Zhang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1043
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1043
File number(s): MLG 1516 of 2020 Judgment of: JUDGE CUTHBERTSON Date of judgment: 21 October 2024 Catchwords: MIGRATION – Employer Nomination Scheme (Subclass 186) visa – decision of Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – applicants’ judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision filed out of time – application for extension of time – whether there was an adequate explanation for delay – whether there was an arguable case of jurisdictional error – application to Court for adjournment to make further inquiries refused – whether judicial review proceedings are futile – extension of time application refused with costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 256
Migration Act 1958 (Cth) ss 65, 476, 477
Migration Regulations 1994 (Cth) reg 5.19; cll 186.311, 186.233, 187.233 of Sch 2
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21; Div 21.2
Cases cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Allison v Murphy [2021] FCAFC 232
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641
Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123; [2018] HCA 34
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigrationand Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
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 Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZJRV v Minister for Immigration & Citizenship [2008] FCA 298
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 672
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 10 September 2024 Date of hearing: 10 September 2024 Place: Melbourne First Applicant: In person and on behalf of the second and third applicants Counsel for the First Respondent: Mr A. Cunynghame Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1516 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YI-JIA ZHANG
First Applicant
HUI HUANG
Second Applicant
YIRU YVONNE ZHANG (BY THEIR LITIGATION GUARDIAN YI-JIA ZHANG)
Third Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
21 OCTOBER 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 review of a registrar’s decision filed on 15 August 2024 is amended so as to seek an extension of time pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The application for an extension of time is dismissed.
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 CUTHBERTSON
INTRODUCTION
On 8 May 2020, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the second respondent (Tribunal) dated 9 April 2020 (the JR application). The Tribunal’s decision affirmed decisions of the delegate of the first respondent (the Minister) not to grant the applicants Employer Nomination Scheme (Subclass 186) visas (visa) under s 65 of the Act.
On 5 July 2024, the Minister applied for an order for summary dismissal of the JR application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) (the dismissal application). In circumstances where the Tribunal found the first applicant (applicant) did not satisfy cl 186.233 of the Migration Regulations 1994 (Cth) (Regulations) because he was not the subject of an approved nomination, the Minister argues the applicants have no reasonable prospects of successfully prosecuting the proceeding and that the proceedings are futile. On 26 July 2024, a registrar of this Court made orders dismissing the JR application pursuant to r 13.13(a) of the Rules and that the first and second applicants pay the Minister’s costs (the Registrar’s decision): Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 672.
The applicants lodged an application for a review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act) and Division 21.2 of the Rules on 15 August 2024 (review application). The review application was ultimately accepted for filing on 21 August 2024.
The lodgement and acceptance for filing of the review application has occurred outside of the time limits prescribed by r 21.02(1) of the Rules. Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of this Court under s 254 may apply to the Court for review of that exercise of power within the time prescribed by the rules or within any further time allowed in accordance with the Rules. Rule 21.02(1) provides that for the purposes of s 256(1) of the FCFCOA Act, an application must be made within 7 days. Rule 21.02(2) provides that the Court may extend the time prescribed by r 21.02(1) on any terms that the Court thinks fit.
Given the Registrar’s decision is dated 26 July 2024, an application pursuant to s 456(1) of the FCFCOA Act was required to be made by the applicants by 2 August 2024. The applicants did not attempt to lodge the review application until 15 August 2024 and it was not accepted for filing until 21 August 2024. Accordingly, the review application was not “made” in accordance with the Court’s procedures until 19 days after the prescribed time. The applicants, therefore, require an extension of time.
The review application did not expressly seek an extension of time. The first applicant (the applicant), however, filed an affidavit in support of the review application which acknowledged the delay, providing the following explanation:
My application was delayed due to several factors, primarily related to the advice I sought from various barristers. Initially, securing appointments with these legal professionals was challenging, as many were unavailable at the times I needed. Additionally, I was misguided into believing that I needed to file an application with the Federal Court of Australia (FCA) rather than pursuing a review. Consequently, I began preparing the FCA application, which consumed a significant amount of time and resources, only to later realize that I had been following the wrong course of action. This confusion and delay ultimately set back my application process.
The applicant confirmed during the course of the hearing before me on 10 September 2024 that the applicants sought an extension of time in which to file their review application. The Minister did not oppose me taking the review application to have been amended so as to seek an extension of time pursuant to r 21.02(2) of the Rules, however submitted the application should be dismissed.
