Kaur v Minister for Home Affairs

[2018] FCCA 2564

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2564

Catchwords:

MIGRATION – Application to set aside orders made in the absence of the applicant – whether applicant has given adequate explanation for non-appearance – whether application would have merits if the orders were set aside – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.476, 477, Schedule 2, cl.457.223(4)(a)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: RAJANDEEP KAUR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1887 of 2018

Judgment of: Judge Manousaridis

Hearing date: 6 September 2018

Date of Last Submission: 6 September 2018

Delivered at: Sydney

Delivered on: 14 September 2018

REPRESENTATION

Applicant in person

Solicitor for the Respondents: Ms C Juarez of HWL Ebsworth Lawyers

ORDERS

1. The application in a case filed on 7 August 2018 seeking to set aside the orders made on 30 July 2018 dismissing the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1887 of 2018

RAJANDEEP KAUR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me is an application in a case filed by the applicant on 7 August 2018 seeking an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the orders made by a Registrar of this Court on 30 July 2018 dismissing the application be set aside. The Registrar dismissed the application pursuant to r.13.03C(1)(c) of the FCC Rules because the applicant did not appear before the Registrar.

2. The application which the Registrar dismissed was an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) that the 35 day period provided for by s.477(1) of the Act for applying for a remedy in relation to a decision of the second respondent (Tribunal) be extended. The Tribunal’s decision in relation to which a remedy under s.476 of the Act is intended to be sought, if an order under s.477(2) is made, is a decision not to grant the applicant a Temporary Business Entry (Class UC) (Subclass 457) visa (457 visa).

Principles

1. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors 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.

   [1] [2010] FCA 530 at [7]

2. I therefore turn to the first matter I need to consider, and that is the reasons for the applicant not appearing at the hearing before the Registrar on 30 July 2018.

Reasons for non-appearance

1. The applicant stated the reasons for which she did not appear in the affidavit she filed with the application in a case. The applicant there says she did not attend because of her “hesitation” and her being “stressed out” because she does not have a lawyer. At the hearing before me the applicant, who is not legally represented, said she was confused, and she did not know what to do. She also said she expected the Court would give the applicant more time.

2. None of the reasons on which the applicant relies affords a satisfactory explanation for her not attending the hearing on 30 July 2018. Although it is understandable a person may suffer stress at the prospect of appearing before a court without any legal representation, that by itself does not provide an adequate explanation for the applicant’s non-appearance. And it was not reasonable for the applicant to expect that the Court would simply give her more time in the absence of the applicant not appearing or otherwise attempting to communicate with the Court or with the first respondent (Minister) about her intentions in relation to the proceeding.

Reasonable prospects of obtaining order under s.477(2) of Act?

1. Under s.477(2) of the Act the Court may make an order extending the 35 day period provided for by s.477(1) of the Act if an application has been made to this Court for such order in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such order; and if this Court is satisfied that it is necessary in the interests of the administration of justice to make the order. When considering that question a number of matters are or may be relevant. These usually include the length of the delay, and the reasons for the delay. The most important matter, at least in most cases, however, is whether the grounds on which an applicant proposes to rely if an order under s.477(2) of the Act is made are “sufficiently arguable to justify the extension of time”.[2]

   [2] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, [47] (Foster J)

2. In the proceeding before me the applicant was only one day late in filing her application; and the reasons the applicant gives for filing the application one day late is that she miscalculated the 35 day period. I accept that this is an adequate explanation for the applicant’s delay and, when considered against the very short delay - one day - would not count against the Court making an order under s.477(2) of the Act if the substantive grounds on which the applicant intends to rely are sufficiently arguable. And that is the critical question I must consider in the application before me: are that the grounds on which the applicant proposes to rely sufficiently arguable to justify the making of an order under s.477(2) of the Act? To answer that question it will be necessary to refer to the Tribunal’s reasons.

3. To have been entitled to a 457 visa the applicant had to satisfy, among other things, cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph provided that an applicant had to satisfy each of the matters stated in the paragraph. One of these was that identified in sub paragraph (i), namely, that “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”.

