Bernal v Minister for Immigration
[2017] FCCA 1394
•21 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BERNAL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1394 |
| Catchwords: COSTS – Migration judicial review proceedings – where leave to discontinue granted at hearing. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02, 44.15(1) and (2) |
| Cases cited: Ahmad v Minister for Immigration & Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 Bunnagv Minister for Immigration & Anor (No.2) [2008] FMCA 430 Covell Matthews and Partners v French Wools Limited [1977] 2 All ER 591 WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 |
| First Applicant: | TALITA RAYMUNDO BERNAL |
| Second Applicant | HELIO DA CONCEICAO GONCALVES |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 172 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 June 2017 |
| Date of Last Submission: | 21 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 21 June 2017 |
REPRESENTATION
| For the First Applicant: | In person |
| For the Second Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicants have leave to discontinue these proceedings.
That the applicants pay the first respondent’s costs in the sum of $5,800 by 21 August 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 172 of 2016
| TALITA RAYMUNDO BERNAL |
First Applicant
HELIO DA CONCEICAO GONCALVES
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The applicants seek leave to discontinue these proceedings. The first applicant attended this morning at the Registry seeking to file a Notice of Discontinuance on behalf of herself and the second applicant, and was told, quite properly, by the Registry to attend the hearing this morning and seek leave of the Court for the discontinuance.
The applicants, by application filed on 18 April 2016, applied under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) of a decision of the second respondent, the Administrative Appeals Tribunal, made on 23 March 2016 (“AAT” and “AAT Decision” respectively) that the AAT had no jurisdiction to hear their application for review of a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) to refuse the first applicant’s Temporary Business Entry (Class UC) visa (“Business Visa”) because the AAT lacked jurisdiction to conduct the review.
It is unnecessary for present purposes to set out the background to the proceedings leading up to the AAT Decision. Rather, it suffices to observe that:
a)on 12 February 2016, the applicants were invited by the AAT to comment on the validity of the application to the AAT for review of the Delegate’s Decision: Court Book (“CB”) 127-130. On 4 March 2016, the applicants’ migration agents responded, seeking a refund of the fees in relation to the application to the AAT for review, as the application had been 'deemed invalid': CB 131. The AAT advised the applicants that this was a preliminary view formed, and once the deadline for response had passed, that the AAT would determine the question of jurisdiction: CB 131;
b)the AAT Decision determined that the AAT did not have jurisdiction in the matter: CB 137-138; and
c)the Business Visa application form listed Mighty & Tidy Pty Ltd as the applicants’ sponsoring employer (“Sponsor”): CB 9, and the applicants had been identified in a nomination by the Sponsor which had been refused and, as the Sponsor had not applied for review of that decision, the requirements of s.339(2)(d) of the Migration Act were not met: CB 138 at [5].
The Judicial Review Application contains a single ground as follows:
1. The AAT stated that they did not have authority to review the refusal of the visa application.
As set out at [1] above the applicants have today sought leave to file a notice of discontinuance. The first respondent, the Minister for Immigration & Border Protection (“Minister”) consents to leave being granted to discontinue the proceedings, subject to an order for costs. The Court notes that the Minister although aware that the applicants might seek to discontinue, was not made aware of the notice of discontinuance sought to be filed until, effectively, it would appear, the matter was before the Court.
The Court notes the terms of rr.13.01 and 13.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), dealing with discontinuance, and notes, in particular, the requirement for leave to be granted where proceedings are sought to be discontinued less than 14 days prior to the hearing, which is the case here. The Court also notes that part of r.13.02 of the FCC Rules, which suggests that a similar application might be filed in future and what might happen in terms of costs, with respect to such an application.
Generally speaking, a notice of discontinuance will be acceded to by a Court, although the Court’s discretion to grant leave is unfettered but not automatic: Primary Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174. Leave to file a notice of discontinuance would generally be acceded to where an applicant does not wish to proceed, it not being desirable that an applicant should be compelled to litigate against the applicant’s will, as was observed in Trade Practices Commission v APM Investments Pty Ltd (No.2) (1983) 74 FLR 276, where Woodward J cited earlier observations in the United Kingdom in Covell Matthews and Partners v French Wools Limited [1977] 2 All ER 591. A notice of discontinuance would also generally be acceded to where there is no injustice to the other parties.
