Da Costa Gomes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2026
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Da Costa Gomes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2026
File number: PEG 69 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 27 August 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – extension of time application – 1 day delay – adequate explanation for delay – no prejudice if extension granted – no arguable case of jurisdictional error – extension of time refused. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.05
Migration Act 1958 (Cth), ss 65, 359, 360, 363, 368, 477, 479, 486Migration Regulations 1994 (Cth), reg 5.19 and cl 187.233 of Schedule 2 to the Regulations
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 23
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
The Trustee for Panpal Unit Trust (Migration) [2020] AATA 4050
Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Number of paragraphs: 78 Date of hearing: 24 August 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Flynn Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 69 of 2021 BETWEEN: FERNANDA DA COSTA GOMES
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
An accurate summary of the background to this matter is provided in written submissions filed on behalf of the first respondent in this matter (the “Minister”) dated 10 August 2021 at [1] to [13]. The Court has reviewed the Court Book (“CB”) in detail and adopts that summary as its own. With some additions and alterations that summary provides, relevantly, as follows.
The applicant is a citizen of Brazil (by birth) and a citizen of Italy (by descent) (CB 11 & 21-22). She arrived in Australia as the holder of a Student visa in June 2014 (CB 27 & 29). She completed a Diploma of Hospitality in Australia in September 2015 (CB 15).
On 11 November 2016, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 10-20). Her nominated occupation was Café or Restaurant Manager with the related employer’s name listed as Pancakes at Carillon (CB 14-16).
On 6 April 2018, the Department of Home Affairs invited the applicant to comment on the following information (CB 58-61):
Nomination refused
The nomination submitted to the department by The Trustee for Panpal Unit Trust listing you as their Nominee has been refused. This means that your visa application cannot be approved.
The applicant did not provide a response to the invitation to comment.
On 8 June 2016, a delegate of the Minister refused to grant the applicant the visa (CB 68-70). The delegate was not satisfied that the applicant met cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant was the subject of an approved nomination.
On 20 June 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision. She did so with the assistance of a migration agent (CB 71-72).
On 25 June 2018, the Tribunal sent an email to the applicant’s migration agent acknowledging the application and attaching a letter to the applicant asking her to provide any material or written arguments she wished the Tribunal to consider (CB 73-76).
In a separate proceeding (on 28 September 2020), the Tribunal affirmed a separate delegate’s decision made on 6 April 2018 that rejected The Trustee for Panpal’s Unit Trust’s application for approval of the nomination of a position in Australia under reg 5.19 of the Regulations: The Trustee for Panpal Unit Trust (Migration) [2020] AATA 4050.
On 18 February 2021, the Tribunal sent an email to the applicant’s agent attaching an invitation for the applicant to attend a hearing (CB 92-95). The invitation noted the time and date of the hearing and asked the applicant to complete the enclosed ‘Response to hearing invitation’ form and return it to the Tribunal within 7 days of receipt of the letter. The letter noted that the applicant should provide all documents she intended to rely on at least 7 days before the scheduled hearing. The applicant was advised that the hearing was scheduled for 26 March 2021 and would be conducted via telephone.
On 22 February 2021 the Tribunal sent a further email to the applicant’s agent attaching another letter to the applicant (CB 96-99). That letter was an invitation to comment or respond to the following information (CB 98):
The application for approval of the nominated position made by The Trustee for Panpal Unit Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
The invitation to comment requested a response by 9 March 2021 (CB 98). The Tribunal also advised as follows:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant did not provide a response to the Tribunal.
On 11 March 2021, the Tribunal affirmed the decision not to grant the applicant the visa (CB 104-107).
On 16 April 2021, the applicant applied for judicial review of the Tribunal’s decision in this Court.
The applicant filed her application 1 day outside of the 35 day time limit specified in s 477 of the Migration Act 1958 (Cth) (the “Act”). Accordingly, the applicant requires an extension of time to pursue these proceedings.
This judgment addresses whether the applicant should be granted an extension of time within which to file her substantive application for judicial review. For the reason that follow, the Court is not satisfied that an extension of time should be granted. The materials before the Court include the substantive application for judicial review dated 15 April 2021 (and filed on 16 April 2021), a Court Book numbering 108 pages (marked as Exhibit 1), and written submissions filed by the Minister on 10 August 2021.
At the hearing, the applicant appeared without legal representation. The applicant confirmed to the Court that she had received a copy of the Court Book and the Minister’s written submissions.
