Federal Court of Australia

Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be dismissed.

2.    Costs be reserved.

3.    By 4pm on 23 February 2023 the first respondent file and serve any application for an order under s 486F of the Migration Act 1958 (Cth), supporting affidavit and submissions.

4.    By 4pm on 9 March 2023 Vangu Kitoko file and serve any affidavit in response, together with submissions.

5.    By 4pm on 23 March 2023 the first respondent file and serve any submissions in reply.

6.    No submissions may exceed five (5) pages.

7.    The question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    Jean-Pierre Tukala Tukala (Mr Tukala) and Veronique Vela (Ms Vela) (together, the applicants) are aggrieved by a decision of the Administrative Appeals Tribunal (Tribunal) which dismissed an application by Mr Tukala for review of a decision of the Minister’s delegate to refuse to grant a visa to their adult son, Joshua, who was born in the Democratic Republic of the Congo but at all relevant times lived in South Africa. The Tribunal dismissed the application for want of jurisdiction. The applicants applied to the court below for judicial review but that application was also unsuccessful. This is an application for an extension of time to appeal. For the following reasons, the application is without merit and should be dismissed.

Background

2    Mr Tukala is a Congolese national. Ms Vela entered Australia in 2004 and acquired Australian citizenship in 2007. On 5 May 2016 Mr Tukala was granted a Partner (Temporary) (Class UK) Partner (Subclass 820) visa on the basis of his marriage to Ms Vela.

3    On 3 July 2017 Joshua applied from overseas for an Extended Eligibility (Class TK) (Subclass 445) visa (Extended Eligibility visa). He was 21 at the time. Ms Vela was his sponsor. It appears that the application was made in Pretoria, South Africa, and received by the Australian High Commission in Nairobi, Kenya. The purpose of the Extended Eligibility visa is to enable a dependent child to stay in Australia temporarily while a parent on a temporary visa applies for a permanent visa. Mr Tukala was identified on the visa application form as the parent holding a temporary visa.

4    The power to grant a visa to a non-citizen vests in the responsible Minister but the power may be delegated (Migration Act 1958 (Cth) (Migration Act), ss 65, 496), as it was in the present case. Provided that the relevant criteria are established to the satisfaction of the Minister (or the Minister’s delegate as the case may be) and the requisite fee is paid, the Minister is bound to grant the visa and, if not, the Minister is bound to refuse to grant it: Migration Act, s 65. A decision of the Minister or his delegate to refuse to grant a visa can be reviewed on its merits by the Tribunal but decisions of the Minister or his delegate are not amenable to appeal: Migration Act, s 474.

5    On 12 February 2020 a delegate of the Minister forwarded to Ms Vela a letter, addressed to Joshua, notifying him that his application had been refused on the basis that he was not satisfied Joshua met the relevant criteria. The delegate found that, because Mr Tukala had been granted a Subclass 801 visa on 28 August 2019, he no longer held a Subclass 820 visa at the time of the decision and that, consequently, he was no longer a “visa holding parent” within the meaning of cl 445.111 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations) which, under cl 445.221, is a criterion for the grant of the Extended Eligibility visa. The applicants are understandably upset about the period of time it took for a decision to be made.

6    On 21 April 2020 Mr Tukala applied to the Tribunal for review of the delegate’s decision. Part D of the application form stipulated that “[t]he review applicant must be the person or organisation that is entitled to apply for review of the decision”. Mr Tukala indicated on the form that he was applying for review in his capacity as “the sponsor or nominator” of the visa applicant (Joshua). Ms Vela was not named as an applicant for review. Vangu Kitoko, who appears to have completed the form, was nominated as Mr Tukala’s representative. Mr Kitoko claims to have some connection to the African Diversity Council of Australia and to be the father of one of Ms Vela’s children. As far as I am aware, he was not a registered migration agent.

7    It is common ground that the last day of the prescribed period in which review of the delegate’s decision could be sought was 22 April 2020. Between 21 and 22 April 2020 correspondence passed between Mr Kitoko and the Tribunal in relation to Mr Kitoko’s request for a reduction of the applicable fee and technical difficulties he claimed to have encountered in making the payment.

