Adil v Minister for Immigration

[2019] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADIL v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2073

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Subclass 457 Temporary Work Skilled Visa – consideration of an application for adjournment – application dismissed with costs.

Legislation:

Migration Act 1958

Migration Regulations 1994, Schedule 8

Cases cited:

Minister for Immigration and Citizenship v Li (2013) HCA 18

Applicant: MOHAMMED SHARF UDDIN ADIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 249 of 2017

Judgment of: Judge Blake

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Melbourne

Delivered on: 20 May 2019

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the First Respondent: Ms Roberts

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The Application filed on 7 February 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 249 of 2017

MOHAMMED SHARF UDDIN ADIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

Introduction and Procedural History

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 11 January 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the Applicant’s subclass 457 (Temporary Work (Skilled)) visa (“visa”).

2. The Applicant is an Indian national. He was granted the visa on 5 February 2014. The visa was granted on the basis of the Applicant’s employment as a café or restaurant manager at Noodle Hut Halal Pty Ltd.

3. On 8 January 2016, a notice of intention to consider cancellation of the visa was issued on the basis that the Applicant had breached condition 8107 of Schedule 8 of the Migration Regulations1994. Schedule 8 required the Applicant not to cease work for a period of more than 90 days.

4. On 15 January 2016, the Applicant’s migration agent, by way of a response to the notice, conceded that the Applicant had, in fact, breached condition 8107 but said that this had occurred as a result of circumstances not within the Applicant’s control. The migration agent also asserted that the Applicant had a new sponsor who subsequently lodged a nomination application with respect to the Applicant on 9 October 2015.

5. On 18 January 2016, the Applicant’s visa was cancelled by a delegate of the Minister in accordance with the Migration Act 1958 (“Act”). The visa was cancelled on the basis that the Applicant had breached the relevant condition by ceasing employment for the specified period.

6. On 20 January 2016, the Applicant applied to the Tribunal for a review of the delegate’s decision. Pursuant to the Act, the Applicant was invited to comment on or provide any information to the Tribunal in respect of the exercise of its discretion with respect to the decision.

7. On 29 June 2016, the Applicant was invited by the Tribunal to attend a hearing on 17 August 2016. The Applicant attended this hearing with a representative.

8. On 11 January 2017, the Tribunal affirmed the decision to cancel the Applicant’s visa. The Tribunal determined that the Applicant had, in fact, breached the relevant condition and concluded that the Tribunal’s power to cancel the visa should be exercised in the circumstances.

9. The Applicant then applied to this Court on 7 February 2017.  He filed an Application and an Affidavit in support which annexed the Tribunal’s decision.

10. This matter was initially listed as a show cause hearing. However, orders were made by consent that the matter proceed for hearing on a final basis. The matter was originally listed before his Honour Judge McNab but was subsequently re-docketed to me.

11. While the consent orders made by his Honour Judge McNab on 19 October 2017 provided for the Applicant to file additional material and, indeed, an amended application, no steps were taken in this respect by him.

Ground of Review

1. The sole ground of review of the in the application filed is as follows:

   ‘LACK OF NATURAL JUSTICE FROM DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION, ADMINISTRATIVE APPEEL TRIBUNAL

   …

   As I requested to the Tribunal to allow me to be presented by the lawyer that will be available soon with proper submission because my previous lawyers don’t want to act on behalf of me and same time the christmas holidays stated so I can’t find other lawyers so I asked tribunal to provide more time so that I can find new lawyer because of holidays I can’t able to find lawyers and new sponsor. So my lawyer left me when the tribunal ask to comment and I don’t have enough time and I have already work for one and half Year as a restaurant manager an there is no problem in my application it all happens because of business close down if I would have given more time I can find new sponsor and save my 457 visa.’ (sic)

2. The matter proceeded for hearing before me today, and the Applicant was unrepresented. When I asked the Applicant what his case was about, he said, in effect, that his complaint was that he had not been granted sufficient time to obtain a new lawyer because of the Christmas period.  In considering that aspect of the submission, it is important to understand the sequence of events that led to the Tribunal decision.

