Hombrebueno v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 335
•10 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hombrebueno v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 335
File number(s): SYG 132 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 December 2021 Catchwords: MIGRATION – Application to extend time for applying for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal that it did not have jurisdiction to review a decision not to grant a 457 visa – whether adequate explanation given for delay in applying for remedies – whether there is any merit in grounds of substantive application – application for extension of time dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Sch 2, Pt 2
Migration Act 1958 (Cth), ss 5, 140E, 140G, 140GB, 140M, 338, 476, 477(1), 477(2)
Migration Regulations 1994 (Cth), regs 1.03, 2.72, Sch 2, cl 457.223Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Division: General Number of paragraphs: 37 Date of hearing: 3 December 2021 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the First Respondent: Ms S Wright of Mills Oakley, by telephone ORDERS
SYG 132 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVA MARIE HOMBREBUENO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
2.The application made pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act in relation to the decision made by the second respondent on 27 October 2017 is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $3,930.
THE COURT NOTES THAT:
4.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
INTRODUCTION
On 17 January 2018 an application was lodged with this Court purportedly on behalf of the applicant, a national of the Philippines, for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision made by the second respondent (Tribunal) on 27 October 2017 affirming a decision not to grant the applicant a Long-Stay Temporary Business visa (457 visa). I say the application was “purportedly” filed by the applicant because the applicant says the application was filed without her knowledge.
BACKGROUND
On 27 May 2014 the applicant applied for a 457 visa. To have been entitled to the grant of a 457 visa the applicant had to meet the requirements of one of two alternative streams identified in cl 457.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant is the “standard business sponsor” stream in cl 457.223(4), which provided as follows:[1]
The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75 . . .
[1] Class 457 of Schedule 2 was repealed with effect from 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (clause 2(1) and Schedule 1, Part 1, item 167), but, under the transitional item provision in item 6702 of Schedule 13 to the Regulations, the repeal takes effect only in relation to visa applications made on or after that date.
Subsection 140GB(1) of the Act provides that an “approved work sponsor” may nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to, among other things, the applicant’s, or proposed applicant’s, proposed occupation. The expression “approved work sponsor” is defined in s 5 of the Act as a person who has been approved by the Minister under s 140E of the Act in relation to a class prescribed by the Regulations for the purposes of s 140E(2) of the Act, and whose approval has not been cancelled under s 140M of the Act or has otherwise ceased to have effect under s 140G of the Act. “Standard business sponsor” is defined in reg 1.03 of the Regulations to mean an “approved sponsor” who has been approved “in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act”. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of s 140E(2) if prescribed criteria are satisfied.
In her form of application, which was lodged by a migration agent, Mr Hugo, the applicant identified “MPJEL Care Pty Ltd” (MPJEL) as her “sponsoring employer”.[2] Sometime before 8 October 2016 MPJEL had been approved as a standard business sponsor.
[2] After 3 December 2016 MPJEL changes its name from MPJEL Care Pty Ltd to “Meaningful Care Pty Ltd” - affidavit of Mr J T Pipolo, [5]
On 2 July 2015 the Department of Immigration and Border Protection (Department) (as the Department of Home Affairs was then known) sent a letter to the applicant’s migration agent stating that MPJEL did not have an approved nomination for the applicant and, for that reason, the applicant’s application was unlikely to succeed. The Department identified a number of options available to the applicant, one of which was to provide information the applicant thought would be relevant to the information conveyed by the letter. On 13 April 2016 the Department invited the applicant to provide information in relation to her application for a 457 visa.