8    On 27 April 2020 Mr Tukala, through Mr Kitoko, was sent an invitation to comment on the validity of the review application in circumstances where no fee had been received by the end of the prescribed period. Mr Kitoko responded on 8 May 2020, claiming that he had been unable to pay the fee due to a network failure, other issues with communications from the Tribunal and an inability to access the registry, which was closed due to the COVID-19 pandemic.

9    On 18 August 2020 the Tribunal again wrote to Mr Tukala, this time inviting him to comment on the following matter by 1 September 2020:

The person who is entitled to apply to us in relation to this decision is the sponsor or nominator. You are not such a person, and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.

10    Mr Kitoko replied on 23 August 2020, attaching what was said to be a response from Mr Tukala, asserting that it was “clearly noted in the original application lodged at the Australian High Commission in Pretoria” that he (Mr Tukala) was the person who sponsored or supported the visa application and was “entitled to do so under the Australian Immigration law”.

11    As I mentioned earlier, the Tribunal dismissed the review application. The decision is dated 3 September 2020.

12    On 6 September 2020 Mr Kitoko emailed to the Tribunal Registry an application by Ms Vela to be made a party to the proceeding, not because she was the sponsor or nominator but because she was a parent of, and “financial provider” to, the visa applicant. The following day the Tribunal sent an email to Mr Tukala, through Mr Kitoko, of the Tribunal’s decision, attaching a copy of the decision.

The legislative framework

13    Before going any further it is convenient to refer to the relevant legislation.

14    At the time the visa application was made, Sch 2 cl 445.211 of the Migration Regulations relevantly provided that the criteria to be satisfied at the time the visa application was made were that the applicant is both “a dependent child of a visa-holding parent” and is “sponsored by the nominator or sponsor of the visa-holding parent”. “Visa-holding parent” was defined in cl 445.111 as a person who held a visa falling within certain subclasses, including a Subclass 820 (Partner) visa.

15    Schedule 2 cl 445.411 stipulated that, “[i]f the application is made outside Australia, the applicant must be outside Australia when the visa is granted”.

16    Section 338(5) of the Migration Act provided that:

A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

(a)    the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b)    the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i)    an Australian citizen; or

(ii)    a company that operates in the migration zone; or

(iii)    a partnership that operates in the migration zone; or

(iv)    the holder of a permanent visa; or

(v)    a New Zealand citizen who holds a special category visa.

(Original emphasis.)

17    “Migration zone” was defined in s 5 of the Migration Act to mean the area consisting of the States, Territories, Australian resource installations and Australian sea installations.

18    At the time of the Tribunal’s decision, s 347 of the Migration Act relevantly provided that:

Application for review of Part 5-reviewable decisions

(1)    An application for review of a Part 5-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

…

(ii)    if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; …

and

(c)    be accompanied by the prescribed fee (if any).

(2)     An application for review may only be made by:

…

(b)    if the Part 5-reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned[.]

19    If an application does not satisfy the terms of s 347, the Tribunal has no jurisdiction to entertain it: Khan v Minister for Immigration and Citizenship [2009] FCA 443 at [17] (Besanko J).

20    The time within which an application for review could be made was prescribed by reg 4.10(1)(c), which relevantly provided:

4.10 Time for lodgment of applications with Tribunal (Act, s 347)

(1)    For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:

    …

(c)    if the Part 5-reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received.

21    Section 368(2) of the Migration Act provides that a decision on a review (other than an oral decision) is taken to have been made by the making of the written statement setting out the decision, the reasons for it and various other matters prescribed by s 368(1) (the decision record) “on the day, and at the time, the written statement is made”.

22    Section 368(2A) provides that:

The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

23    Section 368A(1)(a) requires the Tribunal to give a review applicant a copy of the decision record within 14 days after the day on which the decision is taken to have been made.

The Tribunal decision

24    The Tribunal concluded at [9] of the decision record that it had no jurisdiction to review the delegate’s decision because the decision was “covered by” s 338(5) of the Act; s 347(2) provides that an application for review may only be made by the sponsor or nominator; and the application in the present case was made by Mr Tukala (who was neither the sponsor or nominator of Joshua’s application).

