Federal Court of Australia

Malla v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1024

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 1 April 2020 be dismissed.

2.    The applicants pay the first respondent’s costs of the proceeding, to be agreed or assessed.

3.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Ex tempore

(Revised from transcript)

O’CALLAGHAN J:

1    When this matter was called on for hearing this morning at 9.30am, there was no appearance by or on behalf of the first applicant, or any of the applicants. Following discussions between me and counsel for the respondent Minister, Ms L Mills, I stood the matter down until 10.15am and requested that, in the meantime, her instructing solicitor endeavour to make email contact with the first applicant.

2    When the matter resumed at 10.15am, I was told that Ms Mills’ instructing solicitor had sent an email to the first applicant, indicating that if no appearance was made by 10.15am, the Minister would seek an order dismissing the application.

3    The hearing of the proceeding was originally listed in October 2021. At the request of the first applicant, and with the consent of the Minister, the hearing of this application, which is an application for an extension of time to appeal a decision of the then Federal Circuit Court of Australia, was adjourned until today.

4    I was informed that the reason for the request for the adjournment was to enable the first applicant to return home to India for some period of time. I was also informed by Ms Mills that since that time, that is, since October 2021, her instructing solicitors, Clayton Utz, have had no contact from any of the applicants or anyone on their behalf, nor have the applicants responded to any communications from Clayton Utz, including in relation to communications concerning the preparation of the hearing scheduled today.

5    Rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth) provides that if an applicant is absent when a proceeding is called on for trial, another party may apply to the court for an order that the application be dismissed. The Minister made such an application.

6    In my view, it is appropriate in this case to order that the application for extension of time and leave to appeal filed by the applicants on 1 April 2020 be dismissed, with costs.

7    Such an order is appropriate in this case because the application is doomed to fail. It is doomed to fail for these reasons.

8    The application is one to review a decision of the primary judge in the Federal Circuit Court dismissing the applicants’ application for judicial review of a decision of the Administrative Appeals Tribunal (the tribunal) affirming the decision of the Minister to refuse to grant the applicants’ Skilled (Provisional) (Class VC, subclass 485) visas.

9    The applicants’ application filed on 1 April 2020 was accompanied by a draft notice of appeal, in which the only ground of appeal was that the tribunal did not provide procedural fairness, and that “[f]urther grounds will be submitted after consideration of the reasons” of the primary judge. Since that date, the applicants have not provided any particularised grounds, nor have they filed written submissions, as contemplated by orders of the court made last year.

10    I have read the reasons for judgment of the learned primary judge in Malla v Minister for Immigration [2020] FCCA 470. Those reasons deal with each of the grounds of appeal contended for below, where the applicants were self-represented. The reasons of the primary judge are, if I may say so with respect, careful and detailed.

11    The inexorable problem that the applicants face here is that one of the requirements for the grant of the subclass 485 visa, which is contained in cl 485.213 of Schedule 2 to the Migration Regulations 1994 (Cth), is that the visa application must be accompanied by evidence that the first applicant had applied for an Australian Federal Police check during the 12 months immediately before the date it – that is, the application – was made. In this case, in her application, the first applicant answered “No” in response to the question of whether she had applied for the Australian Federal Police check in the preceding 12 months.

12    Although the result in this case, and other cases like it, may, on one view, be regarded as arguably unfair, where there is no suggestion that a relevant applicant has a criminal record, the simple fact of the matter is that the tribunal, under the regulations, had no power or discretion which it could exercise once that question was answered “No”. As Tracey J, with whom Charlesworth and Derrington JJ agreed, explained in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 with respect to the similarly worded cl 487.216, at [15]-[18]:

The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in [Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562] permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

The test is objective. Clause 485.223 [which was the relevant clause in Khan and which Tracey J described as “similar” to cl 487.216] is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

Responsibility for obtaining the evidence is that of the visa applicant, not the Minister. The Regulations give primacy to that consideration over personal considerations that might explain that the reason why a person has been unwilling or unable to obtain evidence of the assessment application is benign. The present case is on point. The appellant’s subjective reason for applying for the visa on the day that he did was that his student visa would expire on that day, and the expiry of the visa may have had the consequence that he could not apply for a new substantive visa without first leaving Australia. Nothing in the text, context or purpose of cl 485.223 contemplates considerations of that kind to give effect to the inquiry as to whether, objectively, the application was accompanied by the evidence. Ground 1 has not been made out.

13    Those reasons apply squarely in this case. As Tracey J said in part of the passages set out above, a visa application is either accompanied by the necessary evidence or it is not. In this case, as in Khan, it was not.

14    Each of the grounds contended for below before the learned primary judge flies in the face of that insuperable difficulty, and each ground was thus correctly dismissed by the learned primary judge for the reasons she gave.

15    It follows that this is an appropriate case to exercise a discretion under r 30.21 of the Federal Court Rules to dismiss the application in circumstances where the applicants have failed to appear.

16    Accordingly, the court orders that:

(1)    The application for extension of time and leave to appeal filed on 1 April 2020 be dismissed.

(2)    The applicants pay the first respondent’s costs of the proceeding, to be agreed or assessed.

Associate:

Dated:    1 September 2022