The parties made submissions in respect of both applications. The resolution of both turns on the merits of the JR application, and, more particularly, whether the proceedings are futile. The Minister says the proceedings are futile because the applicant was not the subject of an approved nomination at the time of the Tribunal’s decision and cannot meet the nomination requirements in the future. For the reasons set out below, I refuse the application for an extension of time for filing the review application.
BACKGROUND
There are three applicants to the JR application. The applicant was born in China but is a citizen of the Republic of South Africa (CB 2, 19). The second applicant is the applicant’s wife who is a citizen of China (CB 4, 18). The applicant and the second applicant were married on 25 July 2014 (CB 4, 25-30). The third applicant is their daughter who was born in Australia on 17 May 2017 (CB 39).
On 15 January 2017, the applicant applied for the visa (CB 1-36). The applicant’s nominated occupation was “Importer or Exporter”. The second applicant was included in the application as a migrating family member. A migration agent had assisted the applicants with the application process and was authorised to receive correspondence on their behalf (CB 32-36). At the time of the application, the applicant and his dependents held a Higher Education Sector (Subclass 573) visa which was valid until 29 September 2018 (CB 40).
On 22 June 2017, the applicant and the second applicant notified the then-named Department of Immigration and Border Protection of the birth of the third applicant (CB 38-39).
On 7 September 2017, the Department wrote to the applicant inviting him to comment on information relating to his visa application. The letter noted the nomination submitted to the Department by Lyrebird Australia Pty Ltd (sponsor) listing the applicant as their nominee had been refused. The letter noted this meant that the applicant’s visa application could not be approved. The applicant was given 28 days to respond in writing to the invitation to comment. The letter also advised the Department may make a decision on his application without requesting additional information. The first applicant was advised to provide the Department with all the information he felt was relevant (CB 40-43).
On 11 September 2017, the applicants’ migration agent wrote to the Department responding to the invitation to comment. The response noted the sponsor had submitted an application for review to the Tribunal on 8 September 2017. The letter further stated the “nominator has well prepared all the support documents to the Tribunal and has made sustainable improvement during the case processing period”. The letter requested that the Department defer the decision in respect of the visa application until the outcome of the sponsor’s application to the Tribunal (CB 44).
On 2 November 2017, a representative of the Department wrote to the applicants’ migration agent advising the Department was not able to defer it decision on the applicant’s visa application as requested. They were advised a decision would be made on the application shortly and that they would be notified accordingly (Affidavit of Amron dated 12 July 2024 (Rath affidavit), Annexure AR1, p. 4).
On 2 November 2017, the Department wrote to the applicant advising that his visa application had been refused by a delegate of the Minister on the basis that the criteria for the grant of the visa had not been satisfied (the delegate’s decision) (CB 52-64). In particular, the delegate was not satisfied that cl 186.233(3) of Sch 2 to the Regulations was met as the nomination lodged by the sponsor was refused by the Minister. The delegate also considered the criteria for the grant of an Employer Nomination Scheme (Subclass 186) visa in the Temporary Residence Transition and the Agreement streams but was also satisfied they were not met (CB 58-60). The delegate also found that the second and third applicants did not meet the criteria under cl 186.311 of Sch 2 to the Regulations (member of the family unit of a person who holds a Subclass 186 visa) (CB 63-64).
On 13 November 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 65-67). The applicants were represented by their migration agent (CB 66-67). The Tribunal wrote to the applicants via their migration agent on 14 November 2017, acknowledging receipt of their application. The letter advised that if they wished to provide material and written arguments for the Tribunal to consider, they should do so as soon as possible (CB 68-71).
The evidence filed on behalf of the Minister in these proceedings establishes the following timeline in respect of the sponsor’s nomination of the applicant (Rath affidavit, Annexure AR-2):
(a)The sponsor nominated the applicant on 15 January 2017;
(b)That nomination was refused by a delegate of the Minister on 22 August 2017;
(c)The sponsor filed an application with the Tribunal for review of the delegate’s decision refusing its nomination on 8 September 2017;
(d)The Tribunal affirmed the delegate’s decision to refuse the sponsor’s nomination on 11 December 2019;
(e)The sponsor did not seek judicial review of the Tribunal’s decision in respect of its nomination of the applicant.