25    The Tribunal had regard to Mr Tukala’s letter in which he claimed to have “sponsored or supported” the application but observed at [7]–[8]:

7.    On the basis of information in the delegate’s decision record and confirmed in Departmental ISCE records, the visa applicant was sponsored for the Extended Eligibility (Temporary) (Class TK) visa application made on 3 July 2017 by Ms Veronique Vela who was the sponsor of the visa holding parent of the visa applicant. Jean Pierre Tukala Tukala is indicated in the visa application as the visa holding parent of the visa applicant.

8.    The Tribunal notes that the above information is contrary to the applicant’s assertion that he was the sponsor of the visa application. However cl.445.211(b) specifically requires the visa applicant to be sponsored by the nominator or sponsor of the visa holding parent which would appear to be consistent with the information held by the Department that Ms Vela was the sponsor.

26    While the Tribunal also referred to the requirement in s 347(1)(c) that the application be accompanied by the prescribed fee unless a determination had been made that the fee should be reduced on the basis of financial hardship, in view of its finding that it lacked jurisdiction because the review application had not been made by the sponsor, it determined (at [10]) that it was unnecessary to consider whether the fee requirement had been met.

The Circuit Court proceeding

27    The judicial review application was brought by Mr Tukala alone. The footer to the application shows that it was prepared by Mr Kitoko. Mr Tukala sought an order that the decision of the Tribunal be quashed and that a writ of mandamus issue, directed to the Tribunal requiring it to determine his application according to law.

28    Two grounds were pleaded.

29    By ground 1 Mr Tukala contended that the Tribunal erred by refusing or ignoring Ms Vela’s application to be added as a party to the review application, relying on s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Section 30(1A) provides that:

Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

30    Mr Tukala claimed that the Tribunal was required to “look at” her application because it was made on 4 September 2020, two days before the Tribunal emailed the decision, and there was no evidence that the decision was made on 3 September 2020, which is the date recorded twice on the front page of the decision record.

31    By ground 2 Mr Tukala contended that the Tribunal erred by mistakenly considering that the review application was made “in contravention [of] section 347(1)(c) and r. 4.13(4)”. The particulars alleged that the applicants had been unable to pay the prescribed fee for their review application because of various failures on the part of the Tribunal.

32    The primary judge accepted the Minister’s submissions that each of the grounds enjoyed no reasonable prospects of success.

The reasons of the primary judge

33    With respect to ground 1, the primary judge observed that s 30(1A) of the AAT Act did not apply to proceedings in the Migration and Refugee Division of the Tribunal, pointing to s 24Z of that Act, which expressly excludes proceedings in that Division from the operation of Pt IV of the AAT Act in which s 30(1A) appears. Her Honour noted that in written submissions reliance was also placed on s 486B(7) of the Migration Act, which permits the joinder of certain persons as parties in migration proceedings, but observed that this provision only applies to proceedings in specified courts (the High Court, this Court and the Federal Circuit Court), not the Tribunal.

34    Her Honour also referred to a submission made on behalf of the applicants that the Tribunal had conspired with the Minister’s Department in “manufacturing” the date of its decision so as to “intentionally deprive the applicants of their rights to review”, relying on the delay between the date of the decision and the notification of it. That conclusion was said to be supported by a lack of procedural fairness in the delegate’s approach, including delay in the making of his decision, which was said to amount to an abuse of process. On this question her Honour held:

The evidence before the Court falls well short of supporting a finding that any such conspiracy occurred. The Tribunal’s decision was communicated within the period of 14 days allowed after a decision has been made: s 368A of the Act. The fact that notification occurred on Monday, 7 September 2020 after the decision was made on Thursday, 3 September 2020 does not establish any conspiracy between the Department and the Tribunal. Nor is this established by the applicants’ complaints regarding the Delegate’s decision. It was confirmed at the hearing that review was not sought of that decision. This Court would not have had jurisdiction to undertake such a review: s 476(2) of the Act.

