Dong v Minister for Immigration

[2017] FCCA 355

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 355

Catchwords:
MIGRATION– Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.362B
Federal Circuit Court Rules 2001 r.13.03C(1)(e)

Applicant: RUI DONG

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 879 of 2016

Judgment of: Judge Vasta

Hearing date: 24 February 2017

Date of Last Submission: 24 February 2017

Delivered at: Brisbane

Delivered on: 24 February 2017

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Counsel for the Respondent: Ms Stoker

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 16 September 2016 be dismissed pursuant to r.13.03C(1)(e) of Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent's costs of and incidental to the proceedings fixed in the sum $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 879 of 2016

RUI DONG

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 16 September 2016 the Applicant, Rui Dong, seeks review of a decision of the Administrative Appeals Tribunal.  That decision of itself eventually affirmed a previous decision by the delegate for the Minister not to grant a further 457 visa. 

2. The chronology is that on 2 April 2015, the Applicant lodged an application for a long stay temporary business visa and the Department acknowledged receipt of that application on 24 March 2015. 

3. On 16 June 2015 the Department wrote to the Applicant and invited him to comment on information that was adverse to his application.

4. That information was that his prospective employer, Accounting Solutions Australia Proprietary Limited, did not have an approved nomination for him at the time of writing. 

5. About a month later, on 17 July 2015, the Applicant’s migration agent sent an email to the Department, indicating that a new nomination had been lodged. 

6. On 4 September 2015 the Applicant was notified that his application for the visa had been refused and the refusal was because he failed to meet the criteria in the subclause, which meant that there had to be an approved nomination in relation to the Applicant in place for the Applicant to meet the requirements for the grant of the visa.

7. The departmental decision also acknowledged that the Applicant’s migration agent had notified the Department of the lodgement of the second nomination application but, because at the time of the decision, there was no approved nomination in place, the Applicant did not and could not satisfy the requirements for the grant of the visa.  Upon receiving that information, the Applicant then applied for a merits review of the departmental decision before the Administrative Appeals Tribunal. That application was lodged and acknowledged by the Tribunal on 28 September 2015.

8. On 14 July 2016 the Applicant was invited to attend a hearing before the Tribunal, which was scheduled and the hearing was scheduled for 3 August 2016. 

9. The day before that hearing the migration agent sent an email to the Tribunal, which said:

   “Please note that the Applicant is no longer being sponsored by Accounting Solutions Australia Proprietary Limited and a new nomination has been lodged and is now pending.  Please find attached the acknowledgment letter for the newly lodged nomination.  For your reference, please also find attached the documents for the newly lodged nomination and visa application.  It is our respectful submission that the visa application was refused based on the refusal of the nomination and that the review applicant is subject to an approved nomination, which is now pending with the Department.”

10. The Applicant didn’t appear at the hearing on 3 August 2016.  It would seem that there was quite a deal of checking of the building in which the hearing was to appear to see if the Applicant was actually in the building but just had not been near the hearing room, but that was unsuccessful so there was no attendance. 

11. Now, because of that nonattendance the Tribunal is then guided by s.362B of the Migration Act 1958 (Cth) (“the Act”). That section applies if the Applicant is invited to appear before the Tribunal but does not appear before the Tribunal at the time and place at which the Applicant is scheduled to appear. In those circumstances, the Tribunal may make a decision to dismiss the proceedings.

12. The Tribunal did, in a proper exercise of its discretion, dismiss the proceedings.  However if the Tribunal dismisses the application, the Applicant may, within 14 days after receiving notice of the decision, apply to the Tribunal for reinstatement of the application. 

13. If there is such an application, the Tribunal must

    a)if it considers it appropriate to do so reinstate the application and give directions it considers appropriate in the circumstances by written statement or

    b)confirm the decision to dismiss the application by written statement under s.368.

14. The Tribunal did notify the Applicant that it had dismissed the application and noted that its reasons were that:

    “The review applicant was invited under section 360 of the Migration Act to appear before the Tribunal on 3 August 2016 but did not appear at the scheduled time and place. As no satisfactory reason for the nonappearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

15. That decision and those reasons were supplied to the Applicant later that day, 3 August 2016, with an information sheet that was titled, “Information about Dismissal of Applications”.  That included this paragraph:

    “Within 14 days of receiving notice of the dismissal decision, you may apply in writing for reinstatement of the application.  In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.”

16. On 16 August 2016, which is within the 14 days, the Applicant’s migration agent sent an email to the Tribunal which simply said:

    “I’m writing in response to the decision made on 3 August 2016 to dismiss the review application and humbly request the review application to be reinstated.  Please advise the relevant process.”

17. On 19 August 2016, the Tribunal confirmed its decision to dismiss the application.  A reading of the decision of the Tribunal does give a recitation of the facts that I have just spoken of, but then says this at paragraph 7:

    “The Applicant provided no explanation for his failure to attend the hearing.  The Tribunal is therefore unable to be satisfied that the Applicant had a reasonable explanation for failing to attend the hearing.”

18. Paragraph 8:

    “The visa application was refused on the basis that the Applicant did not meet the criteria that a nomination by Accounting Solutions Australia Proprietary Limited was refused.  The Applicant provided evidence that a new nomination application by HPG Consultant Proprietary Limited was lodged on 2 August 2016, the day before the scheduled hearing.  In order to decide whether to postpone its decision to allow time for the Department to determine the nomination application, the Tribunal would have had to question the Applicant with a view to satisfying itself that the new nomination application was a bona fide application and not merely a delaying tactic. By not attending the hearing the Tribunal did not have that opportunity and is therefore not minded to postpone its decision.”

19. Paragraph 9:

    “In these circumstances, the Tribunal does not consider it appropriate to reinstate the application for review.”

20. In giving those reasons, the Tribunal has acted in accordance with the legislation to which I have previously referred.  The Applicant has come to this Court with one ground of review, which simply states:

    “There is a jurisdiction error in the decision made by Administrative Appeals Tribunal that they did not take into consideration there is pending nomination and dismiss the application for review.” 

21. When one has a look at the paragraphs that I have just recited, one can see that there is absolutely no merit in that ground.  The Administrative Appeals Tribunal did take into consideration that there was a pending nomination but because the Applicant did not appear there was no way in which they could ascertain whether that was a bona fide nomination or not. 

22. Therefore, there are no grounds for this Court to entertain any notion that there has been a jurisdictional error.  The Tribunal has referred to all relevant facts and has followed all relevant legislation.

23. The Applicant has not appeared today, notwithstanding that he had been given notice of the time and place of this hearing.  There has been no contact between the Applicant and the Court or the Applicant and the Minister. 

24. When the matter first came before this Court as a first court date, His Honour Judge Jarrett had made directions for the Applicant to file submissions.  He did not do so. 

25. Today the Court waited an extra 15 minutes before calling the matter on in hopes that the Applicant would appear but he did not.  In all the circumstances, it is a matter for me as to which way I proceed.

26. I am of the view that it is proper for the Court to proceed, pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, and hear the application on the merits. 

27. For the reasons I have previously pronounced, I find that there is no jurisdictional error.  I dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 28 February 2017