3. In addition to the matters that are presently before the Court concerning the cancellation of the visa, it appears that the Tribunal was also dealing with an apparent application by or on behalf of the Applicant for a new nomination and that this was a matter that was also progressing in the Tribunal.

4. As I have noted, the Tribunal heard the matter involving the cancellation of the visa to which these proceedings relate on 17 August 2016. The Tribunal agreed to delay its decision in respect of the cancellation of the visa until 19 September 2016 to await the Applicant advising it of the “nomination decision”. This much is apparent not only from the face of the Tribunal’s record of decision but also from a notation on the hearing record that formed part of the Court book at Court Book 107.

5. On 26 October 2016, the Applicant’s then representative was contacted by the Tribunal. In that note, it is apparent that the Tribunal was seeking information and indicating an intention to finalise its decision. The note, which is reproduced at Court Book 116, indicates that the Applicant’s representative said that she would seek instructions from her client and the nominator about any further action and would let the Tribunal know the outcome of that by 28 October 2016.

6. What then happened was that on 27 October 2016, the representative for the Applicant advised that she was no longer acting for the Applicant.  On this same day, the Applicant asked for more time to be given due to the change of representative.  As a result of his request on 27 October 2016, he was, indeed, given more time to deal with the matters and to come back to the Tribunal.

7. On 21 December 2016, the Tribunal wrote directly to the Applicant.  This was some two months after the Applicant had sought the additional time on 27 October 2016.  In its letter, the Tribunal stated that it would be making a decision on the Applicant’s case in the week commencing 3 January 2017 and that any further submissions received before 3 January 2017 will be considered by the member. The letter went on to note that the Applicant had made no contact with the Tribunal since seeking additional time almost two months ago and that the member would not further delay making a decision beyond this time given the very considerable time the Applicant had had.

8. On 2 January 2017, the Applicant wrote an email to the Tribunal in which he effectively sought again more time in order to put his case.  Eventually, on 11 January 2017, the Tribunal issued a statement of decision and reasons in which it proceeded to cancel the visa. 

9. It is to be noted that this decision was issued some four and a half months after the hearing date and some two months, or slightly more, after the Applicant had first sought more time to deal with the change or withdrawal of his representative. It is to be observed in this matter that there is no contest about the Applicant’s non-compliance with regulation 8107 of Schedule 8 of the Regulations. The issue raised by the Applicant here concerns his request for an additional extension of time and/or adjournment.

10. A key principle in relation to requests for adjournment of this type have been dealt with most notably by the High Court of Australia in Minister for Immigration and Citizenship v Li (2013) HCA 18. The Court noted there the longstanding presumption at law that:

    The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.

11. The High Court from paragraph [63] onward in Li go on to deal with the principles and considerations around the exercise of a power that is to be exercised on a discretionary basis.

12. The request for the adjournment sought by the Applicant was expressly dealt with by the Tribunal.  The Tribunal expressly considered the final request but decided to proceed to make a decision on 11 January 2017.  The Tribunal is given the power and discretion to determine whether to adjourn proceedings, and the law, as I have indicated, requires that it exercise that discretion reasonably.

13. That the Tribunal dealt with this matter expressly is to be noted, in particular, from paragraphs 36 to 38 of its decision record which is reproduced at page 135 of the Court Book. I do not here repeat the essence of those paragraphs but refer to them in full. When those paragraphs are looked at, it is apparent that the Tribunal reasoned that 20 weeks had passed since the hearing and that it did not consider that further delaying the decision was appropriate given the significant period of time that the Applicant had already been granted.

14. Weight was placed by the Tribunal on the fact that the Applicant provided no evidence of when or if he might be the subject of an approved nomination, noting the need for efficiency and timeliness in the Tribunal’s processes. The Tribunal also had regard to the substance of the reasons for a deferment put to it by the Applicant. The Tribunal then provided reasons in support of the refusal to allow the Applicant further time. This was not a case in which it lacked an evident and intelligible justification for doing so.

15. Having regard to those matters and having considered the material in the Court Book and the relevant authorities, the Application of the Applicant in this matter should be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:  

Date:  30 July 2019