Khanji v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-05-21|Before: Downes J

The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
The application be dismissed.
The applicant pay the first respondent's costs to be agreed or, failing agreement, to be taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DOWNES J: 1 This is an application for leave to appeal out of time from an interlocutory decision of the Federal Circuit Court of Australia dismissing an application for judicial review from a decision of the Administrative Appeals Tribunal (the Tribunal). 2 The applicant is a citizen of India who applied for an Employer Nomination (Subclass 186) visa on 18 November 2018 on the basis of a proposed sponsorship by Tyk Group Pty Ltd (sponsor) in the nominated position of a transport company manager. 3 A primary criterion for the grant of a visa is that the Minister has approved the nomination: Migration Regulations 1994 (Cth) Sch 2, cl 186.233. However, on 5 July 2019, the nomination lodged by the sponsor was refused. 4 On 4 September 2019, a delegate of the first respondent (the Minister) refused the application on the basis that the applicant did not meet the criteria under clause 186.233(3) because he was not the subject of an approved nomination. 5 The applicant applied to the Tribunal for review. Following a hearing, the Tribunal affirmed the delegate's decision on 26 June 2020. 6 The applicant sought judicial review of the Tribunal's decision in the then Federal Circuit Court. On 16 August 2021, the primary judge dismissed the applicant's application brought under s 476 of the Migration Act 1958 (Cth) with costs pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). This was on the basis that the application did not raise an arguable case for the relief claimed. Written reasons were made available on 8 October 2021: Khanji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2073 (J). 7 Any application for leave to appeal was required to be filed by the applicant on or before 30 August 2021. Instead, it was filed by the applicant on 8 September 2021, being nine days out of time. 8 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 applicant's material 9 The application states that there are three grounds of application, which I will treat as being proposed grounds of appeal (as did the Minister). These grounds are as follows: (1) the order of Judge Street dated 16 August 2021 is infected by error of law and was made contrary to the evidence before him; (2) his Honour misunderstood the applicant's situation and dismissed his application without taking into account the grounds listed in his application; and (3) as the applicant has not yet received the judgment, he reserves his right to receive particulars at a later stage. 10 The accompanying affidavit of the applicant states as follows: 1. I am the applicant. 2. I appeared before His Honour via video link on 16 August 2021. His Honour dismissed my application under r44.12 and now I wish to seek a further review with the Federal Court of Australia as I understand that the Order of His Honour Judge Street is infected with error of law and I believe that I have an arguable case.

Explanation for delay 11 A delay of nine days is not a significant delay; however, the applicant has provided no explanation for the delay. 12 During the hearing before me, the applicant submitted that he did not receive the judgment. However, I note that it appears to have been sent to him on 8 October 2021 and, in any event, it was provided to him after he filed his application for leave to appeal to this Court. 13 Although the applicant was a self-represented litigant and the primary judge's written reasons were not available until after the time for applying for leave to appeal had passed, the applicant filed his application. Once written reasons were provided, or at least published, the applicant did not seek to amend the grounds relied upon by him.

Prejudice 14 The Minister accepts that he would suffer minimal prejudice from the delay but submits that he should not be prejudiced by being required to defend an unmeritorious appeal if the extension of time and leave to appeal is granted.

Merits of the appeal 15 The applicant was ordered by a Registrar of this Court to file and serve a draft notice of appeal by 17 November 2021 but no such document has been filed. 16 In any event, for the following reasons, there is insufficient merit in the proposed grounds of appeal, such that it is not in the interests of the administration of justice to grant an extension of time. That is because, by his proposed grounds, the applicant has failed to identify any error in the approach and judgment of the primary judge and none is otherwise apparent. 17 Proposed ground 1 makes an unparticularised assertion that the primary judge's judgment was infected by error of law and made contrary to the evidence. However, neither the error of law nor the evidence referred to is identified. 18 Proposed ground 2 contends that the primary judge misunderstood the applicant's situation and did not take into account the applicant's grounds of appeal. The applicant provides no further details as to how the primary judge misunderstood or failed to consider the applicant's grounds. 19 In any event, proposed grounds 1 and 2 lack merit because the primary judge expressly considered each of the applicant's four grounds of review raised before him but found that none of these grounds identified an arguable case for relief claimed. In particular, the primary judge considered the applicant's oral submissions but found (correctly, with respect) that the court could not engage in impermissible merits review or determine the matter on compassionate grounds: J [8]-[9]. I am in the same position, such that although the applicant sought to rely on documents dated 2016 and 2022 before me and sought to advance a case for a visa to be granted to him, that is not my role. At this stage, I am required to determine whether a viable proposed ground of appeal has been raised by the applicant, and the merits of any such proposed ground. 20 Proposed ground 3 does not allege any error by the primary judge because it merely states that the applicant reserved his rights to provide particulars at a later stage. The primary judge's written reasons have been available since 8 October 2021 (over two years ago) and no amended application or draft notice of appeal particularising the applicant's proposed grounds have been filed. 21 A further reason to refuse the application is on the basis that any appeal would be futile. That is because the requirement in clause 186.233 can only be satisfied by the approval of the original nomination that accompanied the visa application: see 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). I note that Singh concerns cl 187.233, and not cl 186.233. However, these clauses are in almost identical language and merely concern a different subclass of the same visa, such that the comments by the Full Court are apposite to this case. It follows that the refusal of the nomination application made by the sponsor was, and is, fatal to the applicant's case: see also Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017 at [9(d)] (Griffiths J).

Disposition 22 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 applicant pay the first respondent's costs to be agreed or, failing agreement, to be taxed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.

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