KAUR v Minister for Immigration

[2017] FCCA 2638

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2638

Catchwords:
MIGRATION – Application for judicial review – application to reinstate following dismissal for non-appearance – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18

First Applicant: BALJINDER KAUR

Second Applicant: BALJEET SINGH SAINI

Third Applicant: SIMARDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 951 of 2016

Judgment of: Judge Riethmuller

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Melbourne

Delivered on: 31 October 2017

REPRESENTATION

The First Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 951 of 2016

BALJINDER KAUR

First Applicant

BALJEET SINGH SAINI

Second Applicant

SIMARDEEP SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks orders setting aside orders made on 12 December 2016 dismissing her judicial review proceedings, wherein she sought to judicially review a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister to refuse to grant her a Temporary Business Entry (Class UC) visa pursuant to the Migration Act 1958 (Cth).

2. The applicant sought the Temporary Business Entry visa relying upon a nomination by a standard business sponsor, on the basis that she had the skills necessary to perform the duties in the nominated occupation of “hairdresser”, relying upon her Certificate III and Certificate IV qualifications.  Ultimately, the delegate did not consider that the applicant satisfied the criteria for a Temporary Work (Skilled) visa subclass of the Temporary Business Entry visa, and therefore did not grant a Temporary Business Entry visa.

3. The applicant sought review in the Tribunal by way of an application made in September 2013.  (The Tribunal erroneously said the application was made on 12 June 2013, when in fact it was 15 September 2013: see para.5 of the Tribunal’s decision)  The applicant’s initial sponsor, International Beauty Salon Proprietary Limited, had its sponsorship agreement cancelled on 10 January 2014.  Thus, she no longer had a sponsor at the time of the first hearing by the Tribunal. 

4. On 10 June 2014, the Tribunal officer informed the applicant that the matter would be adjourned pending the determination of a new sponsorship application by Krishna Transport Pty Ltd that had been made on 16 May 2014. 

5. The application by Krishna Transport Pty Ltd was refused on 6 October 2014.  The applicants’ adviser told the Tribunal, on 17 October 2014, that the nomination had been refused:

   11. …due to extenuating circumstances, in that when the DIBP did a site visit of the business, it was closed because of the constraints of a former employee and her restricted work hours.

6. The Tribunal advised the applicants that on the material presently available, it could not make a favourable decision for the applicant, and invited the applicant to present oral evidence on 19 November 2014.  The applicant appeared and presented arguments assisted by her representative.  On that occasion, the applicant stated that she had arrived in Australia in April 2008 on a student visa, completed a Diploma of Hairdressing by 2010 and a Diploma of Business Management by 2012, then completing a Certificate IV in Hairdressing in April 2014.  She confirmed that she had received notification that International Beauty Salon Pty Ltd’s sponsorship agreement was cancelled on 10 January 2013, and that her new prospective employer Krishna Transport’s nomination had also been refused on 6 October 2014.  She advised the Tribunal that her prospective employer had lodged an application for review, and also a new business nomination, with the Department. 

7. The Tribunal specifically considered what was effectively an adjournment application, saying:

   21. The Tribunal carefully considered her request and explained that, because her previously approved nomination ceased as a result of sponsorship cancelation to International Beauty Salon Pty Ltd (her former prospective employer) the Tribunal adjourned this review in order to enable her to find a new employer and secure necessary business sponsorship and nomination.  Upon receiving evidence that a new business nomination was lodged by Krishna Transport Pty Ltd (Morland Beauty and Hair salon) in May 2014, the Tribunal adjourned the review until the Department decided on her new prospective employer’s business nomination application.  According to her evidence, the decision was made by the Department in October 2014 to refuse the business nomination application.

   22.  The presiding member explained that the Tribunal is not required to wait for the outcome of either the review application lodged by her prospective employer to the Tribunal or new business nomination application lodged with the DIBP.  One of the legal requirements for the grant of a subclass 457 visa is that the business sponsorship and nomination be in place at the time of decision.  If the Tribunal were obliged to await the decision on all nomination applications relevant to an applicant, the situation could arise whereby she will be able to remain in Australia by continuing to seek nominations from same or different employers even though such applications may be continuously refused either by the Department or the Tribunal on review.

   23.  The Tribunal noted that the period for which the Tribunal is expected to delay making its decision is uncertain if and when the applicant will become the subject of an approved business nomination.  The Tribunal is not disposed to delay making a decision indefinitely.

   24. The Tribunal further noted that, according to her oral evidence, she has not been working in her nominated occupation of a hairdresser in Australia (apart from a casual job at 4 Hair Salon) and has not been working at all since January 2014.  The Tribunal explained the purposes for which a subclass 457 visa is granted.