35    In any event, however, her Honour observed that “the issue of validity in this case did not turn on when the Tribunal’s decision was made”. She explained:

Even if the Tribunal’s decision had not been made on 6 September 2020, the time in which the second applicant could have validly applied to the Tribunal for review of the Delegate’s decision had expired. To be valid, any application to the Tribunal by the second applicant as sponsor needed to be made by 22 April 2020: reg 4.10(1)(c) of the Regulations. It follows that the applicants were not deprived of any review rights by the date of the Tribunal’s decision. The second applicant’s review rights had already expired by that time.

36    With respect to ground 2, the primary judge noted that the Tribunal’s decision that it lacked jurisdiction did not turn on any failure to pay the prescribed fee within time. Her Honour accepted the Minister’s submission that it was unnecessary for the Tribunal to determine that question when it had found that it lacked jurisdiction for another reason, namely that the application had not been made in accordance with s 347(2)(b) of the Migration Act. She went on to observe that:

The applicants have not demonstrated how the Tribunal’s jurisdiction could have been enlivened, even if they had paid the prescribed fee on time. The Tribunal still would have lacked jurisdiction because no application had been made for review in time by the second applicant as sponsor.

37    Accordingly, her Honour dismissed the application and ordered that Mr Kitoko pay the Minister’s costs pursuant to s 486F of the Migration Act. Mr Kitoko has applied for an extension of time for leave to appeal that order. His application is the subject of a separate judgment.

The present application

38    Any notice of appeal had to be filed within 28 days after the date judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth) (Rules or FCR), r 36.03. That time ran out on 29 July 2022. The application for extension of time was filed six days later, on 4 August 2022.

39    The Court has a discretion to extend the time before or after it expires and irrespective of whether an application for an extension was made before the time expired: FCR r 1.39.

40    As I observed in SZUTZ v Minister for Immigration and Border Protection [2015] FCA 186 at [9], the Court’s discretion to grant an extension of time is a broad one, unencumbered by any express limitations, but that does not mean that the Court is completely at large to do as it pleases.

41    Like any power conferred by the Rules, the power to extend time to appeal must be exercised judicially and, in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), in the way that best promotes the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: FCA Act, s 37M(3). The factors the Court may take into account are not specified. Generally speaking, the Court has regard to the length of the delay; the explanation, if any, for the delay; whether the other party or parties would be prejudiced if an extension of time were granted; and, above all, the merits of the proposed appeal. The overriding consideration is the interests of justice: BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [42] (Colvin J).

42    Where the delay is not lengthy and has been satisfactorily explained and where there is no prejudice to the other party or parties, the Court will usually grant an extension provided that the applicant can demonstrate that the prospective appeal has at least ostensible merit. Consistent with the Court’s obligation under s 37M(3), leave will not be granted where the appeal would have no reasonable prospects of success: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] (Finn J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ). In making an assessment of the merits, it is well-established that the Court need not go into great detail but is to carry out the assessment “in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [9]; BQQ15 at [33].

43    The application in the present case was supported by an affidavit sworn on 3 August 2022 by Mr Kitoko. Mr Kitoko described himself as the “unrepresented family relative of the applicants” who was assisting them in the day-to-day conduct of the matter. The affidavit discloses that, instead of filing a notice of appeal, on 29 July 2022 — the day the time expired to file a notice of appeal — Mr Kitoko e-lodged an “Originating application for review of a migration decision” in the Federal Circuit Court. Unsurprisingly, the application was rejected for filing. On 3 August 2022 Mr Kitoko was informed of the reason, advised of the documents he needed to file, and told where he could find the relevant forms. Mr Kitoko followed the advice and promptly filed an application for extension of time, a draft notice of appeal and his supporting affidavit.

44    The applicants relied on the written submissions prepared and filed by Mr Kitoko. I refused to grant leave to Mr Kitoko to represent the applicants at the hearing.

45    I am satisfied on the basis of this evidence that the delay is short and that an acceptable explanation has been provided. The Minister does not claim to be prejudiced by the delay. But what of the merits?

46    The draft notice of appeal is 32 pages long. As the Minister pointed out in his written submissions, it is not in proper form no doubt because it was prepared by Mr Kitoko who is not a lawyer. It largely consists of submissions and repeats much of what appears in Mr Kitoko’s affidavit. That in itself would not be fatal.