On 12 March 2020, the Tribunal again wrote to the applicants via their migration agent inviting them to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review on 6 April 2020. The Tribunal requested the applicants provide all documents they intended to rely on to establish they met the criteria for the visa at least 7 days before the hearing date. They were advised to have regard to the delegate’s decision which should set out the reasons why they did not meet the criteria. The were also advised to consider any changes in their circumstances when providing documents and preparing for the hearing. Finally, they were informed the Tribunal may make a decision at the end of the hearing (CB 83-86).
On 25 March 2020, the Tribunal wrote to the applicants advising the hearing would now be conducted by telephone due to the COVID-19 pandemic. The letter repeated the information and requests for documents set out in its 12 March 2020 letter (CB 89-91).
The Tribunal hearing took place on 6 April 2020. The applicant appeared without his representative. The hearing record records the hearing commenced at 10.06 am and closed at 10.10 am (CB 93-96).
On 15 April 2020, the Tribunal wrote to the applicants notifying its decision to affirm the delegate’s decision (CB 97-99).
The Tribunal’s Decision
The Tribunal first set out the criteria for the grant of a Subclass 186 visa, noting that the primary criteria must be satisfied by at least one of the applicants. It also noted that applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative streams: the Temporary Residence Transition stream; the Direct Entry stream; or the Labour agreement stream. The Tribunal observed that the applicant was seeking the visa in the Direct Entry stream (CB 101, [3]-[4]).
The Tribunal identified the relevant issue in the applicants’ case was whether an applicant has an approved nominating sponsor and position in which to be engaged in employment. It observed that cl 186.233 of Sch 2 to the Regulations requires that a position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream located in regional Australia. In addition, the position must be one that was the subject of the declaration made as part of the current visa application. Further, where the associated nomination was made after 1 July 2017, it must identify the applicant in relation to the position (CB 101, [9]-[10]).
The Tribunal noted this criterion also required that (CB 101-102, [11]):
•the person who will employ the applicant is the person who made the nomination
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r. 1.13A and r. 1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal recorded the applicant’s evidence that he was aware there was no current nomination as the nomination application lodged by the sponsor had been refused by a delegate of the Minister. In addition, the Tribunal noted the applicant did not provide evidence demonstrating he was otherwise the subject of a nomination approved by the Minister under reg 5.19 as required by cl. 186.233 of Sch 2 to the Regulations. As there was no evidence before the Tribunal that the applicant was the subject of a nomination approved by the Minister under reg 5.19 as required by cl 186.233 of Sch 2 to the Regulations, the Tribunal concluded the applicant did not meet this criterion (CB 102, [12]-[16]).
The Tribunal consequently found that the second applicant did not satisfy the criteria for the grant of a visa pursuant to cl 186.311 as she was not a member of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for that visa (CB 102, [17]-[19]).
In respect of the third applicant, the Tribunal assessed her claims as a combined application with each of her parents, recognising, however, that it was required to consider her against both the primary and secondary criteria of the relevant visa. The Tribunal found that the third applicant did not satisfy the secondary criteria pursuant to cl 186.311 as neither of her parents was a holder of a Subclass 186 visa on the basis of satisfying the primary criteria (CB 102-104), [25]-[33]). Finally, the Tribunal found that the third applicant did not meet the primary criteria for the grant of the visa pursuant to cl 186.212 as there was no evidence that she held an offer of employment that has been considered in an application for approval (CB 104-105, [35]-[41]).
PROCEEDINGS IN THIS COURT
The JR application
The JR application was filed in this Court on 8 May 2020, within the time prescribed by s 477 of the Act. The applicants were then represented by a solicitor. It contained the following two grounds of review (Grounds of Review):
1. The Tribunal made a jurisdictional error by misconstruing cl 186.233(3) of Sch 2 to the Migration Regulations 1994 (Cth).
