Joshi v Minister for Immigration

[2019] FCCA 3610

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSHI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3610

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Business Entry (Class UC) (Subclass 457) visa – whether the Tribunal made jurisdictional error in failing to exercise jurisdiction denying procedural fairness – whether the Tribunal failed to provide reasons as to why an extension of time was not allowed – whether the Tribunal made jurisdictional error by not inviting the applicants to appear under s 360 of the Migration Act 1958 (Cth) – whether the Tribunal made jurisdictional error by making an unreasonable decision without consideration towards the applications current circumstances – whether the Tribunal’s decision was unreasonable, irrational or illogical – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140, 338, 359, 360, 411
Migration Regulations 1994 (Cth), cl.457.233, r.4.02

First Applicant: SUJATA JOSHI

Second Applicant: AVISHEK SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2103 of 2018

Judgment of: Judge Humphreys

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Parramatta

Delivered on: 11 December 2019

REPRESENTATION

Applicants appeared in person.

Solicitors for the Respondents: Ms Warner Knight, Australian Government Solicitor

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicants to pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2103 of 2018

SUJATA JOSHI

First Applicant

AVISHEK SHRESTHA

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. On 8 December 2017, the first applicant lodged an application for a Temporary Business Entry (Class UC) (Subclass 457) visas. The first applicant lodged the application with the second applicant as a family member, nominating her sponsoring employer as Yes Restaurant Pty Ltd (“Yes Restaurant”). On 24 January 2018, the Department of Home Affairs refused Yes Restaurant’s application for standard business sponsorship. On 29 January 2018, the Department requested further information from the first applicant, including a valid nomination by an approved business sponsor, advising that Yes Restaurant did not have an approved nomination for the first applicant.

2. On 24 April 2018, a delegate of the Minister (“the delegate”) refused the visas on the basis that the first applicant was not the subject of an approved nomination by an approved business sponsor and thus did not satisfy cl. 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. On 11 May 2018, the applicants applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision to refuse the visas. On 21 May 2018, the Tribunal wrote to the applicants inviting them to comment on the validity of the application for review, noting that the first applicant was not identified in an approved or pending nomination by a business sponsor under s 140GB of the Migration Act 1958 (Cth) (“the Act”). The Tribunal also noted that there was no pending application by the sponsor for review of the decision by the delegate not to approve it as a sponsor, under s 140E of the Act, nor was there review of a decision not to approve the nomination under

   
   

   s 140GB of the Act.

4. A request was made by the first applicant for further time to provide comment and the Tribunal granted an extension of time until 19 June 2018. A further request for time was sought but refused and on 26 June 2018, the Tribunal determined it had no jurisdiction to hear the application for review. The applicants now seek judicial review of the Tribunal’s decision in determining it had no jurisdiction to hear the application.

The Administrative Appeals Tribunal’s Decision

1. In considering whether the Tribunal had jurisdiction, the Tribunal referred to s 338 and s 411 of the Act and r 4.02(4) of the Regulations, which set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. A decision refusing to grant a Temporary Business Entry (Class UC) visa is reviewable if either the applicant is sponsored by an approved sponsor at the time of the application for review of the decision to refuse the visa is made. The other reason being an application for review of a decision not to approve the sponsorship or nomination application has been made but, at the time the application is made, review of the sponsorship or nomination application decision is pending.

2. The Tribunal noted that none of the above conditions were met and the delegate refused to grant the visas for the first and second applicant because the first applicant was not the subject of an approved nomination by a sponsor. The Tribunal also noted that an extension of time was granted to the applicants from 4 June 2018 to 19 June 2018 to provide comment on the validity of the application. The Tribunal took into account the first applicant’s response on 19 June 2018 that she was not able to contact her migration agent except by phone during a Fair Work Ombudsman mediation.

Grounds of Appeal

1. The two grounds of appeal that are relied upon are as follows:

   (1) The Second Respondent made jurisdictional error and/or failed to exercise jurisdiction denying procedural fairness in contravention of ss. 359A, 359AA and 360 of the Migration Act 1958.

   Particulars

   (a)    The Second Respondent at [7] failed to consider that the Applicant was not able to contact her migration agent. No sufficient extension of time to submit the information on the question of validity was awarded.

   (b)    The Second Respondent did not give reasons why it would not allow an extension of time.

   (c)     The Second Respondent at [14] only provided the Applicant with a two week post-hearing extension to produce relevant documents which was not sufficient in the circumstances of the Applicant as per emails sent on 19 June 2018.

   (d) The Second Respondent did not carry out its jurisdiction task by not inviting the Applicants to appear under s 360 of the Migration Act 1958.

   (2)    The Second Respondent made jurisdictional error by making an unreasonable decision without consideration towards the Applicant current circumstances

   Particulars

   (a)    The Applicant recently went through a Fair Work Ombudsman mediation [7].