CONSIDERATION - EXTENSION OF TIME APPLICATION
Section 477(2) of the Act provides:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
(b)the Federal Circuit is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this matter the applicant requested an extension of time in writing and explained why that extension should be granted. Section 477(2)(a) of the Act is thus satisfied. In those circumstances, the Court must determine whether it is “in the interests of the administration of justice” to grant an extension of time: s 477(2)(b) of the Act.
Noting that the applicant was unrepresented, the Court explained to her that the matters it may consider in this regard are not limited. However, as outlined in the decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Court will usually consider the following factors when determining whether an extension of time should be granted:
(a)the length of delay and any prejudice to the parties;
(b)whether the explanation for the delay is “adequate”; and
(c)whether the proposed substantive application for judicial review has merit.
The Court notes that the applicant’s affidavit (which accompanied her substantive application) does not explain the delay or why it was in the interests of the administration of justice for an extension of time to be granted. While the applicant is required to do so pursuant to r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth), the Court can dispense with compliance of this requirement if deemed appropriate. The Court does so here.
The Court invited the applicant to address each of the factors outlined above and to highlight “anything else” she considered relevant to her application for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Delay and Explanation
As outlined above, the statutory time period within which the applicant can seek judicial review in this Court is 35 days from the date of the decision: s 477(1) of the Act. Here, the Tribunal made its decision on 11 March 2021 and notified the applicant of its decision on 15 March 2021 (CB 101-108). Section 368(2) of the Act provides that the decision is taken to be made on the day the written statement is made. The Tribunal made its written statement on 11 March 2021 (CB 104-108).
The applicant was thus required to file her application for judicial review on or before
15 April 2021. The applicant lodged her application for review on 16 April 2021. This is a delay of one day.
The delay here is minor. This weighs in favour of granting the extension of time.
In relation to “why” the substantive application was filed one day late, the applicant writes:
1.I thought the timing for appeal was based on the date I received the information not the date of decision (from my Agent).
2.I only find out the fee structure has changed and I need to gather the information to apply for a deduction of fees.
The applicant says she misunderstood that the time limit commenced from the date of decision and not the date she received the information. Ignorance of the time limit itself is not an excuse regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319.
The applicant also suggests that her substantive application “was delayed” because she needed to seek a reduction of the Court fees. The applicant has not provided any corroborating evidence that she would be unable to pay the Court fees and, in the absence of any further particulars, this is arguably not a sufficient explanation for the delay in filing her application: Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279.
While arguably “problematic”, the Court notes that the applicant is unrepresented and, relevantly, that the Tribunal waited four days before sending its decision to the applicant. This clearly caused some confusion for the applicant in determining when she was required to file the substantive application in this Court.
In the circumstances, the applicant’s reasons for the delay in filing her substantive application are understandable.
This too weighs in favour of granting the extension of time.
Prejudice
There is a public interest in the finality of litigation: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 23 at [120]. However, the Minister agrees that there will not be any prejudice, per se, if the substantive application in this matter is accepted, albeit one day late.
The Court agrees.
This weighs in favour of an extension of time being granted.
Merits
It is now well settled that the Court should not grant an extension to pursue an application which has no arguable prospect of success. To do so would be futile and would not be in the interests of the administration of justice: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16].
When determining whether the proposed substantive application has “merit”, the Court must do so at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. Importantly, the applicant need only demonstrate that there is an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
In this regard, the Court will itself remain astute and alert to whether there is a reasonably arguable case: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
The Tribunal’s Decision
In determining whether the substantive application for judicial review has “merit”, it is useful to first summarise the Tribunal’s decision.
The Tribunal decision is five pages in length and spans 20 paragraphs. One page consists of an extract of cl 187.233 of Schedule 2 to the Regulations.
The Tribunal began by identifying the visa under review (at [1]-[2]). It then outlined the criteria for the grant of the visa and the relevant visa stream (at [3]-[4]).
The Tribunal then noted that the delegate had refused to grant the applicant the visa because the applicant was not the subject of an approved nomination. That is, the nomination application made by the Trustee for Panpal Unit Trust for the approval of the nominated position of Café or Restaurant manager was not approved (at [5]).
The Tribunal also noted that the applicant was represented by her registered migration agent throughout the Tribunal proceeding (at [6]).
The Tribunal then identified that the issue before it was whether there was “an approved nomination” (at [8]).
