Bhupathi v Minister for Immigration

[2020] FCCA 1549

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHUPATHI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1549

Catchwords:
MIGRATION – Application for adjournment – where applicant says he has not been able to afford legal representation – where applicant says he contacted a lawyer two days ago – where applicant says he is waiting for money to be transferred to him – application dismissed.

MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal to refuse a subclass 187 Regional Sponsored Migration Scheme visa – whether the Tribunal erred by failing to take into account the applicant had been employed in the same business for three years – where the application for sponsorship and for the visa had been rejected – where the Tribunal held a combined hearing and was required to refuse the visa application – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) sch. 2 cl. 187.233

Applicant: KRISHNA THEJA BHUPATHI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 35 of 2019

Judgment of: Judge Young

Hearing date: 3 June 2020

Date of Last Submission: 3 June 2020

Delivered at: Darwin

Delivered on: 3 June 2020

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Clark

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for adjournment is dismissed.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNG 35 of 2019

KRISHNA THEJA BHUPATHI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“AAT” or “the Tribunal”) to refuse the applicant a Regional Sponsored Migration Scheme visa under subclass 187 to work in his preferred occupation.

3. The basis of the application for review is that when the AAT made its decision on 18 October 2019 Mr Bhupathi said they failed to take into account that he had been employed for three years in a business as a cook or a chef.  According to the materials in his application for review he said that the Tribunal overlooked the fact that he had been earning $50,000 a year for the last two years, as claimed in Ground 3 in his application.  .

4. In Ground 1 he said one of the Tribunal’s errors was that it failed to take into account that he had been working for the same employer for the last three years.  That would be as of the date of the Tribunal hearing presumably on 18 October 2019. 

5. One of the issues that the Tribunal was concerned about appears to have been certain inconsistencies in the statements made by the applicant about his employment and earnings but that in itself was not the ground for refusal of the application.

Adjournment Application

1. Today the applicant has applied for an adjournment.  He told me from the bar table that he had instructed a lawyer, Ms Koulianos from Maley’s Solicitors, a Darwin firm, and that he had contacted or spoken to her two days ago on 1 June. 

2. I asked him whether Ms Koulianos was requiring that any money be paid into the firm trust account before she would represent him and he said that was the case.  I asked him whether those moneys had been paid into the firm’s trust account and he said they had not but they would be paid today.  I asked him why the money had not been paid and he said that he had not himself received the money which he was borrowing from his father overseas.  He was waiting for the money to be transferred and he expected it to be received today.  He said the transfer time was three to five days.

3. Mr Bhupathi has gave me no information about why his approach to Ms Koulianos was made two days ago.  He also told me that he had been speaking to a lawyer in Melbourne but apparently that lawyer was unable to assist him because of a death in the lawyer’s family which occurred two weeks ago.  Mr Bhupathi was very lacking in detail about that and he told me that for the past eight months the reason why he had not retained a lawyer was because he could not afford one.  I take it from that that Mr Bhupathi is having some difficulties in his employment. 

4. In my view, accepting what Mr Bhupathi says at its highest, which I do for the purposes of this application, his failure to obtain legal advice over the past eight months since he filed his application relates to his inability to afford a lawyer.  He says that even now he cannot afford a lawyer but he seeks an adjournment in the hope that money will arrive.  He says the money will arrive but he has given me no evidence to substantiate that is so at the moment.

5. I am not satisfied that there is a proper ground in any of that for an adjournment.  The application was made eight months ago and it was made in circumstances where it was said that one of the grounds of error was that the Tribunal had overlooked the fact that Mr Bhupathi was employed and had been employed for three years.  A necessary element of any success would be that he was or would be employed at the time of the relevant decision.

6. I accept that Mr Bhupathi’s explanation is truthful but that it is unsatisfactory in the circumstances.  Given the pressure of work in this court and the importance of maintaining listings I am not satisfied that there is a proper ground for an adjournment.  The application is refused.

Judicial Review Application

1. This is an application for judicial review of a decision of the AAT made on 18 October 2019 to refuse the applicant a Regional Sponsored Migration Scheme visa. Some of the criteria for that visa is set out in clause 187.233 of schedule 2 of the Migration Regulations. In substance, the criteria require that the visa be sponsored and the nomination for sponsorship be approved.

2. The applicant was refused his visa on one ground only and that was that there was no approved nomination.  The application for nomination was made by a sometime employer of Mr Bhupathi, Gould Pty Ltd.  The application for approval of Gould Pty Ltd’s sponsorship of Mr Bhupathi was refused on 27 September 2019.  It followed that when the Tribunal dealt with the matter it could do nothing but reject Mr Bhupathi’s application.

3. I might say that the Tribunal conducted a combined hearing in relation to the prospective employer’s application for nomination and the application for the visa by Mr Bhupathi on 26 June 2019.  The application for sponsorship and for the visa were rejected on the basis that a criterion, in particular criterion 187.233(3), was not satisfied.  In the circumstances, the Tribunal was required to refuse the visa application. 

4. It is noteworthy that in the Tribunal’s consideration of the application it was concerned about some inconsistencies, in particular that the applicant had provided PAYG statements for the years 2017 and 2018 indicating that he had been employed by Gould Pty Ltd and paid $50,000 a year.  However, at the time of the hearing and certainly at the time of the decision, the Tribunal raised a concern about the absence of a PAYG statement for the 2019 financial year.

5. The Tribunal expressly declined to infer that at the time of the hearing and possibly at the time of the application the applicant was actually employed as claimed by the sponsor who was applying for approval of its nomination, that is, Gould Pty Ltd.  Technically of course that factor is irrelevant.  The Tribunal was not able to approve the application for the visa given the rejection of the sponsorship application in the previous month.

6. I gave Mr Bhupathi the opportunity in oral submissions to point to any error.  I attempted to explain to him in very simple terms what jurisdictional error might consist of but he was unable to make any useful submissions to me.  I am satisfied that there is no jurisdictional error in the decision and accordingly the application will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 June 2020