47    The draft notice of appeal proceeds on the false premise that to succeed an appellant must establish that the primary judge fell into jurisdictional error, rather than appealable error. Five grounds are identified. Lengthy, often irrelevant submissions were advanced in support of them. Those submissions, like all the documents in this case and in the court below, were prepared by Mr Kitoko. Mr Kitoko appears to have no appreciation of the difference between pleadings, allegations, accusations, evidence and submissions, and no understanding of the rules of evidence. Passages from judgments are incorporated as submissions and without attribution as if they were the product of his original work. At times, scandalous allegations are made about the conduct of the Minister, his delegates, his lawyers, and the Tribunal, without a scintilla of admissible evidence to support them.

48    Ground 1 alleges that the judgment below was affected by jurisdictional error in that the primary judge “mistakenly asserted or denied the existence of jurisdiction” or “misapprehended or disregarded the nature or limits of her functions or powers”.

49    Paradoxically, the submission in support of this ground is that the alleged errors were made within jurisdiction. Regardless, the alleged errors are said to be: failing to take into account the whole explanation for delay, including a claim in the written submissions that the applicants “had been subject of conspiracy”; denial of procedural fairness; bad faith; and fraud when the visa application “had been proceeded by the Minister, the Tribunal and the [FCFCoA]”.

50    The errors are said to have been made in [35] of the primary judge’s reasons. To put those remarks in context, it is necessary to refer to what her Honour said in the preceding paragraph as well. At [34]–[35] her Honour said this:

34    At the resumed hearing before the Court, the applicants (and Mr Kitoko) contended that the second applicant had previously been told in a call from the Department that she would not be allowed to bring her son to Australia. Whilst evidence of the call was not before the Court, it was submitted that I should nonetheless find that the Tribunal acted in concert with the Department in manufacturing the date of its decision to intentionally deprive the applicants of their rights to review. This was said to be supported by the delay between the stated decision date and the notification of it. It was also said to be supported by a lack of procedural fairness in the approach taken by the Delegate, including delay in making the Delegate’s decision. This was contended to have amounted to an abuse of process.

35    The evidence before the Court falls well short of supporting a finding that any such conspiracy occurred. The Tribunal’s decision was communicated within the period of 14 days allowed after a decision has been made: s 368A of the Act. The fact that notification occurred on Monday, 7 September 2020 after the decision was made on Thursday, 3 September 2020 does not establish any conspiracy between the Department and the Tribunal. Nor is this established by the applicants’ complaints regarding the Delegate’s decision. It was confirmed at the hearing that review was not sought of that decision. This Court would not have had jurisdiction to undertake such a review: s 476(2) of the Act.

51    The submission was that:

Following Craig v South Australia, the decision of the Federal Circuit Court made on 01 July 2022 was affected by jurisdictional error in that, as identified at [35] of her reasons for decision, Laing J mistakenly asserted or denied the existence of jurisdiction, or Laing J misapprehended or disregarded the nature or limits of her functions or powers, where her Honour correctly recognized that jurisdiction did exist: s 476(1) of the Act, and, in that, the decision of Laing J was invalid.

52    The submission makes little sense. The primary judge did not deny that she had jurisdiction to hear the judicial review application. Unquestionably, she had jurisdiction and she exercised it. In their submissions in reply, the applicants contended that in [35] of her reasons the primary judge “deliberately asserted that s 476(2) of the Migration Act was the only jurisdiction did exist on her functions or powers to judicially review the Applicants’ matters [sic]” and “deliberately denied the existence of s 476(1)”. This contention is based on a misreading of the primary judge’s reasons. The observation made in the last sentence of [35] of her Honour’s reasons had nothing to do with the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) to review a decision of the Tribunal, which was the jurisdiction she exercised. It was an observation about the fact that the FCFCoA had no jurisdiction to review the decision of the delegate.

53    It follows that ground 1 of the draft notice of appeal is doomed to fail.

54    Ground 2 alleges that the primary judge denied the applicants procedural fairness by not considering Ms Vela’s oral submission and Mr Kitoko’s written submission of “proposed ground three” of the judicial review application. In the affidavit filed in support of the present application, however, Mr Kitoko deposed that on 9 June 2022, “with a leave of the Court”, he filed a written submission in which “proposed ground three on the denial of procedural fairness [be] considered by the court in support [of] the applicants’ case”.