On 8 October 2016 a delegate of the Minister cancelled MPJEL’s registration as a standard business sponsor.[3]
[3] Affidavit of Mr J T Pipolo, annexure JTP-1, page 8
On 13 October 2016 the Department invited MPJEL to comment on information in relation to the applicant’s application for a 457 visa. That email is not in evidence, but is referred to in a letter dated 9 November 2016 Ms Synthia Restar, a person who described herself as a director of MPJEL, sent to the Department. In that letter Ms Restar stated she attached an application MPJEL made to the Tribunal on 8 October 2016 to “review the current decision made by the NSW Sponsoring Monitoring Unit (SMU) dated 19 September 2016”. Ms Restar requested the Department “wait for further review of our current SBS situation before further decision to our pending on lodged nominations and visa applications”. The evidence does not identify the decision of 19 September 2016, but it may reasonably be supposed it is a decision not to approve MPJEL’s nomination of the applicant.[4]
[4] That a decision was made on 19 September 2016 is suggested in the screenshot that is at page 8 of the attachments to the affidavit of Mr J T Pipolo.
On 14 November 2016 the Department sent a letter to the applicant’s migration agent again noting that MPJEL does not have an approved nomination for the applicant, and inviting the applicant to provide comments in relation to that information. On 11 January 2017 the Department sent another letter to the applicant’s migration agent noting that “[y]our prospective employer, MEANINGFUL CARE PTY LTD, does not have an approved nomination for you at this time”, and invited the applicant to provide comments in relation to that information.
On 26 January 2017 the applicant’s migration agent, Mr Hugo, sent an email to the Department in which he “again confirm[ed] that our office is no longer acting for” the applicant. Mr Hugo asked the Department to remove his contact details and noted that, if the Department wished to contact “Ms Tagab [sic] directly, please use her email address” which Mr Hugo specified. The email address is a Gmail address containing the applicant’s name (applicant’s notified address).
On 10 March 2017 a company called “Occupational Technical & Research Centre Pty Ltd” (OTRC) applied to be approved as a standard business sponsor but, on 10 April 2017, a delegate of the Minister refused that application.[5] By letter dated 10 April 2017 sent to the applicant’s notified address, the Department informed the applicant that her prospective employer, OTRC, did not have an approved nomination for the applicant, and invited the applicant to provide comments.[6]
[5] Affidavit of Mr J T Pipolo, [15]
[6] CB75
On 27 June 2017 a delegate of the Minister decided not to grant the applicant the 457 visa on the ground that the applicant was not the subject of an approved nomination.
On 4 July 2017 the applicant applied to the Tribunal for review of the delegate’s decision. On 14 August 2017 the Tribunal decided (first Tribunal decision) it did not have jurisdiction to determine the application for review because the delegate’s decision was not a Part 5-reviewable decision within the meaning of s 338(2) of the Act. The Tribunal so decided because the only circumstances in which a decision to refuse to grant a 457 visa could have been a Part 5-reviewable decision within the meaning of s 338 of the Act is if s 338(2)(d) applied. That paragraph provided:
A decision . . . to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
. . . .
(d)where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The Tribunal concluded as follows:[7]
Accordingly, such a decision is only reviewable where, at the time the review application is made, either:
•the visa applicant is identified in a nomination under s.140GB by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination, but does not include a nomination that has been refused with no review pending of that refusal, or a nomination that has expired (s.338(2)(d)(i)); or
•there is a pending application for review of a decision not to approve the standard business sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB (s.338(2)(d)(ii)).
In this case, at the time of the application for review the applicant was no [sic] identified in a nomination under s.140GB that was approved or pending nor was there pending review of a decision not to approve the sponsor or a pending review of a decision not to approve the nomination.
[7] CB104, [4], [5]
On 19 September 2017 the applicant purported to apply again to the Tribunal for a review of the delegate’s decision. On 27 October 2017 the Tribunal decided it did not have jurisdiction because the Tribunal had already affirmed the delegate’s decision, and the Tribunal said it did not have jurisdiction to review a delegate’s decision twice (second Tribunal decision).
