International Nippon Australia & Anor Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 174

'JUDGMENT NO. ... /?F ....... / .-....,..- W-

IN THE FEDERAL COURT OF AUSTRALIA )	\	No. NG 487 of
NEW SOUTH WALES DISTRICT REGISTRY )
1
GENERAL DIVISION	1

BETWEEN:	INTERNATIONAL NIPPON
AUSTRALIA NEW  Z F 3 L W D
CLUB LIMITED First Applicant
JUNKICHI BABA Second Applicant
AND :	MINISTER FOR IMMIGRATION, LOCAL
GOVERNHENT AND ETHNIC
AFFAIRS Respondent

/ED

CORAM:	WILCOX J	lOlRtR4 1992
PLACE :	SYDNEY
DATE :	13 MARCH 1992

EXTEMPORE REASONS FOR JUDGBENT

International Nippon Australia New Zealand Club Limited. The

WILCOX J: This is an application for an extension of time to bring an application under the Administrative Decisions jJudicia1 Review) Act 1977 in respect of a decision made on 25 May 1989 by the delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, in respect of an application by the second applicant, Junkichi Baba, for resident status on the basis of employer nomination for entry to Australia. The applicants are Mr Baba and his employer,

evidence is that Mr Baba came to Australia in 1986. He
entered pursuant to a visitor permit. This was extended until
September 1987. Since that date, his continued residence in
Australia has been unlawful. Apparently, immediately after
arriving he took up employment with the first applicant, the
operator of a club in Macquarie Street, Sydney, called the

Nippon Club. He was employed as assistant manager.

The club has a policy which is embodied in its

articles of association requiring an equal balance of Japanese
and Australian employees. It was desirable, possibly
essential, that any Japanese employee be competent in English.
Apparently Mr Baba met that standard. It was also important,
as he was being employed as assistant manager, that he have
some experience in running a restaurant. Although at the time
of his arrival in Australia he was not yet 21, he apparently
had some experience in this direction in Japan. So far as the
evidence indicates, he is a competent and valued employee.
The fact that the employer has supported his various

applications to obtain permanent resident status in Australia

and has mounted this application bears that out.

Mr Baba's initial application was rejected on 25 May that the officer who considered the matter assessed the
application according to a policy control circular relevant to
working holiday makers who apply for permanent residence in
Australia. Under that system there are four criteria. Points
are available according to the answers which apply to a
particular applicant in respect of each criterion. 1989. Reasons for the decision were provided. They reveal

In order to obtain a permanent resident permit by

this route, an applicant needs to obtain 80 or more points
overall; or alternatively a total of 75 points, of which 25
arise in the category of "employability". The category of
"employability" gives 25 points to occupations designated by
the Department of Employment and Industrial Relations as those
in which there are good employment prospects. I understand
this to mean that a person only scores 25 points if his or her
particular occupation is one which is on the department's
list. It does not matter whether in fact there are good
employment prospects, such as there obviously were for Mr Baba
in the present case. The inquiry is whether the occupation is
on the list. It seems to be clear that this particular
occupation was not on the list. This means that Mr Baba was
unable to obtain the top score in the category of

"employability", of 25 points. He in fact was awarded 20

points, being in the second category, "sound and continuous

employment experience and requiring no language or other

training, has at least three years experience".

The second category is "skills" and the maximum

score available in this category is 20 points for persons who
answer the description "professional, technical or trade
skills recognised in Australia". M r Baba scored 10, in answer
to the category "clerical administrative and semi-skilled".
The correctness of this allocation is in question. The next
category is "education". An applicant can score 20 points for
having completed tertiary education or 15 points for having
full secondary education. Mr Baba was given 15 points,
apparently correctly. The final category is "age". The
maximum score is 15 points for persons aged 20 to 34 years.
He scored the maximum of 15 points.

Following the rejection of the application, there

was a deal of correspondence by solicitors acting on behalf of

the employer and M r Baba. In the course of that

correspondence, they conceded that their clients had not
adequately explained some of the material regarding his
employment and they supplied a lot of additional information.
The correspondence extended for a period of about six months
from June 1989 until November 1989, there being letters from
both the solicitors and some business consultants acting for
the employer. In November 1989 a letter was sent by the
business consultants, in effect conceding that the previous

application had to fail and talking about Mr Baba returning to

not happen - apparently because of the commencement of the new	Japan and making an application from Japan. However, this did
Act at the end of 1989 - and further procedures were put in hand. It is not necessary to go to the detail of them. It is sufficient to say that they culminated in a refusal on 25 July 1991 of an application for an extended eligibility temporary entry permit on economic grounds. That refusal is the subject of an application for review under the Administrative
Decisions (Judlclal Review) Act 1977. That appllcation was
made in time. No question arises about it. Its only relevance is that, as counsel for the applicant has pointed out, there will be a case in this Court in any event, whether it is confined to the second decision or whether it relates to both decisions.

