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[2024] FCA 537
Federal Court of Australia
2024-05-21
Downes J
Original judgment source is linked above.
DOWNES J: 1 This is an application for an extension of time to seek leave to appeal and for leave to appeal from the orders made by the primary judge of the then Federal Circuit Court of Australia on 16 August 2021: Aggarwal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1891 (J). 2 Before the primary judge, the applicants sought judicial review of a decision of the second respondent (the Tribunal) dated 24 November 2017, which affirmed an earlier decision of a delegate of the first respondent (the Minister) dated 26 February 2016 to refuse to grant the applicants a Regional Employer Nomination (Subclass 187) visa. 3 On 15 September 2014, the applicants applied for the visa on the basis of a proposed nomination by Guru Mahima Pty Ltd (the sponsor) for the first applicant in the position of a retail manager. The second and third applicants are the first applicant's wife and daughter respectively. 4 A primary criterion for the grant of the visa is that the Minister has approved the nomination, see Migration Regulations 1994 (Cth), Sch 2, cl 187.233(3). On 20 January 2015, the nomination was refused. 5 On 26 February 2016, a delegate of the Minister refused to grant the visa because the application did not meet cl 187.233 as the first applicant was not the subject of an approved nomination. As a result, the delegate also refused to grant visas to the second and third applicants. 6 The applicants applied to the Tribunal for review of the delegate's decision and the Tribunal affirmed the delegate's decision on 24 November 2017. 7 At the hearing of today's application, the first applicant submitted that he had supplied approximately 200 pages of material to the Tribunal during the course of the hearing before it and, because the decision of the Tribunal was handed down so quickly after the hearing, he held a concern that his documents had not been reviewed. 8 However, Ms Sangha (who appeared for the Minister) submitted that the Tribunal had referred to the documents in its decision (which is the case) and that, in any event, this did not affect the merits of the proposed appeal having regard to the fact that the nomination had not been approved by the Minister, which she submitted was fatal to the prospects of success of any appeal in any event. I will return to that issue shortly. 9 The applicants sought judicial review of the Tribunal's decision in the Federal Circuit Court. On 16 August 2021, a show cause hearing was conducted, and ex tempore reasons for judgment were delivered. The primary judge dismissed the applicants' application brought under s 476 of the Migration Act 1958 (Cth) with costs, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). This dismissal was on the basis that the application did not raise an arguable case for the relief claimed. Written reasons were made available on 27 September 2021. 10 As the judgment was an interlocutory one, any application for leave to appeal was required to be filed on or before 30 August 2021. Instead, it was filed by the applicants on 8 September 2021, nine days out of time. 11 As the legal principles which are applicable to an application for leave to appeal out of time are well established, it is appropriate to deliver short form reasons.
The applicants' contentions 12 By their application, the applicants rely on the following grounds for their application for extension of time: (1) "That I have not got a fair chance to explained my application and evidence. The delegates haven't gone through with documents." (2) "That After that I was miss lead by my [migration] agent, I got the information that Agent closed his business I haven't any update regarding my application." (3) "That due to long waiting time from reply from the respondent in Federal Circuit Court my circumstances changed."
Explanation for delay 13 The application refers to the accompanying affidavit of the first applicant dated 8 September 2021 as setting out the grounds of the extension application. However, nothing in that affidavit refers to or explains the delay in bringing an application for leave to appeal, and the applicants did not file written submissions in support of their application which contain any explanation. 14 At the hearing, the applicants provided written submissions which became MFI-1. Those submissions also do not refer to or explain the delay in filing the application. 15 Although the applicants were self-represented litigants and the primary judge's reasons were not available until after the time for appeal had passed, the applicants could have commenced proceedings despite not having received written reasons. In fact, that is what occurred. Once written reasons were published, the applicants did not seek leave to file amended grounds or an amended draft notice of appeal. 16 For these reasons, the applicants have not demonstrated or provided an acceptable explanation for their delay in filing the application.
Prejudice 17 The Minister accepts that he would suffer minimal prejudice from the delay, but that he should not be prejudiced by being required to defend an unmeritorious appeal if the extension is granted.
Merits of the appeal 18 As to the merits of the proposed appeal, the first applicant's affidavit contains 18 points, which I have construed as intended to be 18 proposed grounds of appeal, which are presented in narrative format. The application for an extension of time and leave to appeal also contains three grounds under the headings "Grounds of Application", which are referred to above, and which repeat some of the same complaints as set out in the affidavit. 19 For the following reasons, there is insufficient merit in the proposed grounds such that it is not in the interests of the administration of justice to extend time. In particular, they fail to identify any error by the primary judge and none is otherwise apparent. 20 Grounds 1 to 8 provide the background on the applicants' visa application process, including the applicants' involvement with a migration agent and the initial nomination and visa refusal which took place in 2014 and 2015. The relevance of these grounds to any proposed appeal is not apparent. 21 Grounds 9 to 16 refer to the proceedings before the Tribunal and include complaints such as "I was not listened [to] and my documents not verified by the delegate" (being a reference to the Tribunal Member); "[The Tribunal Member] did not consider my application as she considered for other[s] that is why I felt she was considering my previous application and history" and "she gave no consideration to the evidences provided to her". In particular, at ground 12, the applicants contend that the visa application refusal letter, which the first applicant received, contained the incorrect date for the lodgement of his nomination application which reflects "complete negligence towards my application" (emphasis omitted). However, each of these grounds refer to alleged errors by the Tribunal, without any proper basis, and do not address an error in the reasoning of the primary judge. 22 The only apparent complaint against the primary judge is contained in grounds 17 and 18, being that the judicial review application before the primary judge was lodged in 2017 but not heard until 2021. The contention that a delay in listing the application for judicial review for hearing amounts to an error by the primary judge is misguided. As such, proposed grounds 17 and 18 have no prospect of success on any appeal. 23 An overarching reason to refuse the application is that, following any appeal, remittal to the Tribunal would be futile. The requirement in cl 187.233 of Schedule 2 of the Migration Regulations can only be satisfied by the approval of the original nomination that accompanied the visa application and cannot be assessed against a new nomination application subsequently lodged by a different employer: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [82] - [90] (Mortimer J, as her Honour then was, with whom Jagot and Bromberg JJ agreed). 24 It follows that the refusal of the nomination application made by the sponsor was and is fatal to the applicants' proposed appeal. In this regard, I also refer to Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017 (Griffiths J) at [9(d)].
Disposition 25 For these reasons the following orders will be made: (1) The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs. (2) The application be dismissed. (3) The first and second applicants pay the first respondent's costs to be agreed or, failing agreement, to be taxed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.
Aggarwal
Minister for Immigration, Citizenship and Multicultural Affairs