PRINCIPLES
Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied.[8] First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
[8] I repeat her what I said in BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63, at [16]-[20]
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[9]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[9] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[10] Further:[11]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[10] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[11] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[12] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[13]
[12] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
[13] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62]
HEARING BEFORE THIS COURT
At the hearing before me the applicant, who is not legally represented, said she was unaware that any application was filed in this Court on her behalf. The applicant said that what purports to be her signature on the application, and on the affidavit that was filed with the application, is not her signature, but appears to be a copy someone made of her signature. The applicant said that her “migration agent”, whom she identified as “Synthia Restar”, had abandoned her. I asked the applicant what it was she would want me to do. The applicant said she wanted to know if there was anything she could do to start again. I asked whether she was asking for an adjournment, or at least more time. The applicant said she would like more time, but she was unable to say how any additional time would be useful to her. I decided I would proceed on the basis that the applicant was seeking an adjournment, but I would reserve my decision on that application and consider such application after I heard the merits of the applicant’s application for an order under s 477(2) of the Act.
APPLICATION FOR ADJOURNMENT
After some questioning from me, the applicant said she appeared at the first court date before the Court on 15 February 2018. Thus, even if, as the applicant stated to me, the applicant was not aware that the application commencing this proceeding had been filed on her behalf, and she did not sign the application or supporting affidavit, the applicant was aware of the existence of the proceeding since at least 15 February 2018. The applicant also informed me that she came to Court on 31 October 2018 on the understanding that her application had been listed for hearing on that day. (On 15 February 2018 the application had been listed for hearing before me on 31 October 2018, but the hearing had been vacated before that day.) Further, on 17 August 2020 the applicant filed with the Court a notice of address for service.
The applicant also informed me she is unaware of what had occurred before the Department, or before the Tribunal. I am prepared to assume the applicant is so unaware. The applicant, however, has been aware of this proceeding since at least 15 February 2018, and, therefore, she has had almost four years to understand the proceeding and make decisions in relation to it. The applicant’s ignorance, therefore, is not an adequate explanation for not being ready to proceed with the hearing. Further, the applicant was not able to point to how granting her more time could improve her position.
In these circumstances, I am not satisfied it is in the interests of justice to adjourn the hearing of the application for an order under s 477(2) of the Act; and I propose to order that the applicant’s application for an adjournment be dismissed.
EXPLANATION FOR DELAY
In the application that was purportedly filed on behalf of the applicant, the applicant provided the following grounds for applying for an order under s 477(2) of the Act (errors in original):
1.I am pleading to the administration of justice to grant me an extension of time for my application for the review of my appeal for an error of law
2. Due to stress of my current situation in Australia I was depressed and stress which made me many times to be sick and I was not able to lodge my application on time
3. Lately I was rushed in Blacktown hospital for an accident at home a glass bowl fell in my feet which cause me stitches and I am still on crutches and recovery stage until this time.
The applicant informed me that these grounds are not accurate. As I have already noted, the applicant said she was unaware that any application was filed on her behalf.
I am prepared to assume that what the applicant stated to me is true; and that she first became aware of the proceeding by no later than 15 February 2018. This state of affairs, however, would not be capable of providing an adequate explanation for delay, because the delay relates to an event of which the applicant says she had no knowledge, and of which she could not have had knowledge until she became aware of the listing of the first court date on 15 February 2018.
APPARENT MERITS
The proposed grounds of application are as follows:
The decision of the Tribunal
1. Failed to take into account relevant considerations.
2. Is affected by error of law
These grounds are not particularised; and, for that reason, they are incapable of identifying any arguable case of jurisdictional error.
The Minister, on the other hand, submits that the second Tribunal decision, although correct, is based on incorrect reasoning. The second Tribunal decision incorrectly assumed that the first Tribunal decision was based on the applicant having made a valid application for review of a Part 5-reviewable decision. In the first Tribunal decision, however, the Tribunal decided it did not have jurisdiction because the application for review was not made in relation to a Part 5-reviewable decision.
The Minister submits that the error in the second Tribunal decision is of no consequence because the delegate’s decision is not a Part 5-reviewable decision; and that is because the delegate’s decision could only have been a Part 5-reviewable decision if the decision was one that fell within s 338(2)(d) of the Act. The Minister submits the delegate’s decision does not fall within s 338(2)(d) of the Act because one of the criteria for the grant of a 457 visa is that the applicant be sponsored by an approved sponsor; and the evidence shows that, as at 27 October 2017, the applicant was not the subject of a nomination either by MPJEL or OTRC; and there was not pending any application for review in relation to the approval of MPJEL or OTRC under s 140E of the Act, or in relation to any approval of a nomination by MPJEL or OTRC of the applicant under s 140GB of the Act.
