Bissessur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 336

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bissessur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 336

File number(s):

MLG 2058 of 2020

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

11 May 2022

Catchwords:

MIGRATION LAW – application for reinstatement – decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs –finding that there was a reasonable excuse for non-attendance on the first occasion – where the applicant seeks to challenge a privative clause decision – where the court lacks jurisdiction – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 16.05

Migration Act 1958 (Cth), ss 474, 476

Migration Regulations 1994, sch 2, cls 457.211, 457.321

Division:

Division 2 General Federal Law

Number of paragraphs:

35

Date of last submission/s:

7 September 2021

Date of hearing:

7 September 2021

Solicitors for the Applicant:

The Applicant appeared in person

Solicitors for the Respondent:

Mr Kovacs of Clayton Utz

ORDERS

MLG 2058 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HUNSRAJ KUMAR BISSESSUR

First Applicant

PARVEEN BABITA BISSEUR
Second Applicant

RAVYASHNA BISSEUR (and another named in the Schedule)
Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	11 MAY 2022

THE COURT ORDERS THAT:

1.The applicants’ reinstatement application be dismissed.

2.The applicants pay the first respondent’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. This is an application to set aside orders made on 9 March 2021 dismissing the applicant’s primary application. The application was made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) and the applicant sought the reinstatement of his substantive application.

   FACTUAL BACKGROUND

2. The applicant’s initial substantive application was supported by an affidavit filed on 16 June 2020.[1]  The applicant annexes a copy of the delegate’s decision in this matter dated 12 July 2017 and attests to the fact that that decision was sent to him by email that same day.[2]

   [1] Applicant’s affidavit sworn on 15 June 2020 and filed on 16 June 2020.

   [2] Applicant’s affidavit sworn on 15 June 2020 and filed on 16 June 2020 at paragraph [4].

   Delegate’s decision record dated 12 July 2017

3. The delegate’s decision records that the first named applicant arrived in Australia on 28 June 2008 on a student visa as a dependent.  The first named applicant applied for a further student visa as a dependent which was granted from 4 October 2010 to 15 March 2012.[3]

   [3] Delegate’s decision record dated 12 July 2017 at page 3.

4. The first named applicant then applied for, and was granted, a subclass 457 Temporary Work (Skilled) visa (‘subclass 457 visa’) on 7 August 2012 which was valid until 7 August 2016.  The first named applicant was then granted a series of bridging visas in late 2016.[4]

   [4] Delegate’s decision record dated 12 July 2017 at page 3.

5. The applicant claimed that he did not hold a substantive visa at the time of application, being 7 September 2016, due to factors beyond his control, namely the failure of his migration agent who failed to lodge an application for a substantive visa within the requisite time frame.

6. The delegate then noted that the failure of a migration agent or lawyer would not, alone, normally be grounds to find that the failure to hold a substantive visa was due to factors beyond his control. Ultimately, the Minister’s delegate was not satisfied that the applicant’s failure to have a substantive visa was the result of factors beyond his control. The delegate therefore concluded that they were not satisfied that the requirements of clause 457.211 of schedule 2 of the Migration Regulations 1994 (‘the Regulations’) were met.[5] Nor was the delegate satisfied that the requirements of clause 457.321 of scheduled 2 of the Regulations for the grant of a Temporary Business Entry (Class UC visa) met.[6]

   [5] Delegate’s decision record dated 12 July 2017 at page 3.

   [6] Delegate’s decision record dated 12 July 2017 at page 4.

7. The delegate then went on to consider the second to fourth named applicants and found that as the primary applicant did not satisfy the prescribed criteria for grant of a subclass 457 visa, the secondary visa applicants are therefore not members of the family unit of a person who holds such a visa.  Consequently, clause 457.321 was not met.[7]

   [7] Delegate’s decision record dated 12 July 2017 at page 5.

   Applicant’s affidavit filed on 16 June 2020

8. In the first named applicant’s affidavit filed on 16 June 2020, he gives evidence that he engaged a lawyer to file an application for review of the delegate’s decision which was filed ‘22 days after [his] substantive visa terminated’.[8]  The first named applicant further states that he was unaware that he was ‘illegal in this country for 22 days till this refusal’.[9]

   [8] Applicant’s affidavit sworn on 15 June 2020 and filed on 16 June 2020 at paragraph [6].

   [9] Applicant’s affidavit sworn on 15 June 2020 and filed on 16 June 2020 at paragraph [6].