55    I could find no reference in the appeal book to a proposed ground 3. I was informed by the Minister’s counsel, Mr Johnson, that the only submissions that were filed by the applicants was a document, filed on 11 February 2021, which referred to only two grounds of review. Mr Kitoko informed the Court that his submission had been rejected for filing. No transcript of the hearing in the court below was tendered or annexed to any of the affidavits. But Mr Kitoko told the Court that the primary judge gave him the opportunity to make oral submissions based on his written submissions. In these circumstances, ground 2 is hopeless.

56    In the draft notice of appeal reference is made in this context (at [19]) to paras [34] and [35] of her Honour’s reasons. In the submissions filed in this Court the applicants claimed that, during the lengthy delay in the processing of the visa application neither they nor their sons were notified that “the visa assessments were being conducted” or invited to comment on “any issue that could cause such material delay in processing” and/or “the validity of the application under cl 445.111”. The applicants contended that the primary judge made a jurisdictional error by not finding that, in coming to its decision on 12 February 2020, the Minister had failed to comply with ss 51A(1), 56, and 57 “in that the Minister misconstrued and misapplied s 65 of the Act”.

57    I infer that the complaint is that the primary judge did not consider the applicants’ complaints about the delegate’s decision. If that is the case, this ground is doomed to fail because the application before the court sought a review of the Tribunal’s decision and her Honour’s observation that the FCFCoA had no jurisdiction to review the delegate’s decision is undeniably correct.

58    Section 476 relevantly provides that:

(2)    The [FCFCoA] has no jurisdiction in relation to the following decisions:

(a)    a primary decision[.]

…

(4)    In this section:

primary decision means a privative clause decision or purported privative clause decision:

(a)    that is reviewable under Part 5 … (whether or not it has been reviewed)[.]

59    A decision of the Minister or his delegate to refuse to grant a visa to a non-citizen is a “primary decision” within the meaning of s 476 in that it is a “privative clause decision” or “purported privative clause decision” within the meaning of s 474(2) of the Migration Act as it is “a decision of an administrative character made … under [the] Act … other than a decision referred to in subsection (4) or (5)”.

60    The submissions went on to allege that the primary judge made a jurisdictional error in not finding that the Tribunal had denied the applicants and/or “visa applicants” procedural fairness in the conduct of the assessment of the visa applications by refusing to consider, or ignoring, Ms Vela’s application to be added as a party to the proceeding “in breach of [s] 486B(7) of the Migration Act”. These submissions are equally baseless.

61    I understand the “visa applicants” to be a reference to Joshua and his two brothers. They were not parties to the application before the primary judge, so there could be no jurisdictional error in not providing them with procedural fairness. They were not entitled to be heard. An affidavit affirmed by Sophie Lloyd, who appeared for the Minister in the court below, filed with leave after the hearing in this Court, revealed that separate applications for Extended Eligibility visas had been made by each of the two brothers; that their applications had also been rejected; and that in two separate decisions the Tribunal had dismissed applications for review on the same basis as it had dismissed the application to review the refusal to grant Joshua a visa. It does not appear that any application for judicial review was brought in relation to those decisions. They were certainly not the subject of the application before the primary judge.

62    Since Ms Vela’s application was made after the Tribunal’s decision was made, it was not before the Tribunal. No application was made to the Tribunal for it to revoke its decision and, having regard to the terms of s 368(2A), it had no power to do so. Section 486B of the Migration Act is concerned with consolidation of proceedings and the joinder of parties in certain migration proceedings in the High Court, this Court or the FCFCoA. It has nothing to do with proceedings before the Tribunal.

63    The complaint about not being invited to attend a hearing before the Tribunal was not made in the court below and the applicants require leave to raise it. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). Where no explanation is given for the failure to take the point and the point seems of doubtful merit, leave should generally be refused: VUAX at [46]–[48]. Here, no explanation was given and the point is without merit, not least because the applicants were given an opportunity to be heard on the matters which troubled the Tribunal. Further, because the Tribunal was correct to find that it had no jurisdiction to review the application as it had been brought by Mr Tukala and he was neither the sponsor nor nominator of the application sought to be reviewed, the Tribunal was under no obligation to invite Mr Tukala to a hearing: Benissa v Minister for Immigration and Border Protection [2016] FCA 76; 150 ALD 276 at [34]–[37] (Edelman J).

