Kaur v Minister for Immigration and Anor (No.2)

[2017] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 618

Catchwords:
MIGRATION – Judicial review – oral application in a case to re-open case at time listed for delivery of judgment on substantive application.

PRACTICE AND PROCEDURE – Oral application in a case to re-open case at time listed for delivery of judgment on substantive application.

Cases cited:

Ample Source International Limited v Bonython Metals Group Pty Limited (No 6) [2011] FCA 1484; (2011) 285 ALR 488
Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587
Hasan & Ors v Minister for Immigration & Anor [2016] FCCA 1049
Kaur v Minister for Immigration & Anor [2017] FCCA 564
SZLJN v The Minister for Immigration & Citizenship [2008] FCA 768

Applicant: MANPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 332 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Perth

Delivered on: 29 March 2017

REPRESENTATION

For the Applicant: In person (with an interpreter made available)

Counsel for the First Respondent: Mr A Gerrard

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS

1. The applicant’s oral application in a case to re-open the proceedings made 29 March 2017 (“oral application”) be dismissed.

2. The applicant pay the first respondent’s costs of the oral application in the sum of $294 by 29 April 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 332 of 2015

MANPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extemporaneously and revised)

Introduction

1. These are the Court’s ex tempore reasons for judgment in relation to an oral application in a case to reopen this matter. The matter was listed for judgment today, and reasons for judgment have been prepared and bear the name and citation Kaur v Minister for Immigration & Anor (2017) FCCA 564. For convenience, the Court will refer to them as Kaur (No 1).

2. In determining whether or not to reopen a case and allow further evidence to be led, the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Limited v Bonython Metals Group Pty Limited (No 6) [2011] FCA 1484; (2011) 285 ALR 488, in particular at [355] per Robertson J (“Ample Source”). Part of that test is the relevance of the proposed material. In Ample Source at [355] per Robertson J the Federal Court said as follows:

   Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139.  The threshold is lower than that which applies after the entry of judgment.  If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267.  The essential principle is that the Court should do justice as between the parties.  Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen.  There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle.

3. The Court further observes that:

   a)the decision to reopen a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] per Austin J (“Rich”); and

   b)in Rich, the New South Wales Supreme Court said the following factors are relevant to the exercise of a court’s discretion to re-open:

   i)the degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

   ii)the nature of the proceeding;

   iii)the extent to which the party seeking to re-open embarked upon calling the further evidence during the hearing;

   iv)whether calling the further evidence ought reasonably to have been foreseen;

   v)what explanation is offered for not having called the further evidence during the hearing;

   vi)the consideration of fairness that a respondent is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence that the respondent will adduce on the matters in question; and

   vii)the prejudice to a respondent in terms of delay and the completion of the proceedings and the consequential costs.

4. The Court also refers to what was said by the Federal Court in SZLJN v The Minister for Immigration & Citizenship [2008] FCA 768 where at [23] and [24] per Flick J the Federal Court said as follows:

   … the primary function of this Court is to resolve all such arguments as appropriately arise out of the decision the subject of appeal.  The central principle is to do justice between the parties. ... The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided. … An unrepresented appellant, in particular, should have no unnecessary impediment placed in his path.  But it is considered that this Court should be cautious in too readily permitting amendments to be made at the last minute in respect of appeals from decisions of the Federal Magistrates Court dismissing applications to review decisions of the Refugee Review Tribunal. … Considerable care needs to be exercised to ensure that the rights of unrepresented litigants are not prejudiced; but care also must be exercised to ensure that the processes of this Court are not abused.

5. Those principles, in the Court’s view, are equally applicable in general terms to a review in this Court from a decision of the Administrative Appeals Tribunal.