The Tribunal then summarised cl 187.233 of Schedule 2 to the Regulations and detailed the criterion for the grant of the visa as follows (at [9]-[10]):
Nomination of a position
9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
10. In addition, this criterion also requires that:
•the person who will employ the applicant is the person who made nomination
•the nomination has been approved and has not been subsequently withdrawn
•there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal noted that on 19 February 2021, it had invited the applicant (pursuant to s 359A of the Act) to provide comments in writing on adverse information – being a differently constituted Tribunal’s decision to affirm the decision of a delegate of the Minister to refuse the nominator’s application (at [11]). As outlined by the Tribunal, the invitation explained that the information was relevant to the review because it is a requirement for the visa that the applicant be the subject of an approved nomination (at [11]). The invitation was sent to the applicant’s last provided address and advised her that if a response was not provided by 9 March 2021, the applicant might lose any entitlement to appear before the Tribunal (at [12]). In that regard, the Tribunal noted that the applicant had not provided a response by 9 March 2021 and did not seek an extension of time within which to do so (at [13]). In the circumstances, the Tribunal determined that the applicant was not entitled to appear before the Tribunal and the Tribunal had no power that would allow it to permit her to appear: the Act, ss 359C, 360(3) and 363A (at [13]).
In the circumstances, the Tribunal proceeded to make a decision without taking further steps to obtain comments from the applicant (at [14]).
The Tribunal noted that the nominator’s nomination application had been refused by the Department (at [15]). As the applicant’s application for the visa was related to that nomination application, the applicant did not satisfy cl 187.233(3) of Schedule 2 to the Regulations (at [15] and [16], citing Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (“Singh”)).
The Tribunal noted that, because there was no approved nomination for the applicant’s visa application and the nomination was not (and could not then be) approved, the applicant could not overcome this issue to satisfy cl 187.233 of the Regulations (at [17]).
The Tribunal concluded that cl 187.233(3) of the Regulations was not met (at [18]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [20]).
Proposed Application for Judicial Review
In her proposed application for judicial review filed on 16 April 2021, the applicant provides two “grounds of review” as follows (without alteration):
1. I am appealing this decision based due to the original decision that the delegate refused to grant the visa was incorrect.
2. I believe that under cl 187.233(3) of schedule 2 to the regulation that the position of manager should have been approved and did not meet guidelines.
Noting that the applicant was unrepresented, the Court explained to her that the only issue before the Court was whether there was “an arguable case” that the Tribunal fell into jurisdictional error. In this regard, the Court gave the applicant the opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, migration decisions of this sort most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294 at [207]- [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision when assessing whether there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that, in effect, she had two primary concerns. The first related to her view that the Tribunal did not properly assess the evidence before it in relation to the nominated position of café manager. The second was that her previous employer “no longer existed” and she was now faced with a difficult (and clearly upsetting) situation.
In relation to the applicant’s first concern, the Court explained to the applicant that the Court could not assist her as the Court had no power to review the Tribunal’s decision in relation to the nomination. As counsel for the Minister correctly explained to the applicant, the applicant is, in effect, saying that that the Tribunal should have approved the nomination under reg 5.19 of the Regulations and the Court should find that the Tribunal erred by not doing so. Unfortunately, that argument cannot succeed because that decision to refuse to approve the nomination was the subject of a different Tribunal decision (The Trustee for Panpal Unit Trust (Migration) [2020] AATA 4050) and that decision is not subject to review by this Court in relation to the current application. There is no application on foot seeking judicial review of the decision in The Trustee for Panpal Unit Trust (Migration) and, as such, there cannot be any collateral challenge to that decision in the current proceedings: as per ss 479(a) and 486C(2)(a) of the Act.
In relation to the applicant’s second concern, while the Court is, of course, sympathetic, for the reasons that follow, the concerns raised do not address the issue of jurisdictional error on the part of the Tribunal.
Proposed Ground 1
The applicant’s first proposed ground states:
1.I am appealing this decision based due to the original decision that the delegate refused to grant the visa was incorrect.
In relation to ground 1, it is arguable that the applicant’s concerns relate solely to a decision of the delegate. In this regard, the Court accepts the Minister’s position (as detailed at [26] in written submissions dated 10 August 2021) that the applicant has applied under s 476 of the Act for judicial review of the Tribunal’s decision. Section 476(2) of Act makes it clear that this Court has no jurisdiction in relation to a primary decision. The decision of the delegate on 8 June 2018 was a ‘primary decision’ within the meaning of s 476(4)(a). As such, in considering the current application for judicial review, the Court has no power to make a ruling on the delegate’s decision of 8 June 2018. The Court is limited to considering whether there was any error in the Tribunal’s decision dated 15 March 2021.
The applicant’s first proposed ground of review does not raise an arguable case of jurisdictional error on the part of the Tribunal.
Ground 1 thus fails.