a. The Tribunal found at paragraph 12 of its decision that the nomination application lodged by Lyrebird Australia Pty Ltd in relation to the Applicant had been refused by a delegate of the Minister;
b. The Tribunal found at paragraphs 13 and 14 of its decision that there was no evidence provided by the Applicant or otherwise before the Tribunal that the Applicant was the subject of a nomination approved by the Minister as required by cl 186.233(3);
c. The Tribunal concluded, therefore, at paragraphs 15-16 of its decision that the Applicant did not meet cl 186.233;
d. However, the delegate’s refusal of the nomination was reviewable by the Tribunal under reg 4.02(4)(e) of the Regulations when read with s 338(9) of the Migration Act 1958 (Cth) (Act);
e. It followed that cl 186.233(3), while expressed in terms limited to approval by the Minister, extended under s 349(1) of the Act to approval by the Tribunal;
f. The Tribunal wrongly treated cl 186.233(3) as if it were confined to approval by the Minister;
g. There was evidence before the Tribunal that an application to the Tribunal for review of the refusal of the nomination had been made;
h. The Tribunal’s misconstruction of cl 186.233(3) was material because the nomination review was pending before the Tribunal and the Tribunal could have exercised its discretion under s 359 of the Act to get information as to the status of the nomination review and could have exercised its power under s 363(1)(b) of the Act to adjourn the Applicant’s proceeding until the nomination review was decided.
2. In the alternative to ground 1, the Tribunal made a jurisdictional error by failing to inquire into a particular fact.
a. The Tribunal may make a judicially reviewable error where it fails to make an obvious inquiry into a critical fact the existence of which could be easily ascertained: Wei v Ministerfor Immigration [2015] HCA 51; 257 CLR 22 at [49]-[50] per Nettle J;
b. The Tribunal found at paragraph 12 of its decision that the nomination application lodged by Lyrebird Australia Pty Ltd in relation to the Applicant had been refused by a delegate of the Minister;
c. The Tribunal found at paragraphs 13 and 14 of its decision that there was no evidence provided by the Applicant or otherwise before the Tribunal that the Applicant was the subject of a nomination approved by the Minister as required by cl 186.233(3);
d. The Tribunal concluded, therefore, at paragraphs 15-16 of its decision that the Applicant did not meet cl 186.233;
e. However, the delegate’s refusal of the nomination was reviewable by the Tribunal under reg 4.02(4)(e) of the Regulations when read with s 338(9) of the Migration Act 1958 (Cth) (Act);
f. It followed that cl 186.233(3), while expressed in terms limited to approval by the Minister, extended under s 349(1) of the Act to approval by the Tribunal;
g. In the event that contrary to Ground 1, this Honourable Court concludes that the Tribunal was mindful that cl 186.233(3) extended to approval by the Tribunal, there was evidence before the Tribunal that an application to the Tribunal for review of the refusal of the nomination had been made;
h. As a result, the Tribunal should have enquired whether the nomination review remained pending;
i. The Tribunal’s enquiry would have been material as it could, upon discovering that the nomination review remained pending, have decided to adjourn the Applicant’s proceeding under s 363(1)(b) of the Act until the nomination review was decided.
On 12 August 2020, orders were made appointing the first applicant as litigation guardian for the third applicant. Further orders were made in anticipation of the JR application being listed for final hearing. On 5 July 2024, the Minister filed an amended response to the JR application seeking an order for summary dismissal. The JR application was also listed for a directions hearing on 5 July 2024. Orders were made by the Registrar requiring the Minister to file and serve by 12 July 2024 written submissions and any further evidence in support of the summary dismissal application. The Minister filed an outline of submissions and the Rath affidavit in compliance with that order.
Orders were also made on 5 July 2024 by the Registrar affording the applicants an opportunity to file any amended application for judicial review, written submissions and any further evidence in opposition to the summary dismissal application by 24 July 2024. On 11 July 2024, the applicants’ solicitors served a notice of intention to withdraw as lawyer on each of the applicants. On 19 July 2024, the solicitors filed notices of withdrawal of lawyer in respect of each applicant with the Court. Neither the applicants nor their former solicitors filed any material in accordance with the 5 July 2024 orders.
On 9 September 2024, the Minister filed further submissions.
Review application
The review application contains six grounds of review and runs to 25 pages. They are better described as submissions given they set out at length a narrative regarding the conduct of the proceedings before the Registrar and the Tribunal, arguments and case law said to be relevant to the resolution of both the summary dismissal and JR applications.
Ground 1 asserts that the Registrar denied the applicants natural justice and procedural fairness by summarily dismissing their applications. It appears to assert at times that summary dismissal, per se, constitutes a denial of natural justice or procedural fairness. It sets out 12 pages of extracts from various cases and secondary sources.
Ground 2 asserts that that the Registrar “erred in interpreting the law and committed jurisdictional error in dismissing [the applicants’] case saying that no nominator and no merits in the case without paying interest in past years’ history, circumstance, sponsorship of nomination by the employer, by simply affirming the refusal of the …visa. The obligation of the Solicitor of the Department to give chance to me to attend the hearing under the honourable judge and Registrar of FCC did not give consideration to all the above circumstances while reviewing my case”. The particulars of this ground allege a misinterpretation of cl 186.233(3) on the part of the Registrar and a denial of a proper hearing in front of a judge.