64    What is more, even if the Tribunal were obliged to invite him to a hearing, its failure to do so could not have been a jurisdictional error as there was no realistic possibility of a different outcome: see Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737, 403 ALR 398 at [1] (Kiefel CJ, Keane and Gleeson JJ) and the authorities referred to there. Providing the applicants with an opportunity to address the Tribunal on the question of jurisdiction would therefore have been a hollow one: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1; Benissa at [30]. Ms Vela’s application was made well after the time expired to apply for review. No provision is made in the migration legislation for an extension of time. Section 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review of a decision if it is satisfied that it is reasonable in all the circumstances to do so. But s 29(7) is in Pt IV of the AAT Act and, with certain exceptions which are not presently relevant, s 24Z provides that Pt IV does not apply in relation to a proceeding in the Migration and Refugee Division of the Tribunal, which is the Division to which Part 5-reviewable decisions are allocated: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [60]–[84] (McKerracher, Reeves and Thawley JJ).

65    In these circumstances, it would not be expedient in the interests of justice to grant the applicants leave to advance this contention on appeal.

66    In submissions in reply the applicants also alleged “actual and apprehended bias against the Minister’[s] delegate in Pretoria”, the Tribunal’s officers, and the Tribunal member.

67    None of the material before the Court is capable of supporting such an allegation. For the reasons already given, the court below had no jurisdiction to inquire into any bias (actual or imputed) on the part of the delegate. The allegation made against the Tribunal is one of actual bias by reason of pre-judgment. It was put this way in submissions (without alteration):

[T]he Full Court in the present case would consider that actual bias exists where the Tribunal Member had pre-judged the case against the applicant, or had acted with such partisanship or hostility as to show that the Tribunal Member had a mind made up against the Applicants and/or the Visa’ Applicants and was not open to persuasion in favour of the Applicants and/or the Visa’ Applicants. Evidence of actual bias by inference from the facts and circumstances of this case involve an assessment of a series of actions by Ms Jomille Lastimosa and the Tribunal Member which, when taken together, form a whole picture leading to the conclusion of pre-judgment.

68    Where a decision-maker is guilty of bias, whether actual or apprehended, he or she will have committed a jurisdictional error: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. But bias must be “distinctly made and clearly proved”: Jia at [69] (Gleeson CJ and Gummow J) and [127] (Kirby J). A finding of actual bias requires a court to be satisfied that the decision-maker was so committed to a conclusion already formed that their mind was incapable of alteration, whatever evidence or arguments might have been presented to them: Jia at [72]. As Gleeson CJ and Gummow J observed in Jia at [72], “[n]atural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion”.

69    Nothing in the material before the Court suggests that the applicants would have any prospect of establishing a case of actual bias on the part of the Tribunal. The only evidence about Ms Lastimosa, a Tribunal Services Officer, was a reference in Mr Kitoko’s affidavit to an email she had sent to Mr Kitoko on 23 April 2020, the day after the time limit expired, attaching “the payment details form” and apologising for its omission from the previous email.

70    Nor, for that matter, does the material before the Court suggest that there is any prospect that the applicants could make out a case of apprehended bias. That would require the applicants to prove that a fair-minded lay observer, with knowledge of the non-curial nature of the Tribunal and its inquisitorial processes, might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal and Another; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; 116 LGERA 402; 9 Leg Rep 20 at [26]–[27]. The applicants have not pointed to anything which could raise such an apprehension.

71    Ground 3 is in the following terms:

Further to procedural unfairness, the Administrative Appeals Tribunals decision of 07 September 2020 is and was made in bad faith and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Tribunals decision is attended and invalidated by jurisdictional error.

Particularly, the Tribunal in its decision record of 12 July 2016 made a critical finding of fact that was adverse to my claims, rights and interests. These findings of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative materials.

72    No particulars were provided and the affidavit in support of the application merely repeated the terms of the ground.

