Travelking v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 382
•18 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Travelking v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 382
File number(s): MLG 3912 of 2019 Judgment of: JUDGE MANSINI Date of judgment: 18 March 2025 Catchwords: MIGRATION - application for an extension of time for judicial review of a decision of the then Administrative Appeals Tribunal – where substantive application lodged 3 days out of time - where substantive application fundamentally lacks merit and therefore is futile – extension of time not in the interests of the administration of justice and application refused. Legislation: Migration Act 1958 (Cth) ss. 349, 352(4), 477(1), 477(2), 476 Cases cited: BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 272
EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration and Border Protection [2014] FCA 533
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: 51 Date of hearing: 11 March 2025 Place: Melbourne Solicitor for the Applicant: Crystal Migration Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3912 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TRAVELKING
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
18 MARCH 2025
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 name of the Second Respondent to the proceedings be amended to Administrative Review Tribunal.
3.The application for an extension of time filed on 11 November 2019 is refused.
4.The Applicant pay the First Respondent’s costs fixed in the amount 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
This decision concerns an application for an extension of the time within which an application for judicial review was required to be made to the Court.
The substantive application seeks judicial review of an administrative decision to refuse the nomination of a permanent appointment (temporary transitional residence). The application was first lodged 3 days outside of the statutory timeframe.
Not being satisfied that it is in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is refused. The reasons for this decision follow.
CONTEXT
Travelking, the Applicant, is the business name of a travel agency business operated by a Mr Akbar Jariwala as sole trader.
On 17 February 2017, the Applicant applied for approval of its nomination of a permanent appointment (temporary transitional residence) for a Ms Meena Rani (nominee) in the position of Travel Agency Manager (ANZCO code 142116).
On 1 August 2017, a delegate of the First Respondent refused to grant the nomination application.
On 2 October 2019, the Administrative Appeals Tribunal (as it then was) decided to affirm the delegate’s refusal of the nomination application and prepared written reasons for its decision (Tribunal’s decision).
APPLICATION BEFORE THE COURT
The Applicant lodged an application for judicial review of the Tribunal’s decision on 9 November 2019 which was not accepted for filing in accordance with the Court’s procedures until 11 November 2019. The originating application identified that an extension of time was required because the application was not made within 35 days of the date of the migration decision.
The originating application was accompanied by an 11-page affidavit of the Applicant, affirmed 8 November 2019. By that affidavit, the Applicant annexed the Tribunal’s decision and various nomination documents and deposed to a series of paragraphs which addressed the substantive application at law and may be characterised as submissions.
On 8 January 2020, a response was filed on behalf of the First Respondent which opposed the orders sought by the Applicant and sought costs if the application was ultimately dismissed.
Various procedural orders were then made.
On 18 September 2024, the Court made orders which invited the Applicant to file any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which they sought to rely by 21 October 2024. They did not do so by that time.
On 4 November 2024, the First Respondent filed an outline of submissions and a list of authorities.
The matter was listed for hearing before the Court on 11 November 2024 but, on application of the Applicant’s representative, was adjourned on that day. The Applicant’s representative (who, at that stage, had not filed any materials pursuant to the 18 September 2024 orders) confirmed they did not seek to amend the grounds of the substantive application as to jurisdictional error and was given further opportunity to file any further affidavit evidence and submissions in support of the application and on which they sought to rely at final hearing.
On 11 February 2025, the Applicant filed an affidavit of the owner and director of the Applicant, an outline of submissions and a list of authorities. By this affidavit, the Applicant deposed to circumstances relevant to the extension of time application and the substantive application.
On 25 February 2025, the First Respondent filed responsive submissions and confirmed continued reliance on the submissions of 4 November 2024.
The matter proceeded to hearing before the Court as presently constituted on 11 March 2025. The matter was heard concurrent with that of the nominee (in MLG4246/2019). The First Applicant and the nominee attended and were represented by a solicitor advocate. The First Respondent was also represented by a solicitor advocate.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Migration Act 1958 (Cth) (Act) allows the Court to grant an extension of the 35-day period within which an application must be made as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62]; SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (Foster J) [46]–[48].
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 in Katoa 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
Was the application filed late?