9. At paragraphs [8] and [9] of his affidavit, the first named applicant further states:

   8.I hired another migration agent from Perth believing that he was a trustworthy agent and also because of his Mauritian background.

   9.I was again misled and cheated financially.  He lodged an appeal to AAT convincing my family that we have a successful case but later withdrew the case arguing that there is no ground.  He was paid for his service and never refunded the money.  Attached is the withdrawal notification from the AAT annexed as Annexure B.

10. The applicant then went on to say at paragraph [20], ‘I have talked to a friend and he proposed me to lodge an appeal to the Federal Circuit Court of Appeal’ (sic).

11. At Annexure B to the first named applicant’s affidavit is a letter from the Administrative Appeals Tribunal (‘Tribunal’) dated 19 March 2020 in which the Tribunal acknowledged receipt of advice from the applicants of 11 March 2020 informing that they wish to withdraw their applications for review.  The Tribunal went on to say:

    We have accepted your withdrawal.  Accordingly, we have decided that we no longer have jurisdiction to review the delegate’s decision.

    PROCEDURAL HISTORY

12. The applicant’s application filed in this court on 16 June 2020 seeks judicial review of a decision of the first respondent and of the second respondent.  The applicant also sought an extension of time within which to file the judicial review application.

13. Leaving aside the extension of time application, it is clear from the applicant’s own affidavit material that the application to the second respondent was, in fact, withdrawn by the applicants.  There is therefore no decision made by the second respondent which is the subject of an application to this court.

    First hearing on 9 March 2021

14. An order was made on 21 October 2020 that the matter be listed before a judge for a hearing as to the application’s competency.  On 9 March 2021, that application came before me.  The applicant did not appear.  After considering submissions made by the first respondent, and for the reasons then given orally, I dismissed the applicant’s application having found that the court lacked jurisdiction.  The applicant was ordered to pay the respondent’s costs in a fixed sum.[10]

    [10] Orders of Judge Mercuri dated 9 March 2021 (‘March 2021 orders’).

    Application in a case filed on 6 April 2021

15. On 6 April 2021, the applicants filed an application in a case in which they sought the reinstatement of the application dismissed by the March 2021 orders. That application was supported by an affidavit sworn on 18 March 2021 by the first named applicant and filed on 6 April 2021.

16. In his supporting affidavit, the first applicant gives evidence that he has suffered extreme depression since the start of this case.[11]  He further provided evidence about medical attention that he sought and received at or about the time of the hearing in March 2021.  I accept that evidence and note that the Minister concedes that the applicants have established a reasonable excuse for their non-attendance at the hearing on 9 March 2021.[12]

    [11] Applicant’s affidavit sworn on 18 March 2021 and filed on 6 April 2021 at paragraph [3].

    [12] Court transcript at page 4.

    Second hearing on 17 June 2021

17. The reinstatement application first came before me on 17 June 2021.  It was adjourned due to the unavailability of an interpreter.

    Third hearing on 7 September 2021

18. When the matter came before me again on 7 September 2021, an interpreter was again unavailable.  The applicants, however, indicated that they wished to proceed with the first applicant’s son speaking on their behalf.

19. In support of the reinstatement application, the first named applicant filed an affidavit in which he indicated that when the matter was listed on 9 March 2021, he had suffered a mental health issue and was admitted to hospital.[13]  It was for this reason that the applicants did not attend on that day.  It was further submitted that attempts were made to try and advise the court of the first named applicant’s situation.  As stated, this reason was accepted by the Minister.

    [13] Applicant’s affidavit sworn on 18 March 2021 and filed on 6 April 2021 at paragraphs [5] to [6].

20. In oral submissions before me, the first named applicant advised the court that he found himself in the current situation due to no fault of his own, but as a result of his representative not taking the appropriate steps to protect his position, notwithstanding taking payment for his services.[14]

    [14] Court transcript at pages 8 to 9.

21. The first named applicant went on to explain the circumstances in which he and his family migrated to Australia.[15]  He submitted that after coming here on a student visa with his wife, who at the time was studying hairdressing, he subsequently applied for a working visa sponsored by his employer.  He said that he obtained that visa through the assistance of a migration agent.  He further submitted that in 2016, when that visa was about to expire, he appointed a migration agent to assist him to renew his visa.  He said that he paid the migration agent’s fees and provided the necessary documents.

    [15] Court transcript at page 9.