   (b)    The hearing was based upon whether either of the Applicants were identified in the nomination under s 140GB or whether there was a pending application and not on the fact the applicant could sustain further information from Yes Restaurant Pty Ltd.

The Applicant’s Submissions

1. The applicants appeared before the Court unrepresented. Despite Court Orders, no written submissions were filed in support of their application. The applicants told the Court that they acted in accordance with their migration agent’s instructions and that it was unfair that they were being penalised as a result of a fault by the migration agent.

2. The Court carefully went through the circumstances of the matter and the issue that was raised by the first respondent was that the Tribunal, in fact, had no jurisdiction because there was no approved sponsor for the applicants, or a review of a refusal of sponsorship by Yes Restaurant, had not been made. The applicants sought an adjournment in order to obtain legal advice. That application was refused on the basis that the matter had been before the Court since July 2018, the applicants had not made any attempt to obtain legal representation to date and that it was too late to seek an adjournment when the matter was already mid-hearing.

3. While the Court understood the concerns of the applicants, in the present circumstances, for the reasons which I will set out as follows, legal representation could not have assisted them, given the fact that they simply did not have an approved sponsor, which was a precondition for the grant of a Temporary Business Entry (Class UC) (Subclass 457) visa.

4. Accordingly, the application for the adjournment was refused.

The First Respondent’s Submissions

1. Prior to the commencement of the hearing, the first respondent’s submissions were read to the applicants by the Court interpreter. In relation to Ground 1, the first respondent noted that procedural fairness obligations under s 359A, s 359AA and s 360 of the Act, concerning how a review is to be conducted, only arise where the Tribunal has jurisdiction to conduct a review. In the current case, the Tribunal determined it had no jurisdiction to conduct a review and, accordingly, the ground is misconceived.

2. In relation to the complaint that the Tribunal did not grant a second extension of time made on 19 June 2018, in the circumstances, it was not unreasonable for the Tribunal to refuse to grant the application for a further adjournment. In any event, the only issue for the Court was whether the Tribunal was correct to find that it did not have jurisdiction to review the delegate’s decision.

3. In relation to Ground 2, the first respondent contended that the applicants’ contention that the Tribunal’s decision was unreasonable because the Tribunal did not give consideration “towards the applicants’ current circumstances”, was misconceived. The Tribunal, at paragraph 6 of its decision, checked the Department’s electronic records, which satisfied the Tribunal that the sponsorship lodged by Yes Restaurant had been refused and that there was no evidence to suggest, prior to the review application being lodged, made another nomination application sponsoring either of the applicants.

4. Further, there was no information that there was an application for a review of the decision to refuse the sponsorship by Yes Restaurant. The first respondent submitted there was no evidence before the Tribunal, nor is there any evidence before the Court, to demonstrate that the Tribunal was incorrect to find that, at the time of lodging the review application, the first applicant did not meet s 338(2)(d) of the Act.

Consideration

1. In my view, both grounds of appeal in this case are misconceived. In order for the Tribunal to conduct a review, the relevant criteria under

   
   

   s 338 of the Act must be enlivened to provide the Tribunal jurisdiction. Those requirements are in relation to an application for a visa which is sponsored by an approved sponsor. Firstly, the application by the non-citizen is actually sponsored by an approved sponsor or secondly, that an application for review of a decision not to approve the sponsor has been made and the review is still pending.

2. Neither of the above criteria were satisfied at the time the Tribunal made its decision to determine it had no jurisdiction. I agree with the first respondent’s submission referring to the applicants’ first ground of appeal that the procedural fairness requirements were not considered nor were required to be considered, as these relate to how a review should be conducted. As there was no jurisdiction, no review was able to be conducted and those procedural fairness obligations were therefore never enlivened.

3. In relation to the second ground of appeal, which noted the delegate’s decision to refuse the visa made on 29 January 2018, the Tribunal initially wrote to the applicants on 21 May 2018, pointing out that there were concerns as to the jurisdiction of the Tribunal to conduct the review requested by the applicants. The Tribunal made appropriate enquiries as to whether there had been any change of circumstances in relation to sponsorship of the first applicant by either Yes Restaurant, or some other approved sponsor. Those enquiries indicated there had been no change of circumstances.

4. In these circumstances, bearing in mind the Tribunal had already allowed an extension of time for submissions, I do not consider it was unreasonable that the Tribunal would have moved to finalise its decision to determine there was no jurisdiction to hear the matter.

5. I am satisfied that there was nothing unreasonable, irrational or illogical in the decision of the Tribunal to determine it had no jurisdiction. The decision had a clear and evident intelligible justification. Having granted one adjournment, the decision not to grant a further adjournment was also reasonable and not evidence of jurisdictional error.

6. I am of the view that both grounds of appeal must fail. As the applicants are unrepresented, I have carefully perused the decision of the Tribunal and I am satisfied there is no other jurisdictional error apparent on the face of the record which has not been articulated by the applicants.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  30 January 2020