Ground 3 asserts the Registrar and the Tribunal displayed disinterest in submissions and evidence. It is also alleged the Tribunal failed to adequately inquire (also described in the particulars as a duty to inquire) into the status of the sponsor’s review application concerning the nomination decision. A denial of procedural fairness is also alleged in this context.
Ground 4 asserts the Tribunal erred at law by not adopting a fair procedure, erroneously applying the counterfactual test and in not giving a real and meaningful hearing pursuant to s 360 of the Act. The particulars of this ground assert a failure to take into account the applicants’ circumstances. It further asserts the Tribunal ignored the reasons for the denial of the applicant’s visa which related to the nomination refusal decision. The particulars also assert the Department ignored relevant considerations and took into account irrelevant considerations and misconstrued cl 186.233. This is not further explained. It is also asserted the Registrar failed to properly apply the counterfactual test or adequately take into account the cumulative effect of the Tribunal’s errors.
Ground 5 alleges an inappropriate use of the summary dismissal power under r 13.13(a) of the Rules. Ground 6 alleges the Registrar incorrectly determined the JR application was futile on the basis that any remittal to the Tribunal would serve no practical purpose.
The review application seeks a range of orders. Relevantly, they include that the Registrar’s decision be set aside, the matter remitted to this Court for reconsideration before a different judge, and the JR application be “reinstated for full hearing and determination on the merits”.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. This requires consideration of the Minister’s dismissal application afresh; such a hearing is not concerned with considering the correctness of the Registrar’s decision: Allison v Murphy [2021] FCAFC 232 at [11], per Besanko, Colvin and Downes JJ. The Court is able to receive as evidence any affidavit or exhibit tendered before the Registrar, any transcript of the proceeding before the Registrar, and, with leave, further evidence: r 21.04(2). Consequently, it is not necessary for the applicants to establish error on the part of the Registrar. It is appropriate, however, to treat the grounds set out by the applicants in their review application as submissions relevant to the Minister’s dismissal application.
The review application was listed before me on 10 September 2024. The applicant appeared in person on behalf of all applicants. He was assisted by a Mandarin interpreter from time to time, but predominantly communicated with the Court in the English language. As the applicant was unrepresented, I explained the factors that were relevant to his extension of time application included the length and reasons for delay, whether there would be any prejudice to a party if an extension of time was granted and the merits of the underlying applications. I explained that a review of a registrar’s decision involved a fresh hearing where the Court looked at all of the information properly before it and decided for itself whether to exercise the discretion under r 13.13 of the Rules to dismiss the JR application. I explained this meant I had to decide for myself whether the applicants had no reasonable prospect of successfully prosecuting their application.
The following documents relevant to the applications were before the Court:
(a)the JR application;
(b)an affidavit of the applicant affirmed through an interpreter dated 10 May 2020 but apparently lodged with the Court on 8 May 2020 and accepted for filing on 11 May 2020;
(c)a response filed by the Minister on 19 May 2020;
(d)the Court Book filed by the Minister on 26 August 2020;
(e)an amended response filed by the Minister on 5 July 2024. The amendments include the dismissal application;
(f)the Rath affidavit;
(g)the Minister’s outline of submissions in support of the dismissal application dated 12 July 2024;
(h)an affidavit of service of Amron Rath, affirmed 15 July 2024 and filed on 16 July 2024 (affidavit of service);
(i)the review application;
(j)an affidavit of the applicant dated 15 August 2024 (applicant’s 2024 affidavit);
(k)the Minister’s outline of submissions dated 9 September 2024.
The Minister relied on the court book (tendered and marked R1), the Rath affidavit (tendered and marked R2), outlines of submissions filed on 12 July and 9 September 2024 and made further oral submissions during the hearing. The applicants relied on the applicant’s affidavit filed in support of the JR application (tendered and marked A1), the applicant’s 2024 affidavit (tendered and marked A2) and was invited to explain to the Court why he had not filed his application in time, what he considered the Tribunal had done wrong in affirming the delegate’s decision and why the JR application should not be summarily dismissed.