4. According to the Tribunal’s decision record, the delegate refused to grant the applicant a 457 visa because the nomination by the applicant’s sponsor of an occupation in relation to the applicant was refused. On 23 April 2018 the Tribunal wrote to the applicant inviting her to provide comments on information the Tribunal indicated would be part of the reason for affirming the delegate’s decision, that information being that the applicant’s sponsor had withdrawn its application to review the “Department’s” decision not to approve the nomination in relation to the applicant. The applicant did not respond to the invitation. In those circumstances the Tribunal proceeded to exercise the power conferred by s.359C of the Act to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

5. The Tribunal found that to be granted a 457 visa the applicant had to meet the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations; that that paragraph required there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased; the applicant was nominated by her sponsor in the occupation of hair and beauty manager, but that nomination was refused and consequently the applicant’s application for a 457 visa was refused; and the sponsor applied for review of the decision not to approve the nomination in relation to the applicant but it withdrew that application. In those circumstances the Tribunal found that the requirements of cl.457.223(4)(a) of the Act were not met.

6. My next task is to identify the ground of application stated in the application. That is stated in an affidavit the applicant filed at the time she filed the application, and to which the application refers:

   That, Department of Home Affairs formerly known as Department of Immigration and Protection had refused my application under subclass 457. I lodged review application with Administrative Appeals tribunal, which affirmed department’s refusal decision. I do not agree with tribunal’s decision and request the honourable court to grant a hearing of the case and I will provide further documentation to support my case. I believe DOHA and AAT made Judicial [sic] error which needs to be rectified.

7. The applicant made submissions at the hearing before me. I requested the applicant inform me why she did not agree with the Tribunal’s decision. I initially had a little difficulty understanding what the applicant intended to convey. She referred to her having all the necessary qualifications for her position, to her having worked, and to her employer being willing to nominate her for the position; and the reference in the ground stated in her affidavit which I have reproduced above to the applicant providing further documentation to support her case, as well as the reference in the affidavit in support of the application in a case to the applicant’s having evidence to prove that she should get a 457 visa, were intended by the applicant to refer to documents and evidence about her qualifications and her employment. The point was reached where the applicant agreed with my formulation of what I understood the applicant intended to submit, and that was that she believed that all the conditions necessary for the approval of the nomination by the applicant’s sponsor of an occupation in relation to the applicant had been satisfied.

8. The ground stated in the affidavit the applicant filed together with her application, either by itself or as supplemented by what the applicant submitted to me, discloses no arguable case of jurisdictional error by the Tribunal. Whether or not all the conditions necessary for approval of the nomination by the applicant’s sponsor of an occupation in relation to the applicant had been satisfied was not relevant to whether the applicant had satisfied cl.457.223(4)(a) of Schedule 2 to the Regulations which, as I have already noted, required, among other things “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”. There is no question that when the matter was before the Tribunal this condition was not satisfied with the inevitable consequence that the Tribunal was bound to affirm the delegate’s decision not to grant the applicant a 457 visa.

9. In her affidavit supporting the application in a case the applicant requests that she be given time to collect money to retain a lawyer. At the hearing before me the applicant said she wanted time to retain a barrister. She said that she needed to raise $3,500, that she expected her father would provide $2,500, a friend $500, and the applicant herself would provide $500. That the applicant intends to attempt to obtain money for the purpose of retaining a lawyer has no bearing on the question of whether the ground on which the applicant relies is reasonably arguable; and whether or not a lawyer whom the applicant might retain will discover some ground which is arguable is entirely a matter of speculation. In any event, I have real doubts that the applicant would be able to retain a lawyer in the near future. The Tribunal made its decision on 31 May 2018, some three months ago. It is reasonable to expect that had the applicant any real prospect of obtaining legal assistance she would have been able to do so in the three months that have passed since the Tribunal made its decision.

10. In these circumstances I conclude there is no reasonable case that it would be necessary in the interests of the administration of justice to make an order under s.477(2) of the Act in relation to the application the applicant filed. That in turn means that if I were to set aside the Registrar’s orders of 30 July 2018 the applicant would have no reasonably arguable prospects of succeeding in being granted an order under s.477(2) of the Act extending the time provided for by s.477(1) of the Act for the making of an application for a remedy under s.476 of the Act in relation to the Tribunal’s decision made on 31 May 2018 not to grant the applicant a 457 visa.

11. I should note the Minister submitted that even if the applicant were ultimately to establish the Tribunal made a jurisdictional error, it is inevitable that relief would be refused because the Regulations have been amended with the effect that the applicant could never become eligible for the grant of a 457 visa. Given the conclusions I have already arrived at, it is not necessary to consider this submission.

Conclusion and disposition

1. I propose, therefore, to order that the application in a case should be dismissed. I will invite submissions about costs at the time I pronounce my order dismissing the application in a case.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 September 2018