The Minister relies on the Full Federal Court’s judgment in Ahmad v Minister for Immigration and Border Protection.[14] The question in that case was whether the expression “an application for review of a decision not to approve the sponsor” in s 338(2)(d)(ii) of the Act includes, not only an application for review of a decision not to approve a person as a sponsor under s 140E of the Act, but also an application for review of a decision not to approve a sponsor’s nomination of an occupation under s 140GB of the Act. The Full Federal Court concluded that the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.[15]
[14] Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
[15] Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, at [99]
The Minister also relies on the affidavit of Mr Pipolo to which there is annexed screenshots of Departmental records, which reveal the following:
(a)On 27 May 2014, MPJEL lodged an application to nominate the applicant.
(b)On 30 June 2015 the applicant’s nomination for MPJEL ceased and the applicant’s nomination was refused.
(c)On 4 August 2015 MPJEL lodged an application to nominate the applicant.[16]
(d)On 8 October 2016 MPJEL’s approval as a sponsor was cancelled.
(e)MPJEL’s application lodged on 4 August 2015 to nominate the applicant was refused on 14 November 2016.
(f)On 10 March 2017 OTRC lodged an application to nominate the applicant.
(g)On 10 April 2017 the nomination was refused on the basis that OTRC did not have an approved sponsorship.
[16] Affidavit of Mr J T Pipolo, [12]
There are a number entries in one of the Departmental records that is annexed to Mr Pipolo’s affidavit that invite attention. These are:
Event
Effect date
Client Name
Information
Sanction Imposed
12/10/2017
Meaningful Care Pty Ltd
18/09/2018, 19/09/2021, New sanction bas
Information Received
14/06/2017
Meaningful Care Pty Ltd
Review – Set Aside – Varied – sent via f
Information Received
08/10/2016
Meaningful Care Pty Ltd
AAT NSW, 1616637, Sponsor approval can
Sanction Imposed
19/09/2016
Meaningful Care Pty Ltd
19/09/2016, 18/09/2018, Notice of Decision
I find that, as at 27 October 2017, being the date of the second Tribunal decision, there is no evidence the applicant was the subject of a nomination either by MPJEL or OTRC; nor is there any evidence that as at 27 October 2017 there was pending any application for review in relation to the approval of MPJEL or OTRC under s 140E of the Act, or in relation to any approval of a nomination by MPJEL or OTRC of the applicant under s 140GB of the Act. Thus, there is no arguable basis for claiming that the Tribunal was incorrect in deciding it did not have jurisdiction to review the delegate’s decision made on 27 June 2017.
Even if the Tribunal did have jurisdiction to review the delegate’s decision, there would be no utility in the applicant being granted any relief. There is no evidence the applicant is the subject of any approved nomination; and given the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) repealed reg 2.72 of the Regulations and, with that, subclass 457 visas, the applicant would have no prospect of being granted a 457 visa.
CONCLUSION
The applicant has not provided an adequate explanation for her delay in applying to this Court, and there is no arguable merit in any of the grounds on which she intends to rely if an order extending time were made. I am therefore not satisfied it is necessary in the interests of the administration of justice that an order be made under s 477(2) of the Act extending the 35 day period provided for by s 477(1) of the Act. I propose, therefore, to dismiss the application for an order under s 477(2) of the Act.
The Minister applies for an order for costs, and that those costs be set in the amount of $3,930, which is the amount provided for by item 2 of Part 2 of Division 1 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicant said she was surprised the Minister was seeking costs, by which I understand the applicant submits she should not be ordered to pay costs in circumstances where the application was filed without her knowledge. If that is what the applicant submits, I would not accept it. The applicant has known of this proceeding since at least 15 February 2018, and appears to have taken no steps to understand it.
I am satisfied that costs should follow the event, and that $3,930 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $3,930.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 December 2021
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