Adjournment application
The central issue in relation to the resolution of the applications before the Court is whether the applicant satisfied the criteria set out in cl 186.223 of the Regulations. During the course of the hearing, the applicant indicated he had tried without success to make inquiries to ascertain whether the sponsor had sought judicial review of the Tribunal’s decision in respect of its nomination application and if not, why not. It became apparent during the course of the hearing that the applicant was seeking an adjournment of these proceedings for a period of three to four months in order to continue those inquiries. He stated he had been unable to obtain a response from the migration agent used by the sponsor or the sponsor’s owner. He said the sponsor’s staff had changed since the Covid-19 pandemic. He stated he wanted to find out whether there is evidence suggesting the sponsor made the necessary application to a Court. It was pointed out no such application had been served on the Minister. He suggested an application may be in drawer somewhere. I asked why he had not made those inquiries earlier. He said he only found out in July 2024 when the Rath affidavit was filed that the Tribunal had affirmed the nomination refusal and that no application for review of that decision had been made. He conveyed to the Court his belief that the sponsor would have sought a review of the Tribunal’s decision.
The Minister opposed the application for an adjournment. It was submitted any suggestion that steps may have been taken by the sponsor to review the Tribunal’s decision were speculative. There would be nothing useful achieved by adjourning the matter. The Minister noted that r 21.03(2) of the Rules provides that a review of a registrar’s decision 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. It is expected that such matters are determined in a timely way.
I refused the application for the adjournment. The applicant’s reasons for seeking further time are perhaps best described as “grasping at straws”. There appeared to be no cogent reason to expect any inquiries would be productive of evidence capable of establishing he was the subject of an approved nomination at any relevant time or that there was any application in respect of the sponsor’s nomination application that was still pending. He was not able to explain why he would be able to locate the sponsor’s migration agent in the period of any adjournment when he had not been able to do so to date. It was also significant that the applicants have been legally represented in these proceedings until July this year. I was satisfied that if such inquiries had been appropriate, they could have already been made at some stage in the four years that had elapsed since the JR application was first filed.
EXTENSION OF TIME APPLICATION
Principles and relevant considerations
The Court has a broad discretion to grant an extension of time under r 21.02 of the Rules. In considering such applications, the Court will often have regard to matters such as the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding and the merits of the underlying application: see Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, at 348-349. Such considerations are not exhaustive but provide guidance and promote consistency in the approach to such applications: see, for example MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43].
Summary dismissal application
In determining the application for the extension of time and considering the merits of the underlying application, which in this case is the review application and the applicants’ resistance to the Minister’s application to summarily dismiss the JR application, it is necessary to consider the principles relating to the Court’s powers pursuant to s 143(2) of the FCFCOA Act and r 13.13(a) of the Rules.
Section 143(2) of the FCFCOA Act confers power on the Court to give judgment to a party defending a proceeding against another in relation to the whole or any part of a proceeding if satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding. Section 143(3) relevantly provides that for the purposes of this section, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Rule 13.13 of the Rules, provides as follows:
13.13 Disposal by summary dismissal
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; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The exercise of the powers to summarily dismiss or terminate proceedings must be attended with caution, whatever the basis: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24], per French CJ and Gummow J. “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way”: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], per Gaudron, McHugh, Gummow and Hayne JJ. The relevant assessment involves a judgment by the Court as to whether the party bringing the proceeding has a “reasonable” prospect of prosecuting it: Spencer at [52], per Hayne, Crennan, Kiefel and Bell JJ.
Noting that such assessments are made in the absence of a full and complete factual matrix and argument, the determination of such applications “requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at [46], per Reeves J; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7], per Perry J. The onus is on the party seeking summary dismissal to persuade the Court that the application has no reasonable prospect of succeeding: Cassimatis at [45].
CONSIDERATION
Length and explanation for delay
The review application was made 19 days after the time prescribed by r 21.02(1) of the Rules. This is not an excessive delay, however, I consider it is not insignificant in the context of the prescribed period of seven days.
The applicant’s explanation set out at [6] above is not supported by any other evidence. The applicant told me that he had conducted his own research online and was initially provided erroneous legal advice before he ascertained what course he should take to seek a review of the decision.
The Minister submitted that ignorance of time limits is not generally regarded as a satisfactory explanation for delay, even for a self-represented litigant: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [5]-[6], per Flick J; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38], per Foster J. It was submitted the applicants have the onus of making proper inquiries as to any applicable time limit and of taking any reasonable action to ascertain whether the relevant decision can be challenged: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]; SZSDA at [38]. The Minister submitted the applicant’s 2024 affidavit made bare assertions that the delay was due to being confused about the appeals process and attempting to obtain legal advice.