Proposed Ground 2
The applicant’s second proposed ground of review states:
2.I believe that under cl 187.233(3) of schedule 2 to the regulation that the position of Manager should have been approved and did not meet guidelines.
Although not entirely clear, it is arguable that what the applicant is arguing here is that the Tribunal “erred” – in that it acted “irrationally” or “illogically” – by not approving the position of manager.
In relation to the Tribunal’s decision in The Trustee for Panpal Unit Trust (Migration) [2020] AATA 4050, the Court repeats what it said above at [56] about what is and is not on review in this Court for the purposes of the current application. This Court cannot review the Tribunal’s decision to refuse the nominator’s application for approval of the nominated position: the Act, s 479(a). The nominator’s decision is not under review here. The nominator had the right to apply for review of the Tribunal’s nomination decision but did not do so.
In relation to any concerns about illogicality the Court notes the Minister’s written submissions as follows:
30. … if the applicant is asserting by this ground that the Tribunal erred in finding that cl 187.233(3) was not satisfied, then the ground cannot succeed because the Tribunal’s finding and decision was a logical and rational decision open to it on the evidence. It was, on the evidence before the Tribunal, the only decision logically open to the Tribunal.
31. Clause 187.233(3) requires that the Minister has approved the nomination for the position. It is a mandatory criterion. If the Minister has not approved the nomination the primary criteria for the visa will not be met and a decision maker must not grant the visa: see sub-s 65(1)(b) of the Migration Act.
32. The Tribunal found that the Minister had not approved the nomination by the Trustee of the Panpal Unit Trust for the applicant’s visa application [at 15].
33. The Tribunal went onto decide that because the nomination had not been approved the applicant could not meet the criteria of cl 187.233. This was the only conclusion open to the Tribunal on the facts before it. It was a logical, rational and reasonable decision.
The Court agrees with the Minister in this regard.
As explained to the applicant at the hearing, the Tribunal was not “reviewing” the nominator’s decision and the nominator’s decision is not relevant on review here. The Tribunal could not overturn the nominator’s decision in light of the information before it – information that showed, unequivocally, that the sponsor’s nomination application had failed. Unfortunately, while the Court sympathises with the applicant in relation to her concerns for her future, it cannot be said here that the Tribunal acted irrationally or illogically. The Tribunal took into account all of the evidence that was necessary for it to determine whether the applicant met the relevant visa criteria. Unfortunately, once it was apparent that the nominator’s application had been denied, the Tribunal had no choice but to affirm the delegate’s decision relating to the refusal of the applicant’s visa.
The Tribunal’s approach and conclusions were entirely open to it on the evidence. Indeed, they were the only conclusions open to it.
Ground 2, accordingly, fails
The applicant’s proposed grounds have no merit.
This weighs heavily against granting an extension of time.
The Court has also considered for itself whether any error arises in the Tribunal’s decision. In that regard, it is noted that the applicant has not claimed that she was treated “unfairly” or that the Tribunal adopted an approach to the determination of the issues before it that disadvantaged her. The Court accepts that to be the case. The applicant was given ample opportunity to present evidence that would strengthen her case. She did not do so. No issues in relation to procedural fairness arise on the facts of this case.
The Court has been unable to identify an arguable case of jurisdictional error in the Tribunal’s decision or arising from the materials before the Court.
In any event, even if the Court did grant the extension of time and found an error in the Tribunal’s decision, the applicant would still be unable to remedy the fact that she is not the subject of an approved nomination. On her own evidence before this Court, the nominator no longer exists and the Tribunal would be bound to affirm the decision under review in any event. Clause 187.233(3) of Schedule 2 to the Regulations requires the applicant to be the subject of an approved nomination relating to the position identified in the visa application at the time of the decision. The application cannot be assessed against a new nomination application subsequently lodged by the employer: Singh at [88]-[90]. As the nominator’s nomination application was refused by the delegate, the appeal of that decision to the Tribunal was unsuccessful and there is no evidence of a judicial review application being filed, on remittal of the matter to the Tribunal, the applicant could never satisfy cl 187.233 of the Regulations. Remittal would thus be futile.
This weighs heavily against granting the extension of time.
CONCLUSION
In this matter the substantive application for judicial review was filed only one day late. The explanation for that delay is, contextually, sound and no prejudice would arise if the application were now accepted. These factors all weigh in favour of the Court granting the applicant’s request for an extension of time in this matter. However, the lack of an arguable case of jurisdictional error on the part of the Tribunal weighs significantly against granting an extension of time.
The applicant has failed to satisfy the Court that it is in the interests of the administration of justice for an extension of time to be granted.
Accordingly, the request for an extension of time is refused.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 August 2021
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