22. He said that after the initial migration agent kept asking for more money, in 2017, the first named applicant appointed another migration agent to assist.[16]  They then received a rejection of the subclass 457 visa application.  The first named applicant received advice that they should withdraw the application for review and apply for a different visa.  He was then advised that they would be required to go overseas and apply for another visa and have a ban of three years.

    [16] Court transcript at page 9.

23. The first named applicant went on to state that his youngest son was born in Australia, attends primary school here and does not know Maruitian.  He further indicated that he (the first named applicant) is very anxious and has had to see his GP and a psychologist as a result of these proceedings.[17]

    [17] Court transcript at page 10.

24. The Minister opposed the application for a reinstatement on the grounds that whilst the court has a broad discretion in determining whether to reinstate an application such as this, and accepting that the applicants have established a reasonable excuse for their non-attendance on 9 March 2021, the court cannot be satisfied that the substantive application has a reasonable prospect of success.[18]  The basis of this submission is that in circumstances where the first applicant withdrew his application for review to the Tribunal, the only remaining decision which is the subject of the judicial review application to this court is the decision of the delegate of the Minister and that is not a decision in respect of which this court has jurisdiction.

    [18] Court transcript at pages 3 to 5.

25. It was ultimately submitted for the Minister that it would be futile to grant the application for reinstatement in circumstances where the substantive application was incompetent, and if reinstated, would remain incompetent.[19]

    [19] Court transcript at page 6.

    CONSIDERATION

26. Whilst the court has sympathy with the applicants in this matter, ultimately, this court’s jurisdiction is limited by the terms of the Migration Act 1958 (Cth).

27. In particular, section 474 of the Act relevantly provides that a privative clause decision is final and cannot be challenged. Section 474(2) defines a privative clause decision as a decision ‘of an administrative character made, proposed to be made, or required to be made, … under this Act or under a regulation or other instrument made under this Act … other than a decision referred to in subsection (4) or (5)’.  A decision of a delegate of the Minister of the type which the applicant seeks to challenge in this case is a privative clause decision so defined.

28. Moreover, section 476 of the Migration Act then goes on to set out this court’s jurisdiction in relation to migration decisions. Relevantly section 476(2) expressly provides that this court ‘has no jurisdiction in relation to any of the following decisions…’:

    (a)       a primary decision

29. A primary decision is defined in section 476(4) to mean ‘a privative clause decision or purported privative clause decision…’:

    (a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed …

30. The delegate’s decision made on 12 July 2017, and in respect of which the applicants take issue, is a Part 5 reviewable decision.  As such, it is a primary decision in respect of which this court does not have jurisdiction.  In this case, the only decision in respect of the applicants which has been made is the decision of the delegate of the Minister made on 12 July 2017.[20]

    [20] Annexure A to the applicant’s affidavit sworn 10 June 2020.

31. As indicated when the matter came before me on 9 March 2021, the applicant seeks to challenge a decision of a delegate of the Minister that is a Part 5 reviewable decision.   For the reasons given when the matter was first before me on 9 March 2021, this court does not have jurisdiction to hear and determine that decision.

32. In response, the applicant submitted that the only reason why they find themselves in this predicament is because they received poor legal advice and assistance, firstly from the initial lawyer who did not lodge their application for a visa on time, particularly in circumstances where the applicants had engaged this lawyer a couple of months prior to the expiry of their last valid visa.  The applicants say that they were then taken advantage of by a subsequent lawyer who advised them to withdraw their application for review to the Tribunal.

33. I have sympathy for the applicants’ plight.  Unfortunately, however, this court’s jurisdiction is not discretionary.  It is not within this court’s power to grant the applicants the ability to file an application for review to the Tribunal out of time, or indeed, to allow the applicants to apply for a different type of visa.

34. Reluctantly, I accept the submission made for the Minister that the applicants’ substantive application to this court is incompetent and if the application to reinstate were granted, it would remain incompetent.  In those circumstances, it would be futile to grant the application for reinstatement, notwithstanding that the first applicant had a reasonable excuse for not attending on the first occasion.

    CONCLUSION

35. For these reasons, I order that the applicant’s application for reinstatement be dismissed and that the applicants pay the first respondent’s costs to be fixed if not agreed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       11 May 2022

SCHEDULE OF PARTIES

MLG 2058 of 2020
Applicants
Fourth Applicant:	PURUSHOTTAMA BISSEUR Fourth Applicant