Gunathilake v Minister for Immigration

[2019] FCCA 896

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUNATHILAKE v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 896

Catchwords:
MIGRATION – Application to set aside an order due to non-appearance.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

MZYEZ v The Minister for Immigration and Citizenship [2010] FCA 530

Applicant: WEERASURIYA ARACHCHILAGE CHULAKA SUCHITHRA GUNATHILAKE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1127 of 2016

Judgment of: Judge McNab

Hearing date: 26 March 2019

Date of Last Submission: 26 March 2019

Delivered at: Melbourne

Delivered on: 26 March 2019

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Van Der Westhuizen

Solicitors for the First Respondent DLA Piper

ORDERS

1. The application in a case filed on 5 December 2018 be dismissed; and

2. That the Applicant pay the Respondent’s costs, fixed in the sum of $1440.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1127 of 2016

WEERASURIYA ARACHCHILAGE CHULAKA SUCHITHRA GUNATHILAKE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. On 30 May 2016, the Applicant filed an application in the Court seeking review of a decision made on 2 July 2015 of the then Migration Review Tribunal (‘the Tribunal’). The Tribunal had refused the application to grant a temporary business entry class UC subclass 457 temporary work visa (‘Visa’).

2. The Applicant sought review on the basis that the Tribunal constructively failed to exercise its jurisdiction:

   (i) The Tribunal did not give any proper weight to the fact that a nomination had been lodged.

   (ii) The Tribunal had made errors in law and has jurisdictional error.

   (iii) The Tribunal has failed to comply with rules [of] natural justice and has contravened the Migration Act 1958.

3. The application came before the court for final hearing on 11 July 2018, at which time the Applicant appeared with a legal representative. The Applicant applied to have the matter adjourned, which it was, to 31 October 2018. On 31 October 2018 the application was dismissed due to the Applicant’s non-appearance.

4. On 5 December 2018, the Applicant filed an application in a case seeking orders that the application be reinstated and a final hearing be scheduled. That application was supported by an affidavit affirmed on 5 December 2018, which provides, in summary that:

   1. I was unable to attend my final hearing on 31 October 2018;

   2. My wife was sick and I had to take her to receive medical treatment;

   3. I will supply a medical certificate in evidence of this;

   4. I request my case be reinstated.

5. The Applicant appeared before the court today representing himself. Mr van der Westhuizen appeared for the First Respondent.

6. The Applicant applied for an adjournment of the hearing of the application. He said he wanted the adjournment in order to have the opportunity to obtain proper legal representation. He said that he had approached lawyers and a barrister, but could not obtain representation at short notice. He explained that he had spoken to lawyers yesterday, being 25 March 2019.

Application to adjourn

1. There is no adequate explanation for the applicant’s failure to retain legal representation. This is his application: it was filed 5 December 2018 and he has had legal representation in this matter previously. The Applicant has had more than ample time to obtain representation to assist him on this day. Accordingly, I refuse the application for an adjournment.

Application to set aside orders of 31 October 2018

1. I now turn to the Applicant’s application to set aside the Orders of 31 October 2018. Rule 16.05(2)(a) of the Federal Circuit Court Rules provides that the Court may set aside orders made in the absence of a party. In accordance with well-established authority, in particular, the decision of Ryan J in MZYEZ v The Minister for Immigration and Citizenship [2010] FCA 530 at [7], the factors that the Court is required to consider are:

   (a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c)whether the applicant has a reasonably arguable prospect of success on the substantive application.

2. The Applicant’s affidavit gives evidence that he failed to attend on 31 October 2018 as he had to take his wife (whom he had married in May 2018 in Australia) to a doctor. He has not, however, produced any evidence of taking her to the doctor. He has previously adverted to obtaining evidence to support that contention, but has failed to do so and has not explained why somebody else could not have taken his wife to the hospital or what condition she was suffering. Accordingly, there is no adequate explanation for the failure to appear on 31 October 2018, especially considering the explanation given is not supported by evidence.

Judicial Error

1. In terms of the merits of the case, there is no apparent error in the decision of the Tribunal. The requirements of the Visa that the Applicant applied for include that there be an approved standard business sponsor and that a nomination made by that sponsor be approved. The employer’s nomination application was administratively finalised on 4 May 2015 because the associated sponsorship was refused as there was no approved sponsor, there was no valid nomination.

2. On 4 May 2015 the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant, via its representative, to advise him that his prospective employer did not have an approved nomination for him at the time. As a result of not having an approved nomination, his Visa application was unlikely to be successful.

3. Correspondence continued between the Applicant’s representative and the Department, however, on 10 July 2015, a delegate of the first Respondent refused the Visa application. The delegate found that the Applicant was not the subject of an approved nomination at the time that the Visa application was being decided and, therefore, was not satisfied that subclause 457.223(4)(a) of schedule 2 of the Migration Act 1958 (Cth) (‘the Act’) regulations was met.

4. The Applicant applied to the Administrative Appeals Tribunal (‘the AAT’) for review of the delegate’s decision on 31 July 2015. Letters dated 4 October 2015 and 30 March 2016 invited the Applicant to comment on the validity of the application. At that time the Applicant was advised that the AAT was of the view that the application for review was not valid. The AAT stated its reasons for this conclusion as:

   i)the Applicant was not identified in a nomination under s 140GB of the Migration Act 1958 (Cth) (“the Act”) that was approved or pending; and

   ii)there was no pending application for review before the AAT of either a decision not to approve the sponsor under s 140E or a decision not to approve the nomination under s 140GB of the Act.

5. The Tribunal considered correspondence from the Applicant’s representatives. The Tribunal made a decision on 2 May 2016 and found that it did not have jurisdiction to review a decision of the delegate. The Tribunal was not satisfied that the Applicant was either identified in an approved nomination or identified in a pending nomination under consideration by the Department at the time of the review application for the purposes of s 338(2)(d)(i) of the Act.

6. Further, the Tribunal was not satisfied that the employer had a new pending sponsorship approval application before the Department at the date of review. Absent a new nomination approval application in respect of the application, there was no jurisdiction for the AAT to consider the application.

7. The AAT found that the delegate’s decision was not a part 5 reviewable decision for the purposes of section 338(2)(d)(i) or (ii) of the Act.

8. In my view, there is no arguable claim that the Tribunal has failed to exercise its jurisdiction or that there is any failure to consider the claims made by the Applicant. There is no constructive failure to exercise jurisdiction, nor is there any failure to comply with the rules of natural justice. The Applicant and his representative were invited to comment on matters raised by the Tribunal and did so.

9. I accept the submissions of the Respondent that there was no pending review of the nomination reference at the time of the Tribunal’s decision, as set out at [24.1] of the submissions. I accept that in circumstances where there was a pending sponsorship application, rather than a nomination application, made before the application for review of the Visa decision was made, the AAT was correct to find that it did not have jurisdiction, pursuant to s 388(2)(d)(i) of the Act.

10. There was no evidence before the Tribunal that the Applicant was identified in a nomination by an approved sponsor at the time he applied for the review of the Visa refusal on 31 July 2015.

11. Whilst the respondent has not pointed to any prejudice that it might suffer if the application was granted, that of itself is not a ground for granting the application.

12. For these reasons, the court refuses the application to set aside the order of 31 October 2018.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  21 May 2019