575–576, [57]:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
The Court must undertake “a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial”: Spencer; Przybylowski; Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
Extension of time
Rule 21.02 of the GFL Rules provides that an application for review of a Registrar’s decision must be made within seven days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless it is impractical to do so, within 14 days after the date of filing[2].
[2] r 21.03 GFL Rules.
The Registrar’s Orders were made on 24 April 2024. The last day of the prescribed time period for the Applicants to file the Application for Review was 1 May 2024. The Application for Review was lodged on 17 June 2024 at 5:58pm. Applying rule 2.05(4) of the GFL Rules, the date for filing of the Application for Review is 18 June 2024, as a result the Applicant requires an extension of time of 47 days.
The Court has a broad discretion under r 21.02 of the GFL Rules to extend time for the filing of an application for review. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’, ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (DHX17) at [76].
APPLICATION FOR REVIEW
In the Application for Review the Applicants sought a review of the Orders of the Registrar dated 24 April 2024. The relief sought by the Applicants was expressed in the following manner:
Details of orders sought to be reviewed
I am seeking to review the following orders:
1.On 24 April 2024 my application to the Federal Circuit Court was dismissed. Annexed and marked ‘RTQ’ is a copy of the Orders and Annexed.
2.I believe there are jurisdictional errors in the said decision.
3.The grounds of my appeal are detailed in the application.
Orders sought
1.That the whole of the orders/judgment/decision of the Federal Circuit Court of Australia made on 24 April 2024 be quashed and/or set aside.
2.The matter is remitted back to the Administrative Appeals Tribunal for a re-hearing of the Appellant’s original application for review to the Tribunal with a direction that the Appellant satisfies the requirements of the Migration Regulations and the Migration Act definition required for a Temporary Skill Shortage (Class GK) visas.
3.The respondents pay the costs of the Appellant in the Administrative Appeals Tribunal, the Federal Circuit Court of Australia, and this Court.
4.Such further or other relief that this Honourable Court may deem fit and just and expedient in the circumstances.
The grounds of review in the Initiating Application were:
1.I was not given fair opportunity
2.I can provide more documents if needed
3.There was a judicial error in my AAT decision
4. I want to apply federal circuit court on basis of judicial error made by AAT
On 3 July 2024 I made Orders listing the Application for Review for an Interlocutory Hearing on 9 July 2024 and for the filing of a response from the Minister, and an outline of submissions from each party. No outline of submissions was filed by the Applicants. The Minister filed a Response and outline of submissions as ordered.
On 9 July 2024 the Application for Review came before me (Hearing). The First Applicant appeared on his own behalf. There was no appearance by the Second Applicant. The Minister was represented by Ms Lay, a lawyer with Minter Ellison.
At the Hearing, there was no formal application to extend time made by the First Applicant because the Minister opposed an extension of time to file the application for review in both the response and submissions. I asked the First Applicant whether he could tell me why he had not filed the Application for Review within 7 days of the Registrar’s decision. He responded that he had filed the Application for Review within 35 days of the Registrar’s decision and that he had an email that advised him that he was to file within 28 days or 35 days. He could not recall the contents of the email with any precision. I asked him if he could provide me with a copy of the email. He could not. The First Applicant later conceded that he was referring to an email he had received with respect to making the Initiating Application, not the Application for Review. The First Applicant could not explain why he filed the Application for Review late.
I then asked the First Applicant to explain his case to me. I took him to each of the grounds in his Initiating Application and asked him what mistake he said the Tribunal had made. The First Applicant submitted with respect to ground 1, that he had been on the same visa for some time and that he wanted the visa extended. With respect to grounds 2 and 3 he submitted that the Tribunal made a mistake because he was not a cook in a fast food restaurant, but rather a cook in an industrial kitchen making meals from the start. The First Applicant was unable to point to a mistake made by the Tribunal with respect to the fourth ground but stated that he wanted his application heard by the Court.
The Minister relied upon submissions filed on 22 March 2024 and 8 July 2024 respectively. The Minister tendered the Court Book and the Affidavit of Aneesha Satyendra sworn or affirmed and filed on 22 March 2024.
The Minister pressed the dismissal of the Application for Review on the basis that the Application for Review was not properly before the Court. It was submitted that the First Applicant did not provide an excuse as to why the Application for Review was not filed in accordance with the GFL Rules. The Minister also submitted that the Initiating Application had no prospects of success. The Visa sought by the Applicant was tied to the success of the nominator’s approval. The nominator, being the Sponsor, withdrew its application for review before the Tribunal. Consequently, the Delegate’s Decision remained extant. Further, the Applicants did not respond or comment on the adverse event, namely the withdrawal of the review application by the Sponsor when invited by the Tribunal to do so. The right to a hearing before the Tribunal was lost. It was further submitted that the Sponsor company was deregistered in 2022 so even if a jurisdictional error was identified, an order sending the matter back to the Tribunal would be otiose. The Minister sought costs against the Applicants in the amount of $2,450.00.
The First Applicant was given an opportunity to reply to the Minister’s submissions. The reply was limited to the concession that the email that he had received was with respect to the Initiating Application and not the Application for Review.
CONSIDERATION
The delay
The First Applicant was unable to explain to me why he had filed the Application for Review out of time. An argument of misunderstanding the time for filing the Application for Review based on the earlier email correspondence with respect to the Initiating Application requiring filing within 35 days of the Tribunal’s Decision could not be sustained in circumstances where the Application for Review was filed 47 days late (55 days on the Minister’s submission), not 35 days. The lack of explanation for the delay weighs against the granting of an extension of time.
I find that the First Applicant offered no plausible explanation for the delay.
Prejudice
The Minister submitted that there would be no prejudice if an extension of time was granted. This alone does not justify the granting of an extension of time.
Reasonable prospects of success
Importantly, I am to consider whether the Initiating Application is “sufficiently arguable” to warrant the granting of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review. In DHX17, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], the Court observed at [68], that:
68[…] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]
(Emphasis added)
A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [18].
The question before the Court is whether any of the grounds are ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’, or have ‘reasonable prospects of success’.
I agree with the Minister’s submissions. No jurisdictional error can be identified in the Tribunal’s Decision. The Initiating Application is futile: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [85] to [90] per Mortimer J; Pham v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 971 at [6], [34] to [36].The Visa is of a type that requires the Applicant to be the subject of an approved nomination. There is no approved nomination. The requirement for the Visa cannot be met by the First Applicant. Further the nominator, being the Sponsor, was deregistered on 7 July 2022.
The Applicant’s Initiating Application has no reasonable prospects of success.
CONCLUSION
I refuse to extend the time for filing the Application for Review and otherwise dismiss the Application for Review.
The Minister sought costs of $2,450.00 which is less than fixed in the scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister’s costs in the sum of $2,450.00.
Orders will be made accordingly.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 18 July 2024
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