Berzin v Minister for Immigration

[2020] FCCA 2152

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERZIN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2152

Catchwords:
MIGRATION – Judicial review – whether applicant has standing application for summary dismissal – originating application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s 17A

Federal Circuit Court Rules 2001 (Cth), r 13.10(a)

Migration Act 1958 (Cth), ss 476, 476(1) and 478(a)

Cases cited:

Singh v Minister for Immigration and Border Protection [2019] FCCA 1614

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: MARINA XAVIER BATISTA BERZIN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 479 of 2019

Judgment of: Judge Heffernan

Hearing date: 10 July 2020

Date of Last Submission: 10 July 2020

Delivered at: Adelaide

Delivered on: 10 July 2020

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Ashby

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed on 27 November 2019 is dismissed.

2. Any other extant orders are dismissed.

3. The applicant do pay the first respondent’s costs fixed in the amount of THREE THOUSAND, SEVEN HUNDRED AND THIRTY SEVEN DOLLARS ($3,737).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 479 of 2019

MARINA XAVIER BATISTA BERZIN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

1. This is an application by the Minister for summary dismissal of an application that was filed in late November 2019.  That application sought an order that a decision of the Administrative Appeals Tribunal (‘the Tribunal’) be quashed, a writ of mandamus and an injunction against the Minister.

2. There are 13 grounds of application which are expressed in terms of a series of particulars as follows:

   “1.I, Marina Xavier Batista Berzin started working at New Norcia Bakery from November 2015 until May 2018 as a Pastry Chef.

   2.At that time, I was studying Certificate III and IV at Patisserie, and the opportunity to work at New Norcia Bakery was very important to me, to learn and grown in my career as a Pastry Chef.

   3.As I was in a student visa, I worked 20 hours per week and my duties were the preparation and cooking of the dishes of the menu, prepare cakes and pastries, prepare fillings and toppings, decorate cakes, ensure all equipment were working properly and cleaned, check the quality of the products delivered, and so on.

   4.Rizza White and the owner Kirsti Knight, came to me to offer a Sponsorship job.

   5.I contacted an immigration agency to help us through the visa process, and we chose the company CCI - Chamber of Commerce and Industry of Western Australia Inc, with the immigration agent Jessica Williams.

   6.I had several meetings with the immigration agent of CCI to make sure everything was in order and to understand my rights and duties of the visa.

   7.The visa was lodged and then immigration agent told me that everything went well with the application.

   8.After more than a year waiting for the answer of the visa, we got an email about the Visa Refusal and the reason. As I was reading it through I couldn't believe what had happened. Especially because the one of the reasons of the refusal, which was that the company was in a bad financial position, was in debit.

   9.Especially my immigration agent, because I believed that she would had access to the financial information about the company before apply for the visa, so in my opinion she was not honest with me by do not letting me know that the bad financial situation of the bakery could be a risk for the visa.

   10.I think I am entitled to give my thoughts and reasoning for my position.

   11.The AAT stated it did not have jurisdiction to hear my merits review.

   12.I have relevant matters to discuss that I hope the court will take into consideration.

   13.I feel that I have not been listened to and do not understand why my visa was refused and would like a chance to put forward my side of the situation.”

   (Reproduced verbatim)

3. A Registrar of this Court made some procedural orders on 7 February 2020 for the filing of a Court Book, amending of the application, and the filing of further materials, as a procedural step towards setting the matter up to be listed for a final hearing.  Subsequently, the first respondent, having filed a Response, filed an Application in a Case on 18 May of this year seeking to summarily dismiss the application of Ms Berzin.

4. The Registrar then made an order excusing the first respondent from filing a Court Book, presumably pending the outcome of this Application in a Case.  The Application in a Case is supported by the affidavit of Ms Ashby that was filed on 18 May 2020.  I have had regard to that affidavit.  I have considered the Outline of Submissions and the list of authorities that have been provided to me by the Minister.  I have also read the affidavit of the applicant which supported this originating Application.

5. The background to this matter is not in dispute.  The applicant is a Brazilian citizen and has been in Australia for a number of years, having arrived in October 2013.  She was nominated by the Mias Group Pty Ltd, a company which was trading as New Norcia Bakeries, for the position of pastry cook, in a nomination application.  The applicant also applied on the same day for a Regional Employer Nomination visa.

6. On 24 January 2018, a delegate of the Minister refused the nomination application.  On 12 February 2018 the company, that is Mias Group Pty Ltd, filed an application in the Administrative Appeals Tribunal for a review of the delegate’s nomination decision.  On 26 February 2018, a delegate of the Minister refused the applicant’s visa application, then on 12 March, the applicant, and that is Ms Berzin, applied to the Tribunal for a review of the delegate’s decision.

7. The nominating company obviously found itself in some financial difficulties and it was wound up by a liquidator on 24 April 2018.  On 9 October 2018 the company withdrew its application for review in the Tribunal.  On 6 November 2019 the Tribunal concluded that it did not have jurisdiction to determine the company’s application for review of the nomination decision, and on 7 November 2019 the Tribunal notified the company of that decision.  On 26 November 2019, as I said, the applicant, Ms Berzin, filed this Application for judicial review. 

8. The Minister applies for summary dismissal on the following basis. It submits that the applicant does not have a reasonable prospect of successfully prosecuting these proceedings because the application is not competent, and as a result I do not have jurisdiction under s 476(1) of the Migration Act 1958 (Cth) (‘the Act’). That is because, pursuant to s 478(a) of the Act, an application for review of a decision made under Part 5 of the Act can only be made by the Minister or the applicant in the review before the relevant Tribunal.