73    In the circumstances, I am not persuaded that this ground has any prospect of success.

74    Ground 4 is entitled “[f]raud” and alleges that each of the decisions of the Minister, the Tribunal and the Federal Circuit Court “was affected by conspiracy, dishonesty, deliberate delay amounting to fraud in making profit and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Minister, Tribunals decision or the FCC is attended and invalidated by jurisdictional error”.

75    This ground is also bound to fail. Once again, no particulars were provided. The material before the Court provides no support for such serious allegations. What is more, as the Minister submitted, to the extent that this ground seeks to re-assert the matters addressed by the primary judge at [35] of her reasons, it is hopeless for the reasons already given.

76    In submissions the applicants alleged that “the decision” not to invite the applicants to appear at the hearing “was the result of the fraudulent conduct of Tribunal Services Officer, Jomille Lastimosa, and also the Tribunal Member”. That conduct is said to be the refusal to consider or ignoring Ms Vela’s application to be added as a party to the proceeding in circumstances where no such application was even foreshadowed before the decision was made. Moreover, as have already indicated, once made, the Tribunal had no power to revoke it: Migration Act, s 368(2A).

77    The final ground is ground 5. It reads (without alteration, footnote omitted):

The decision of the Minister of 12 February 2020, the Administrative Appeals Tribunals decision of 07 September 2020 and the decision of the FCC of 01 July 2022, each is and was affected by abuse of process, as result of Minister Dutton deliberately took more than two year and five months (or more than Twenty-Nine (29) months) to handed-down his decision to refuse to grant a Extended Eligibility (Temporary) (Class TK) visa, which was three (3) time the standard period of time lapsed for application processing of an EXTENDED ELIGIBILITY (Subclass 445) visa. and such that the Minister, Tribunals decision or the FCC is attended and invalidated by jurisdictional error and/or by protecting the interest the administration of the justice to the public.

78    The omitted footnote was to Reid International Pty Ltd v Ron Farris Real Estate Pty Ltd [2016] WASC 6 without any pinpoint citation. Insofar as it was conceivably relevant to the proposed ground of appeal, that case was concerned with the question of whether or not an action commenced in the Supreme Court of Western Australia seeking relief under the Competition and Consumer Act 2010 (Cth) should be dismissed or permanently stayed as an abuse of the processes of the court.

79    This ground, too, is bound to fail. No foundation was disclosed for the assertion that the Minister or, for that matter his delegate, deliberately delayed publishing the decision to refuse to grant Joshua’s visa. And the applicants did not explain how any delay on the part of the Minister or his delegate amounts to jurisdictional error on the part of the Tribunal. The relationship between the relevant passages of the judgment in Reid to the circumstances in the present case is a mystery.

Conclusion

80    None of the draft grounds of appeal are reasonably arguable. It would therefore be futile to grant the applicants an extension of time. In these circumstances, and having regard to the terms of s 37M(3) of the FCA Act, the application must be refused.

Costs

81    As the application was wholly unsuccessful, costs should follow the event. In his written submissions the Minister indicated that, having regard to the nature of the grounds sought to be raised on appeal, it might be “appropriate” for the Court to consider whether the Minister’s costs should be paid by Mr Kitoko, rather than the applicants, pursuant to s 486F of the Migration Act.

82    Read with s 486E, s 486F(1) relevantly empowers the Court to make an order that the Minister’s costs be paid by a person who encourages a litigant to commence or continue migration litigation if the litigation has no reasonable prospect of success and the person does not give proper consideration to the prospects of success of the litigation or the litigation was commenced or continued for a purpose unrelated to the objectives which the court process is designed to achieve.

83    In view of my conclusion, I must consider whether an order under s 486F(1) should be made: s 486F(2). The order may be made on the Court’s own motion or on the application of a party to the litigation (s 486F(3)) and any motion or application must be considered at the time the question of costs in the litigation is decided (s 486F(4)). But the Court cannot make such an order unless the person is given a reasonable opportunity to argue why the order should not be made: s 486G.

84    In these circumstances, the Minister submitted that I should reserve the question of costs and that is what I will do.

Associate:

Dated:    9 February 2023