The Court confirmed with the applicants (represented today by the first applicant) that they sought to discontinue the application, and that they were aware that the Minister sought the costs of the discontinuance. Generally costs follow the event and, therefore, an unsuccessful or discontinuing party in litigation of this type pays the successful party’s costs: FCC Rules, r.44.15(1) and (2), and see generally Bunnagv Minister for Immigration & Anor (No.2) [2008] FMCA 430; WZATK v Minister for Immigration & Border Protection [2014] FCA 1174 at [23] per Siopis J, from which the High Court refused to grant special leave: WZATK v Minister for Immigration & Border Protection & Anor [2015] HCASL 41.
In determining that there is no injustice to the respondents on the application for leave to discontinue, the Court notes that there is no power to set aside a discontinuance in this Court, except in limited circumstances whereby the discontinuance might be conceived to be a nullity which requires the discontinuance to have been induced by fraud, duress or a mistake without the knowledge of the applicant or something akin thereto. At an absolute minimum, it requires exceptional circumstances: see SZFOZ v Minister for Immigration & Citizenship [2007] FCA 1137 (“SZFOZ”), and the relevant passages from SZFOZ referred to in MZZDN v Minister for Immigration [2015] FCCA 69 at [44]-[47] per Judge Burchardt (“MZZDN”), and also the passages referred to in MZZDN at [48] from Khadri v Minister for Immigration & Border Protection [2014] FCA 91. It is fair to observe on what the Court has before it there is no suggestion that there are circumstances of the kind referred to.
Given that the applicants are voluntarily seeking to discontinue, the Court is satisfied that it would be very difficult for the applicants to succeed in any necessary application for an extension of time to file a further migration judicial review application (as to which see Kansra v Minister for Immigration & Anor [2014] FCCA 2726) when regard is had to the relevant factors for consideration on an extension of time application as outlined by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344 and Quan v Minister for Immigration & Border Protection [2014] FCA 1239. In that regard, the Court also notes the merits of the substantive application with which it will deal in a moment. But it suffices to say that, on any necessary extension of time application, the Court is satisfied that the Court would find that the substantive application had no merit.
The jurisdiction of the Tribunal is only enlivened upon receipt of an application for review of a "Part 5-reviewable decision": s.347(1) of the Migration Act.
Section 338(2) of the Migration Act provides, relevantly, that a decision is a Part 5-reviewable decision if:
(d) Where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) The non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made;
or
(ii) An application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The first applicant, however, did not meet the requirements of s.338(2)(d) of the Migration Act. She was not sponsored by an approved sponsor at the time the application to review the Delegate’s Decision was made.
A visa-applicant is taken to be "sponsored" for the purposes of s.338(2)(d)(i) of the Migration Act if they have been identified in a nomination by an "approved sponsor" under s. 140GB of the Migration Act and where such nomination remains in force: Minister for Immigration & Anor v Lee [2014] FCCA 2881 at [47]-[48] per Judge Nicholls.
In this matter, the two nomination applications lodged by the Sponsor had been refused. Accordingly, the applicant had not been identified in an approved nomination of an occupation under s.140GB of the Migration Act that was in force at the time the application for review of the Delegate’s Decision was lodged with the AAT. Furthermore, there is no evidence that any nomination applications remained undecided at the time the applicant lodged the application for review with the AAT: Kandel v Minister for Immigration & Anor [2015] FCCA 2013; (2015) 300 FLR 189.
There is also no evidence that an application for review of a decision not to approve a sponsor had been made or was pending at the time of the application to the AAT for review of the Delegate’s Decision.
It has been held that the meaning of the phrase “decision not to approve the sponsor” includes both the approval of a sponsor under s.140E of the Migration Act and the approval of the nomination under s.140GB of the Migration Act: Ahmad v Minister for Immigration & Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 at [99] per Katzmann, Robertson and Griffiths JJ. In this matter, however, there is no evidence that the Sponsor had applied for review of either such decision.
It follows that the AAT Decision that it did not have jurisdiction to review the Delegate’s Decision dated 12 January 2016 was correct, and gives rise to no jurisdictional error in the AAT Decision: Migration Act, ss.474 and 476.
In the above circumstances the Court has determined that:
a)there should be a grant of leave to the applicants to discontinue these proceedings; and
b)the applicants must pay the first respondent’s costs in the amount of $5,800 by 21 August 2017.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 21 June 2017
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