The applicant was not cross-examined on his affidavit. I accept he made attempts to seek legal advice. The evidence in the affidavit and the submissions made during the course of the hearing in this Court did not explain the timing of those attempts, when advice was given and how that advice was erroneous. On balance, I consider the explanation does not satisfactorily explain the delay. While this weighs against the granting of an extension of time, it is not the determinative factor. In my view, the key issue is whether there is merit in the underlying proceeding.
Prejudice
The Minister conceded there would be no specific prejudice to the Minister if the extension of time were granted. It was submitted recognition should be given to the finality of decision making. I take this to be a submission identifying prejudice to the administration of justice more generally where extensions of time are granted. The Minister submits, however, that the absence of prejudice is not a sufficient reason to grant an extension of time: Hunter Valley at p. 349.
I do not consider there to be any prejudice to the Minister warranting the denial of the application. I accept the Minister’s submission that the absence of such prejudice is not a sufficient reason of itself to grant an extension of time.
Merits of the underlying proceedings
This issue requires consideration of the applicants’ prospects of resisting the Minister’s dismissal application. This in turn requires consideration of the merits of the JR application.
Merits of JR application
The grounds of the JR application allege error on the part of the Tribunal in concluding the applicant was not the subject of an approved nomination without reference to the merits review brought by the sponsor against the refusal of its nomination application. Those grounds also assert that the sponsor’s application for merits review was pending, and the Tribunal made a jurisdictional error by failing to inquire as to the status of that proceeding and failing to adjourn the proceedings until the nomination review was decided.
The Tribunal made no express reference to the sponsor’s application for merits review in its statement of decision and reasons. Those reasons, however, record the applicant’s evidence was that he was aware there was no current nomination and did not provide evidence demonstrating he was the subject of a nomination. I note the hearing invitation was first sent to the applicants on 12 March 2020 (CB 83-86). The Tribunal affirmed the decision to refuse the sponsor’s nomination application on 11 December 2019 (Rath affidavit, Annexure AR-2).
The Minister submitted there was no merit to the grounds set out in the JR application. In respect of ground 1, first, it is submitted there is nothing to suggest the Tribunal wrongly treated cl 186.233(3) of the Regulations as being confined to approval by the Minister. Rather, the Tribunal had the applicant’s concession he was not the subject of an approved nomination. Its finding the applicant did not meet this criterion was open on the material before it. Secondly, there is nothing on the face of the decision to suggest the applicant requested the Tribunal adjourn the review for any reason and no affidavit material has been filed evidencing any such request. If such a request had been made, the Tribunal was not required to defer its decision indefinitely: Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617; Manna v Minister for Immigrationand Citizenship [2012] FMCA 28.
In respect of ground 2, the Minister submits the Tribunal was not required to inquire further into whether or not the applicant was the subject of an approved nomination in circumstances where the applicant conceded he was not. It was also submitted the Tribunal was not required to make the applicant’s case for him. Its finding that the applicant was not the subject of an approved nomination was open to it.
The Minister also submits that even if the Tribunal did err as alleged, any error was not material to the decision that was in fact made because there is no realistic possibility that the decision could have been different if the error had not occurred. As I have noted, as at the date of the Tribunal’s hearing on 6 April 2020 and its decision of 9 April 2020, the sponsor’s application for merits review of the refusal of its nomination application had been determined. The decision to refuse the nomination was affirmed. No application was made by the sponsor to seek judicial review of that decision. Even if the Tribunal had adjourned the proceedings or made inquiries regarding the status of the sponsor’s application for merits review, it could not have altered the decision.
In a similar vein, the Minister submitted that in circumstances where the applicant has still not provided any evidence before the Court that he was or is the subject of an approved nomination, even if there was an error in the Tribunal’s decision (which is not apparent or conceded), it would be immaterial as it could not have made any difference to the ultimate outcome of the review: Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3. This is because the applicant was not subject to an approved nomination and did not meet the requirements for the grant of the visa. Further, where the applicant cannot meet the nomination requirements with any different nomination not declared in the visa application, the Minister submitted it would be futile to remit the matter: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [88]-[89].
