Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 234
•9 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 234
File number(s): SYG 506 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 9 November 2021 Catchwords: MIGRATION – Practice and procedure – application for adjournment of hearing of application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a 457 visa – judgment on application for adjournment reserved on the basis that the Court would decide application after hearing the merits of the substantive application – application for adjournment dismissed – whether applicant’s not being informed of progress of application for nomination renders invalid Tribunal’s decision not to grant applicant 457 visa on the ground there was no evidence the applicant was the subject of an approved nomination relating to him by a standard business sponsor that had not ceased – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 140E, 140G, 140M, 359A, 359C, 360(3), 476,
Migration Regulations 1994 (Cth) reg 1.03, Sch 2, cl 457.223
Cases cited: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 4 November 2021 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the First Respondent: Mr E Taylor of Mills Oakley, by telephone ORDERS
SYG 506 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIPIN KARKI
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:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $5,400.
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
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Business Entry (class UC) visa (457 visa).
BACKGROUND
On 4 April 2016 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 (Schedule) 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] As I note later in these reasons, class 457 of Schedule 2 was repealed with effect from 18 March 2018
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 to mean a person who has been approved by the Minister under s 140E of the Act in relation to a class of visas 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) of the Act if prescribed criteria are satisfied.
In his form of application the applicant identified Atlas Holdings Queensland Pty Ltd (Atlas) as his “sponsoring employer”. By letter dated 17 November 2016 what was then known as the Department of Immigration and Border Protection (Department) informed the applicant through his migration agent that Atlas did not have an approved nomination for the applicant at that time, and that the applicant’s application for a 457 visa was unlikely to be successful. The Department invited the applicant to provide comments or any other information within 28 days after he is taken to have received the Department’s letter.[2] The applicant did not respond to the Department’s letter, and on 3 March 2017 the delegate refused to grant the applicant the 457 visa.
[2] CB44
BEFORE THE TRIBUNAL
By letter dated 4 January 2018 sent by email to the applicant’s migration agent (359A Letter), the Tribunal invited the applicant to comment on or respond to information the Tribunal considered would, subject to the applicant’s comments, be the reason, or a part of the reason, for affirming the delegate’s decision; and the Tribunal provided the following particulars of that information:
•On 4 April 2016 you lodged an application for a Subclass 457 – Temporary Work (Skilled) visa;
•Departmental records indicated that on 4 April 2016 Atlas Holdings Queensland Pty Ltd lodged an application for approval of a business nomination for a Customer Service Manager (ANZSCO Code 149212);
On 17 November 2016 the Department refused to approve the business nomination application lodged by Atlas Holdings Queensland Pty Ltd;
•On 8 December 2016 Atlas Holdings Queensland Pty Ltd lodged an application for review with the Tribunal in respect of the decision to refuse its application for approval of a business nomination;
•On 22 December 2017 Atlas Holdings Queensland Pty Ltd withdrew its application for review before the Tribunal and that application was finalised by the Tribunal on 3 January 2018 as one in which it did not have jurisdiction;
•As a result, there is no evidence as at the date of this letter that you are the subject of an approved business nomination that has not ceased at the time of decision as required by paragraph 457.223(4)(a) [of] the Regulations.
The 359A Letter then identified the reasons the information was relevant.
TRIBUNAL’S REASONS
The applicant did not respond to the Tribunal’s letter. Given the Tribunal considered it had issued the 359A Letter pursuant to s 359A of the Act, and the applicant did not respond to that letter, the Tribunal considered s 359C(1), s 359C(2), and s 360(3) of the Act applied, with the consequence that the Tribunal considered it was entitled to make a decision on the review without taking any further action to obtain information; and that the applicant was not entitled to appear before the Tribunal.
The Tribunal found that cl 457.223(4)(a) of the Schedule applied, and that it required that there be a nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased. The Tribunal found this condition was not satisfied because there was no evidence before the Tribunal to indicate the applicant is the subject of an approved nomination relating to him by a standard business sponsor that has not ceased.
GROUND OF APPLICATION AND COURSE OF PROCEEDINGS
The applicant relies on the following ground of application:
The applicant is an employee nominee. The migration agent was or is believed to be the in-house agent of an employer sponsor. The 457 visa application appears to have been withdrawn by the agent or by the sponsor without prior notification with the result that the applicant was not informed of the hearing and or of its cancellation, and was able to make no representations on his own behalf with the result that he was denied procedural fairness.