An application for a remedy under s.476 of the Act in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1).
It is not controversial that the present application was filed late.
Under s.477(1) of the Act, any application to this Court is to be filed within 35 days of the date of the Tribunal’s decision. The Tribunal’s decision under review was published on 2 October 2019. An application for judicial review in this Court was due to be filed by 6 November 2019. The application was not lodged until 9 November 2019. At the earliest, this application was made 3 days after the expiry of the statutory timeframe (noting it was not accepted for filing until 11 November 2019, being 2 days later).
I turn now to consider whether to grant an extension of the time for filing having regard to the established principles.
Duration and explanation
In the present case, it was accepted that the delay was a short period of 3 days.
Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Wigney J) at [38] (Tran). However, absence of a satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran at [38].
By the original application, the Applicant articulated the following 4 grounds for the grant of an extension of the time for filing:
1.The original decisions required extensive review prior to lodgement of the appeal process
2.The appellant formally engaged firm Crystal Migration on 4 November 2019
3.As part of the process it was necessary to prepare a detailed affidavit given the number of documents involved including 9 annexures
4.The applicant was notified of the decision on 7th October and therefore the number of days to lodge the application was incorrectly calculated, with the 35th day being Sunday 10 November
5.We are therefore seeking extension to submit this application
(sic.)
The Applicant’s unopposed evidence was that he did not receive a copy of the Tribunal’s decision until 7 October 2019, which was some 5 days after the publication of the decision record and the source of confusion about the time within which to file an appeal. He subsequently sought legal advice and the legal representative who remains on the record for the Applicant accepted the case on 4 November 2019.
Although it was understood to be submitted that the date for filing was miscalculated having regard to the date that the Applicant received a copy of the Tribunal’s decision, there was no explanation as to who was mistaken or when the mistake was discovered.
On the materials before the Court, the Applicant had engaged legal representation before the expiry of the 35-day period and the originating application identified that it was filed late and an extension of the time for filing was required. In my view, more was required for the contention of mistake to be made out.
It was also submitted that a detailed review of the materials was required, and a detailed affidavit was required, but there was no explanation as to the nature and dates of activity that occurred in the preparation of those materials. In any event, an originating application for judicial review does not require preparation of a detailed affidavit comprising mostly legal submission in support of the substantive case as occurred here because the Court’s processes allow opportunity for submissions and further evidence to be filed prior to hearing. Indeed, in the present case and as is not unusual in this jurisdiction, the Applicant sought an adjournment and did put on additional materials prior to final hearing - such that it could not be said that the involvement of legal representation and preparation of detailed materials at the outset particularly assisted in the efficient progress of the matter as was contended.
As the Applicant properly accepts, mere ignorance of statutory deadlines is not an acceptable or reasonable explanation or justification for delay of any kind.
On what is before the Court, the Applicant has not offered a reasonable explanation for the short delay in filing the application for judicial review. This weighs slightly against the exercise of the discretion to extend the time for filing in the present case.
Prejudice
The First Respondent properly did not contend to suffer any particular prejudice were an extension of the time for filing to be allowed.
The absence of prejudice is a factor that weighs neither for nor against the grant of an extension of the time for filing.
Merit of the substantive application
The time limitation at s.477(1) of the Act reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a migration decision before this Court. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the ground/s available to the applicant are reasonably arguable.
By the substantive application filed 11 November 2019, the grounds for judicial review were expressed as follows:
1.We submit that Home Affairs incorrectly assessed r.5.19(3) Criteria for approval of the nomination and (5) (i) – Criteria for Temporary Residence Transition Stream – refer to accompanying affidavit
2.We that AAT incorrectly assessed r.5.19(3) Criteria for approval of the nomination and (5) (i) – Criteria for Temporary Residence Transition Stream – refer to accompanying affidavit
3.The delegate of Home Affairs erred in the decision that the applicant does not satisfy r.5.19(4)(d)(i) of the Regulations on the basis the initial refusal of the application made by Home Affairs was made under the incorrect stream (Direct Entry, Rather than Temporary Residence Transition Stream). The application should have been assessed under r 5.19(3)(a)(iii). Please refer to paragraph 20 of the accompanying affidavit
(sic.)
