Fernandez v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1170

FEDERAL COURT OF AUSTRALIA

Fernandez v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1170

MIGRATION – application for extension of time to file and serve notice of appeal – no issue of principle – application dismissed

FERNANDEZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1218 OF 2005

HILL J
SYDNEY
3 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1218 OF 2005

BETWEEN:	XAVIER FERNANDEZ & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	3 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time to file and serve the notice of appeal be dismissed.
2. The applicant pay the respondent’s costs of the application, assessed by agreement in the sum of $500.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1218 OF 2005

BETWEEN:	XAVIER FERNANDEZ & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	3 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore - revised)

1. This is an application for extension of time to file and serve a notice of appeal from the judgment of the Federal Magistrates Court which dismissed the applicant’s application for review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 11 March 2005. 

2. The applicant and his family were applicants for a business entry (class UC) visa.  After coming to Australia in 2004 application was made for a subclass 457 visa.  The criterion relevantly to be satisfied both at the time of decision by a delegate of the respondent Minister or at the time the Tribunal made a decision was that the applicant be effectively sponsored by a business sponsor who was approved under regulation 1.20D of the Migration Regulations.  It is also a requirement that the visa application specify the name of that employer.

3. The application, made through a firm of lawyers, specified as the sponsoring employer: The Dish Cafe Restaurant Bar.  Because that employer had not been pre-qualified, it was necessary for it to obtain specific approval.  That approval was refused by a delegate and I understand an appeal against that refusal before the Tribunal was likewise unsuccessful.  Later the applicant noted that Cronulla Catering Co Pty Ltd was his new employer and that it was seeking to be approved as a sponsor.

4. After the delegate had refused the application, the applicant referred the decision to the Migration Review Tribunal.  The Tribunal pointed out to the applicant that it was unable to find for him in the light of the non-approval of the sponsor and invited comment.  There was no response and the Tribunal proceeded with its review without hearing from the applicant.  The applicant then sought judicial review from a Federal Magistrate.  That application was heard on 27 June 2005 and a judgment adverse to the applicant was given.  It would seem that the Magistrate's decision was not reduced to writing until around 13 July 2005, that being the date which appears upon it.

5. The applicant then sought to appeal to this Court, filing an application out of time (so far as the original judgment was handed down on 27 June 2005) on 21 July 2005.  There is no doubt that were the appeal not futile I would, given the shortness of time in which the filing was late, give leave to the applicant to appeal.  I have read carefully the decision of the learned Magistrate. 

6. In finding that there was no jurisdictional error, the Magistrate pointed out that for the applicant to succeed, he had two problems to overcome.  The first was that the sponsor in his application, The Dish Cafe Restaurant Bar, was never approved under the regulations as being a business sponsor.  The second was that he could not rely upon the second nominated sponsor, Cronulla Catering Co Pty Ltd because that was not the nominated sponsor in the application that was before the Tribunal.  There was no ability within the same application to exchange sponsors and indeed, as I understand the matter, it was necessary for the applicant to be working for The Dish Cafe Restaurant Bar for him to succeed in the application if The Dish Cafe Restaurant Bar was in fact registered.

7. Like the learned Magistrate, it seems to me that the Tribunal's decision was not only open to it, but correct.  More significantly, there was no jurisdictional error which the applicant was able to demonstrate which would entitle the learned Magistrate to set aside the Tribunal's decision.  The applicant has been unable to indicate to me at all any reason why what the Magistrate said in his reasons was incorrect.  In these circumstances. it seems to me to be futile for the Court to grant an extension of time to file and serve a notice of appeal when the appeal itself must be unsuccessful.

8. Accordingly, I would dismiss the application and order the applicant to pay the respondent’s costs of it, assessed by agreement in the sum of $500.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            23 August 2005

The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 August 2005
Date of Judgment:	3 August 2005