The applicant does not assert there was any specific request made to adjourn the Tribunal proceedings. He submits that he was not a party to the sponsor’s application and was not able to make his own inquiries of the Tribunal to ascertain the outcome of their application for review of the nomination refusal decision. The applicant is not aware of any evidence capable of establishing that he meets the criteria set out in cl 186.223 of the Regulations. In his review application, he concedes cl 186.223 requires that the primary visa applicant be the subject of an approved nomination. He also acknowledges that his visa was refused due to the denial of the sponsor’s nomination but asserts this is contrary to “clear guidance from regulation that minor errors can be disregarded while approving the nominations”: Ground 4, particular d of the review application. This argument appears to suggest the Tribunal ought to have looked behind the decisions made in respect of the sponsor’s nomination application.
The applicant asserts that the cumulation of errors are such that they had a material effect on outcome of the Tribunal’s review, noting that the “cumulative effect of errors can be significant, particularly in complex cases where the outcome hinges on the careful consideration of various interrelated factors”: Ground 4 of the review application. The applicant argues the merits of the JR application are arguable and that it is not necessary for the applicant to establish the application will succeed at hearing: Ground 4 of the review application.
The applicant argues the threshold for summary dismissal is high and that the Court must be convinced that the case is so devoid of merit it would be futile to allow it to proceed. In his case, the applicant argues the JR application warrants careful judicial consideration rather than outright dismissal. Summary dismissal would deny the applicants the opportunity to have their claims properly heard and adjudicated: Ground 5 of the review application.
As to the futility argument, the applicant argues that the cases do not establish a blanket rule that the finality of a sponsor’s nomination refusal renders any subsequent visa application review futile. Instead, those cases are directed to the specific circumstances of the case. It is necessary to consider the unique context and potential for different outcomes in this case: Ground 6 of the review application.
Discussion
The primary criteria for the visa includes cl 186.233 of Sch 2 to the Regulations which relevantly provides as follows:
186.233
(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 a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(10); and
(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.
The operation of the analogous cl 187.233 of Sch 2 to the Regulations was explained by Mortimer J (as her Honour then was) in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 as follows:
88.... In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. … The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates ... that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. … This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90.... The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
The position to which the applicant’s visa application related was one of Importer/Exporter nominated in an application for approval made by the sponsor. That nomination was not approved at the time of the Tribunal’s decision and therefore cl 186.233(3) was not satisfied. There is no evidence that the nomination has since been approved. There is no evidence capable of establishing that the nomination could be approved in the future. The Tribunal affirmed the decision of a delegate of the Minister to refuse the nomination decision on 11 December 2019. The evidence before the Court is that there was no application made by the sponsor for judicial review of that decision. Given the time that has elapsed since the Tribunal’s decision in respect of the sponsor’s nomination application, it would be fanciful to conclude there is any possibility of a judicial review application in respect of that decision being successfully brought in the future.
As was explained in Singh, it is not open for an employer to file a further nomination. It is also not open for a different employer to nominate the applicant for a position in respect of the visa application the subject of these proceedings.
If the matter were remitted to the Tribunal, it would again need to consider whether the applicant satisfied the requirements of cl 186.233 of Sch 2 to the Regulations. The relevant nomination was refused. The refusal decision remains undisturbed. As the applicant did not and cannot meet the requirements of cl 186.233, any error on the part of the Tribunal could not have had an impact on the decision the Tribunal was required to make. Remittal would result in only one possible outcome: affirmation of the decision to refuse the applicant’s visa. The Minister’s submission that any such remittal would be futile must be accepted.
The applicants’ JR application has no reasonable prospects of success. It follows that the Minister’s dismissal application would succeed on a de novo review if the applicant’s review application were allowed to proceed there being no real question of law or fact that should be decided at a hearing: see Cassimatis at [46].
Summary of extension of time factors
I am not satisfied it is appropriate to grant the applicants an extension of time to seek review of the Registrar’s decision as it is not reasonably arguable they will be able to successfully resist the Minister’s dismissal application.
CONCLUSION
The application for an extension of time pursuant to s 256(1) of the FCFCOA Act and r 21.02 of the Rules for the applicants to seek review of the Registrar’s decision is refused. Consequently, the orders made by the Registrar summarily dismissing the JR application pursuant to r 13.03(a) of the Rules and awarding costs in the sum of $4,189.38 must stand.
I will hear the parties as to the costs of the extension of time application.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 21 October 2024
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