Having declined the opportunity to particularise the grounds by amended pleadings, the arguments were developed by way of written submissions and affidavit evidence as identified above.
To the extent that the first and third grounds seek to challenge the delegate’s decision, the application asks the Court to act beyond its jurisdiction and cannot succeed.
In developing the second ground, the Applicant contended that the Tribunal’s decision was based on identification of wrong issues, wrong questions asked, ignorance of relevant material and/or reliance on irrelevant material because the Tribunal: identified that the temporary transitional residence nomination stream was correct but then proceeded to determine the matter afresh with regard to the review material before it including the delegate’s decision (decided under incorrect stream, being the direct entry nomination stream) rather than ceding the Applicant’s request to remit the matter to the delegate for redetermination. The Applicant pointed to the decisions in BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 272 (Lucev J) (BJP16) and EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826 (Lucev J) (EDO19) in support.
It was not contentious in these proceedings that the original application was made under the temporary transitional residence nomination stream.
Throughout its decision, the Tribunal incorrectly cited the sub-paragraphs of the Regulations when referring to the different streams and requirements but it is accepted in these proceedings that nothing turns on this, as the name of each stream was allocated a numeral which aligns with the requisite roman numeral numbering in the Regulations. Beyond the numeric confusion it was clear, by the words used, that in conducting its review the Tribunal accepted the Applicant’s contention and found that the delegate had erred in applying the wrong stream (the direct entry nomination stream): at [5]. The Tribunal then found that the correct stream was the temporary transitional residence nomination stream as referenced in the application for employer nomination for a permanent appointment record of response on the Department’s file: also at [5] of the Tribunal’s decision. Importantly the Tribunal’s decision, when read as a whole, discloses that it then proceeded to apply the criteria relevant to the correct (temporary transitional residence nomination) stream.
It is not correct to say that the Tribunal erred in proceeding on the delegate’s reasons. The Tribunal determined the matter afresh and was required to do so with regard to the referred materials provided to it by the Secretary of the Department: s.352(4) of the Act. The Tribunal clearly understood the error made by the delegate and adopted the correct criteria in its review. Further, whilst the Court did not have the benefit of the transcript, it was accepted in these proceedings that the face of the decision record disclosed that: the Tribunal invited the Applicant to provide current information relevant to the criteria for approval. The Tribunal’s decision also states that the Tribunal raised a number of concerns with the Applicant at hearing before it which were directed at whether the nominee was in fact carrying out the tasks of the nominated occupation during her employment with the Applicant as a s.457 visa holder; the Applicant gave responses to those concerns at hearing; and the nominee gave oral evidence at hearing: at [6]-[7] and [32]-[35]. The Applicant also filed a series of documents evidencing the nominee’s employment and additional documents after the conclusion of the hearing which the Tribunal noted were considered: at [6] and [36].
That the Tribunal did not remit the matter back to the delegate is not in error. The Tribunal was afforded the discretion to exercise a series of powers pursuant to s.349 of the Act including to affirm the delegate’s decision on review (in force at the relevant times). Consistent with the authorities that the Court was taken to in BJP16 and EDO19, the Tribunal was empowered to cure the identified defect in the delegate’s decision, which I have found above that it did. In its final paragraph, the Tribunal described that it had decided to affirm the delegate’s decision under review to refuse the nomination. The detailed foregoing reasons disclose that it did so albeit on a different basis to that of the delegate.
Not being persuaded that there is any jurisdictional error established by the grounds of review, it is concluded that the substantive application is not reasonably arguable and would not succeed on the merits.
This is a factor that weighs strongly against the allowance of further time in which the application for judicial review was to be made to the Court.
CONCLUSION
The application in this case was filed 3 days outside the statutory time limitation. The Court may only grant an extension of the time within which the application was to be made if such extension is in the interests of the administration of justice.
Weighing all of the considerations above, and in particular that the substantive judicial review application has no reasonably arguable prospects of success, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the time within which to apply for judicial review of the Tribunal’s decision of 2 October 2019.
Accordingly, the application to extend the time for making the judicial review application filed 9 November 2019 is refused. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $4,189.38 which is the scale amount for interlocutory hearing at Schedule 2 of the Regulations.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 18 March 2025
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