The application was prepared and filed by a lawyer, Mr Newman, on 28 February 2018. Mr Newman, however, passed away apparently in 2019. The applicant, who is not legally represented, informed me at the hearing that he first became aware of Mr Newman’s passing some 8 weeks ago, after the proceeding was listed for hearing before me. In those circumstances, the applicant applied for an adjournment. The Minister opposed the application for an adjournment, largely because the Minister submitted the application was bound to fail and, for that reason, it would be futile to adjourn the proceeding. Given the Minister’s reliance on futility, I decided to reserve my decision on the application for adjournment, and hear the merits of the application, the intention being that I would either grant the adjournment and give no judgment on the merits of the application, or refuse the adjournment and give judgment on the merits of the application.
APPLICATION FOR ADJOURNMENT
The applicant did not support his application for adjournment with any affidavit or documents. I am prepared, however, to accept as evidence the statements the applicant made in support of his application. As I have already noted, the applicant said he did not hear of Mr Newman’s passing until after he was notified of the listing for hearing of this matter. The applicant did not attempt to contact Mr Newman before the applicant was notified of the listing because the last communication he had from Mr Newman was that Mr Newman would contact the applicant when it was necessary for him to do so. The applicant further said that he needs time to raise money to engage a lawyer; he needs between $10,000 to $15,000 to engage a lawyer; he has already saved $5,000; and he had approached lawyers who said they were too busy. I asked the applicant what it was he hoped he would gain if I were to adjourn the matter. The applicant said that Mr Newman had informed him that the migration agent had not kept the applicant informed of the progress of matters associated with the applicant’s application for a 457 visa; and that a lawyer would assist the applicant.
I am prepared to accept as true the facts the applicant asserted by his statements to me; and also to accept that those facts constitute an acceptable explanation for the applicant not having become aware of Mr Newman’s passing before the applicant was notified of the listing for hearing of his application. That means that whether I should grant the adjournment turns substantially on whether there would be any utility in my granting the adjournment. There would be no utility in the hearing being adjourned because, for reasons I give below, the ground on which the applicant relies is hopeless; and, even sound, there would be no prospect of the Court granting any remedy that could be of any benefit to the applicant.
I therefore propose to order that the applicant’s application for adjournment be dismissed.
MERITS OF GROUND OF APPLICATION
The ground claims the “457 visa application appears to have been withdrawn”. That is incorrect to the extent it is intended to refer to the applicant’s application for a 457 visa, because the applicant’s 457 application was not withdrawn. The Minister, in his written submissions, interprets the ground as claiming that Atlas had withdrawn its nomination application, but submits that, as the Tribunal notified the applicant in the 359A Letter, Atlas had withdrawn its application for review.
Even if the applicant was not notified of the course of Atlas’s application for nomination, and even if, had the applicant been notified, he would have made submissions in relation to that proceeding, and Atlas would have been granted an approved nomination for the applicant, that does not alter the fact that at the time the Tribunal considered the applicant’s application for review there was no evidence before the Tribunal to indicate the applicant was the subject of an approved nomination relating to him by a standard business sponsor that had not ceased; and that the Tribunal, therefore, made no jurisdictional error in affirming the decision for the reasons it did.
Further, even if the Tribunal had made any jurisdictional error it would be futile to set aside the Tribunal’s decision and order that the Tribunal consider the applicant’s application for review according to law.[3] Nor would there be any utility in granting any declaratory relief. First, class 457 of the Schedule was repealed with effect from 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (cl 2(1) and Schedule 1, Part 1, item 167).[4] Second, there is nothing to suggest that the applicant is, or may be, the subject of an approved nomination relating to him by a standard business sponsor that had not ceased.
[3] SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, at [28]-[29]
[4] 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 18 March 2018
For completeness, I should refer to the Minister’s submissions that the Tribunal complied with its obligations under s 359A of the Act, and, given the absence of any response by the applicant to the 359A Letter, the Tribunal was entitled to proceed in the manner in which it did proceed.[5] I accept the Minister’s submissions.
[5] First Respondent’s Submissions, [21]-[23]
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
The Minister applies for an order that the applicant pay the Minister’s costs set in the amount of $5,400. The applicant made no submissions against my ordering costs, or about the reasonableness of the amount for which the Minister submitted his costs should be set. I am satisfied that costs should follow the event, and that $5,400 reflects a fair indemnity of the costs the Minister incurred in successfully resisting the application. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $5,400.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) does not constitute or continue any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 9 November 2021
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