Zhong v Minister for Home Affairs
[2024] FedCFamC2G 337
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhong v Minister for Home Affairs [2024] FedCFamC2G 337
File number(s): BRG 201 of 2021 Judgment of: JUDGE EGAN Date of judgment: 27 March 2024 Catchwords: MIGRATION LAW – where the grant of an approval of a nomination application was a precondition to the grant of a visa to the first applicant where there was no approval – where there was therefore no utility in granting an extension of time for the filing of the application for review – where Tribunal affirmed the decision of the delegate – no jurisdictional error established – application dismissed. Legislation: Cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) Cases cited: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 Division: Division 2 General Federal Law Number of paragraphs: 16 Date of last submission/s: 27 March 2024 Date of hearing: 27 March 2024 Place: Brisbane First Applicant: Yi Zhong appearing on their own behalf Second Applicant: Kam Lau appearing on their own behalf Solicitor for the First Respondent: F. Lay, Minter Ellison ORDERS
BRG 201 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YI ZHONG
First Applicant
KAM LAU
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
27 MARCH 2024
IT IS ORDERED THAT:
1.The Application for Extension of Time to file the Application for Review be dismissed.
2.The First Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $4189.00.
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).
EX TEMPORE REASONS
JUDGE EGAN
Introduction
When this matter came before the Court today, the first applicant, Ms Zhong, appeared by Microsoft Teams. She had been given leave to so appear by the Court, consequent upon her having sent emails to Judge’s Chambers claiming that she was unwell, and would not be able to appear in Court in person.
The email correspondence sent by the applicant did not attach any report from a medical practitioner confirming her alleged claim that she was unwell. Various copy documents in the nature of medication prescriptions were sent to Chambers, but in the absence of a medical opinion explaining what the applicant’s condition actually was, the Court put no weight upon any of those documents so forwarded to Chambers.
An interpreter who was NAATI accredited appeared in court today. He has, to the extent required, assisted the applicants in relation to the identification of the relevant material upon which the applicants seek to rely upon at today’s hearing.
During the course of the hearing today, the applicant has appeared to be entirely well enough, and hearty enough, to speak fluently not only on her behalf, but also on behalf of the second applicant in this matter. There was no indication that she was unwell, or unable to participate meaningfully in these proceedings. She, to the extent that she may have felt in need, was able to obtain the assistance of the interpreter who was present in court.
After argument, there was no demonstrated basis upon which an adjournment should be granted, and the application for the adjournment was accordingly refused.
On 14 May 2021, the applicants filed an application for review of a decision of a delegate of the Minister made on 21 May 2018.
The reason why the delegate refused the first applicant’s visa application was that the first applicant did not satisfy subclause 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which was a pre-condition to the grant to her of a visa. It was the case that, on 17 April 2018, the nomination application lodged by Advanced Denture Clinic Gympie Pty Ltd had been refused by the delegate of the Minister, and therefore the first applicant’s position was that her visa application was not the subject of an approved nomination.
There was evidence before the Court that there was still no approved nomination application filed on behalf of the nominated company at the time of hearing, and that there had been no appeal from the refusal filed on behalf of the nominator company. No application for review had been filed by that company in respect of its nomination refusal.
On 7 April 2021, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision and reasons of the delegate not to grant to the first applicant the visa which she had applied for. Following upon the decision of the Tribunal, an application for review of the Tribunal’s decision was filed two days out of time. Accordingly, the application before the Court at the present time is firstly for an extension of time to file the current Application for Review out of time.
The Court does not consider that there is any utility in the application for extension of time being granted, because there are no reasonable prospects of success in the application for review which is currently before the Court. That was particularly so in circumstances where there was no appeal on foot in respect of the refusal of the nomination application.
In Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123, it was found by the Court that there was no relevant approved nomination application, and further that the appellants in that case were not parties to any review of the nomination decision. On that basis, it was found that there was no basis upon which the appellants could commence or continue review proceedings in relation to the nomination decision.
The first applicant has not satisfied a mandatory precondition for the grant to the first applicant of a visa – namely that there was, in respect of the first applicant, an approved nomination application. In those circumstances, the current application for review is doomed to fail and has no prospects of success. As a consequence, the second applicant’s application was without merit.
Accordingly, the application for an extension of time is dismissed.
No jurisdictional error has been established on the part of the Administrative Appeals Tribunal in its decision handed down on 7 April 2021.
The Application for Review, and all of its grounds, are without merit, and it is accordingly dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 17 April 2024
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