   25. Having considered the evidence before it, the Tribunal concluded that the applicant has had ample time in which to make the necessary arrangements to meet the cl.457.223(4)(a) and decided not to further adjourn the review.  As she has failed to provide evidence of having an approved nomination of an occupation in relation to her visa application, the Tribunal proceeded to make oral decision affirming the decision under review on the basis that the applicant does not meet the cl.457.223(4)(a) to the Regulations.

8. Having received the adverse decision from the Tribunal, the applicant then applied for Ministerial Intervention, which was also refused.  Thereafter, she filed an application in this Court seeking judicial review of the decision of the Tribunal. 

9. The Tribunal’s decision was made on 25 November 2014, but her application to this Court was not made until 9 May 2016.  The grounds for review are simply:

   The orders made by first and second respondent is not natural.  Procedural fairness.

10. The first return date for the proceedings in this Court was on 12 October 2016, at which time directions were made by the Registrar.  The Registrar made directions for an extension of time hearing (and if time was extended, a hearing of the substantive application) on 12 December 2016.  The Registrar made various procedural directions, including for the applicant to file and serve particulars of the grounds of application and affidavits and written submissions by 16 November 2016.  The applicant did not file any further material.  The applicant failed to appear on 12 December 2016, and the application was dismissed.

11. On 9 January 2017, the applicant filed an application in a case, which is the proceedings currently before me.  This was listed on 18 July 2017.  On that day, the applicant advised that she had engaged a solicitor, who had ceased to act for her only shortly before the hearing date.  As a result, I adjourned the matter to 20 July 2017, and required the former solicitor to appear.

12. On 20 July, I adjourned the hearing of the matter to 28 August 2017 and allowed the applicant until 14 August 2017 to file and serve written submissions.  Thereafter, a Notice of Withdrawal of Lawyer was formally filed, and the applicant filed two affidavits, one on 14 August 2017 and one on 28 August 2017.

13. The applicant relied upon a claim that she was not medically fit to attend at the hearing on 12 December 2016, although provided no report directly addressing her fitness to attend on the particular day.  As a result, I am not persuaded that she has established a reasonable explanation for her nonappearance.  However, even without a reasonable explanation, it is important to consider whether the applicant has an arguable case.

14. It is clear that the applicant could not have succeeded before the Tribunal, as she did not have a sponsor, and this was an essential element of the requirements to obtain the visa.  The affidavit filed by the solicitor for the Minister confirms that the further application that applicant had made for sponsorship (referred to in the Tribunal decision) was later refused by the Department. 

15. However, it cannot be said that her application is completely futile, in that she has found a further business sponsor, who has offered her employment.  This sponsor appears to have made application on 26 August 2017, although had previously obtained approval as a sponsor in October 2015.  This evidence was placed before the Court by way of affidavit from the applicant filed on 28 August 2017.  If the matter were remitted for rehearing by the Tribunal, the applicant would be able to rely upon her current claim of potential sponsorship.

16. The applicant was not able to articulate the specific error on the part of the Tribunal, other than to make general complaints about the failure of the Tribunal to provide her with a further adjournment. 

17. The relevant matters for consideration when the Tribunal is asked to adjourn proceedings were discussed in Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18.

18. In this case, the Tribunal had previously adjourned the review to allow a decision with respect to the second sponsor’s nomination. The Tribunal discussed and considered the relevant matters weighing in favour of or against an adjournment.  The Tribunal had provided the application with an opportunity to deal with the cancellation of the first nomination, and had adjourned the matter for a considerable period of time already.

19. As counsel for the Minister points out, it would not be possible to characterise the refusal of any further adjournment as arbitrary, capricious or without common sense, or as being plainly unjust.  Rather, the decision was within the discretion of the Tribunal. In the circumstances, it is difficult to see that the applicant has an arguable case with respect to her primary complaint about the Tribunal.

20. The applicant confronts further difficulties, in that the explanation for her failure to file judicial review proceedings within the time limit rests upon her choosing to seek the alternative remedy of applying for ministerial intervention.  A delay for this reason is not an appropriate basis for granting an extension of time to bring judicial review proceedings.  On the material before me, even if the applicant had an arguable case, I would not be persuaded that it was appropriate to grant an extension of time, in circumstances where the delay was caused by an application for ministerial intervention.

21. I therefore find that the applicant does not have an arguable case for judicial review, nor an arguable case for an extension of time to bring judicial review proceedings as a result of having no adequate explanation for the delay.

22. Further, the applicant has not adequately explained her non-appearance when the proceedings in this Court were dismissed.

23. The application should therefore be refused with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  31 October 2017