In support of the appllcation for an extension of

time, counsel said that at all material times the department
was aware that the applicant was persisting with his desire to
remain in Australia. This has to be read against the
background that there was a period, admittedly a fairly short
period, during which he appeared to accept the decision and to
be intending to depart, but I do not think that is very
important. It is said that there is no prejudice to the
respondent. I think that this is probably right; although, as
counsel for the respondent pointed out, if there was ever any
question about events that occurred in 1989 which are not the

subject of notes, there would be a disadvantage. However, I

doubt that this is a likely event. And finally, of course,

counsel relied on the fact that in any event her clients are
entitled to proceed with their challenge to the second
decision and propose to do so.

Counsel for the respondent correctly said that there is no explanation for the delay in lodging the application and that there is no explanation of the fact that, although the

application for extension was filed on 22 August 1991, it did
not come on for hearing at an earlier date than the present
time. The affidavit of Mr Farago, solicitor for the
applicant, which simply annexes the relevant documents, was
not filed until 6 December 1991.

I think that it should be said quite plainly that delays of this order in administrative decision matters are not to be countenanced. This is particularly the case when an

applicant is already out of time and is seeking an indulgence from the Court. By the same token it would have been open to the department to take some action to bring the matter before the Court and to seek directions for a more speedy disposal of

the matter, but it failed to do so. It is highly undesirable
that the question whether a person is entitled to remain in
Australia be allowed to drag on for many months in this way,
from the point of view both of proper administration and that
person being able to plan his or her future. Cases such as
this should be dealt with expeditiously. However, although
this matter is relevant to the proper decision to be made

today, I think in the full picture it does not make much

difference.

As the authorities establish, the Court is bound to

have regard, at least in a preliminary way, to the prospects
of success in the challenge to the relevant administrative
decision. This does not mean that the Court comes to a final
view on matters which are fairly open to debate or where
further evidence is likely to change the present picture.
ran advertisements in major metropolltan dailles but without
success. I think it is fairly apparent that it is not likely
to be easy to replace M S Baba; and this must make one wonder
about a policy which forces him to leave the country, to the
detriment of an employer involved in the tourist industry,
which has an important part to play in alleviating our trade
problems.

However these matters might be, the only question

for present purposes is whether or not the decision maker
erred in his choice of the relevant category of skill. I
think it is an arguable proposition that having regard to the
unusual circumstances, he should have been scored 20 on that
assessment. But the difficulty is that, even if this change
had been made, his score would still have been only 7 0 points;
whereas he needed 80 points. The only way in which one can

get 80 points under this assessment is to top the score in

each category. [This is a little odd, given the fact that if

one tops the score on each category one will have got 25 under

"employability", and the document also says that if one gets
25 on "employability" one only needs 75 overall.]	It may be

that very few people could qualify under this approach. But counsel for the Minister says, and I think rightly, that the Minister is entitled to set extremely high standards in

respect of people who come to Australia on working holidays
and then wish to remain here permanently. In any event, the
wisdom of the policy is not for me. The only question is
whether, even if Mr Baba were successful in the case he
desires to lltlgate, a Court would set aside the decision. I
think that the correct answer would be in such a circumstance
that the decision was in fact correct, even though the score
should have been 70 rather than 60; the decision itself being
to refuse the application because of failure to score 80
points. The Court would have to consider the situation as it
was in 1989, not what it might be at the present time.

If I thought that there was a reasonable basis for

success, I might be inclined to take a different view. But,

in the face of what I regard as an impossible position in
succeeding in setting aside the decision, it seems to me wrong
to grant an extension of time. Accordingly, I refuse the
orders sought in the amended Notice of Motion. The applicants

must pay the respondents costs.

I certify that this and the preceding eight (8) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:
Dated: 13 ~a;ch 1992 APPEAUkUCES

Counsel for the Applicant:	A Bowne & M Davis
Solicitors for the Applicant:	Lange & CO
Counsel for the Respondent:	P Roberts
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	13 March 1992