9. The difficulty that Ms Berzin faces is that she was not the applicant for review before the Tribunal.  That is a dilemma that I suspect is somewhat confusing for Ms Berzin being a self-represented person who has not been able to afford legal advice.  The confusion is understandable because, in a very real sense, she was the subject of the application because it pertained to her being able to work for the company pursuant to a particular nomination, but she was not the applicant to the review. 

10. And as I have already noted, it is only an applicant who can apply for a review of a decision made under Part 5. I accept the submission of the Minister that the originating Application in this matter relates to the Tribunal’s nomination decision, and that is apparent from the documents that Ms Berzin has filed. Ultimately the Minister submits that the applicant simply does not have standing to seek a review of that nomination decision for the reason that I have identified.

11. The applicant does have an application for merits review currently on foot in the Tribunal, which seeks review of the delegate’s visa decision, but the outcome of that application has not yet been determined by the Tribunal.  Because of that lack of standing, the first respondent says that the applicant does not have any prospect of success and I should take the irregular step of summarily dismissing the application in the exercise of my discretion to do so. 

12. The first respondent also seeks the scale amount of costs for the expenses it has incurred, and has submitted, and I accept, that the scale amount represents less than the amount that has been incurred by them to date in defending and responding to these proceedings, and in making its Application in a Case. 

13. I have power to entertain judicial review pursuant to s 476 of the Act. As the Minister has correctly identified, that power is limited by virtue of s 478(a) of the Act which provides for who can make such an application. It is the Minister and the applicant for the visa, not the person who was nominated, which is the position of Ms Berzin, who have standing. The Federal Circuit Court of Australia Act 1999 (Cth) provides a power to me to deal summarily with applications and dismiss proceedings summarily where appropriate. That power is to be found in s 17A of the Federal Circuit Court Act:

    17A Summary judgment

    (1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)the first party is prosecuting the proceeding or that part of the proceeding; and

    (b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

    (2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)the first party is defending the proceeding or that part of the proceeding; and

    (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

    (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

    (a)hopeless; or

    (b)bound to fail;

    for it to have no reasonable prospect of success.

    (4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”

14. There is a rules-based power under the Federal Circuit Court Rules2001 (Cth) (‘the Rules’) to dispose of a matter by way of summary dismissal contained in r 13.10(a) of those Rules, and I can do so if I am satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting it.

15. The Minister referred me to a number of authorities with respect to the exercise of power to summarily dismiss a matter, including a decision of Judge Mercuri in Singh v Minister for Immigration and Border Protection[1] which in its terms referred to the often-cited authority of Spencer v Commonwealth of Australia,[2] a decision of the High Court.  It is to be accepted that the power to summarily dismiss proceedings should be exercised cautiously.  And that is the case irrespective of whether the application for summary dismissal is an attack on the merits of the claim or whether it is an attack on the actual jurisdiction and standing to entertain the claim.

    [1] [2019] FCCA 1614.

    [2] (2010) 241 CLR 118.

16. The High Court noted that whether it be expressed in terms of no reasonable prospect of conviction or some other formula, ultimately the discretion should only be exercised if the court has a high degree of certainty about the ultimate outcome of the proceeding if it were to be allowed to go to trial in the ordinary way. I have considered the submissions and all of the materials, and on the basis on which the originating Application has been filed, I do have a high degree of certainty about the ultimate outcome being unsuccessful, and to use the language of the Rules, I do not believe that the application has a reasonable prospect of being successfully prosecuted.

17. That then brings me to the point of exercising the discretion.  This is an application based on the very foundation of the Court to entertain the application.  In other words, the fundamental question is whether I do or do not have power to provide the relief that is sought if the matter were to proceed to trial.  I am satisfied that I do not have the power to make an order for the relief sought by the applicant if the matter were to be allowed to go to trial in the ordinary way.  In the circumstances I am satisfied that in the exercise of my discretion it is appropriate to summarily dismiss these proceedings.

18. The applicant made submissions which I have considered, and they were effectively to the extent that she feels a deep sense of grievance about the Tribunal’s decision, that she feels that she has been denied a visa when she should have been given a visa, and that the whole process has been unfair to her.  She has also submitted to me that she is in financial hardship.  She has been in Australia for many years, and the uncertainty is a matter which has been very stressful for her because she had an expectation, at least from her perspective, that she would be successful in being able to work with the company on the basis of its nomination of her.

19. I have considered those matters and this is a very unfortunate circumstance for the applicant, that is abundantly clear; however, that does not alter the defect in the application itself, namely that the applicant does not have standing, and I do not have jurisdiction.  I took those matters into consideration in determining whether to exercise the discretion to summarily dismiss. 

20. The ordinary course is for costs to follow the event.  I can see no good reason why the first respondent should not be awarded its costs.  I have accepted their submission to the effect that they have claimed a lesser amount of costs than they have actually incurred.  It is not for the Court to stipulate that the first respondent should enter into any arrangement with the applicant, Ms Berzin, as to how those costs should be paid, whether the full amount of the costs is enforced, or that it be paid in instalments, but it nonetheless seems to me in the circumstances, which I have accepted, namely the financial hardship of the applicant, that they would be appropriate considerations for the first respondent.

21. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 6 August 2020