6. In re-opening this case, Ms Kaur has submitted three documents which have been marked as Exhibits 1, 2 and 3.

7. Exhibit 1 is a letter addressed to this Court and is effectively submissions. Those submissions, in summary, put forward what is said, firstly, to be the fact that another visa applicant has had success in obtaining a visa to work with the former sponsoring employer which the applicant, Ms Kaur, in these proceedings thinks is unfair to her because her case has been refused. Secondly, it is said that Ms Kaur and her family have migrated to Australia and spent several years here and that it would be unrealistic for the family to go back home (to India) and resettle themselves from scratch. Thirdly, that Ms Kaur says she is capable and skilled enough to work in Australia and, in addition, her employer is still standing by her side and is ready to sponsor her again if she is given a chance to re-lodge her application.

8. Exhibit 2 is a letter from what was the sponsoring employer who makes various observations with respect to the Tribunal decision, but ultimately conceding that they received a negative decision and a ban of three years on employing persons on subclass 457 visas.

9. It is not directly said, but it appears that that ban is the cause of the refusal of the employer sponsorship in this matter.  The former sponsoring employer goes on to observe that, subsequently, there have been approvals for two 187 and 186 subclass visa applications for employees of the former sponsoring employer, and that they still wish to sponsor Ms Kaur and they have a need for her in a position.

10. Exhibit 3 is a notice of decision from the Department of Immigration and Border Protection for an Amarjeet Singh for a position as cook with the former sponsoring employer of Ms Kaur. It is an approval dated 31 May 2016 in respect of a nomination lodged 17 September 2015 for a position of cook.

11. It suffices, for present purposes, to observe that the application to reopen is opposed by the Minister. The Court notes, in relation to the litigation history of the matter, that on 30 September 2015 a Registrar of this Court made orders allowing Ms Kaur to file any amended application or further affidavits by 25 November 2015, that on 2 November 2015, a judge of this Court amended those orders to allow an amended application and affidavits to be filed by the applicant on or before 9 December 2015, and that the matter was the subject of at least one vacated hearing during 2016 and was ultimately heard by the Court on 21 March 2017.

12. It is pertinent to observe, therefore, that Ms Kaur had ample opportunity, up to and including 21 March 2017, to either put material before the Court in accordance with the various orders, or at the hearing of the matter to seek to put such material before the Court.  The Court also observes that there must be some prejudice to the Minister in respect of an application made very late and, effectively, with little or no notice on the day on which judgment was otherwise due to be delivered on the substantive application. The gist of the matter, however, relates to the cogency and relevance of the material sought to be submitted by way of Exhibits 1, 2 and 3.

13. The personal circumstances of Ms Kaur and her family are not relevant to whether or not she met the criteria for the grant of the Regional Employer Nomination visa at the time of the relevant decision. The fact that the former sponsoring employer is still prepared to employ her also does not satisfy the relevant criteria. As this Court observed in Hasan & Ors v Minister for Immigration & Anor [2016] FCCA 1049 at [22] per Judge Smith:

    It was not possible for the applicant to do so [that is, satisfy the criteria] by relying on the later application for approval because that was not in the visa application: sub-cl.187.233(1)(b). For that reason, the Tribunal’s decision was not affected by jurisdictional error and the application must be dismissed.

14. The fact that the former sponsoring employer is prepared to employ and/or nominate Ms Kaur, again does not establish jurisdictional error in the Tribunal decision, which is the only issue for this Court.  The fact that other persons employed by the former sponsoring employer have obtained sponsorship subsequently is irrelevant to whether or not Ms Kaur met the criteria at the time of the relevant decision.  The reality is, as the Court has observed in Kaur (No 1), that what happens with others is irrelevant, for the reasons the Court has just indicated, and that nothing alters the fundamental fact referred to in Kaur (No 1) at [9] and [27] per Judge Lucev, that no decision other than to affirm the delegates visa decision in relation to Ms Kaur’s visa was legally open to the Tribunal.

15. In terms of the material which is now sought to be put before the Court by way of reopening and the reasons that are sought for reopening, nothing is put which alters that fact that the delegate’s decision was the only one open to the Tribunal having regard to the relevant criteria.  The Tribunal’s decision was correct in finding that that was the only decision open to the delegate, and for reasons which are set out in Kaur (No 1), there is no jurisdictional error in the Tribunal’s decision in so finding.  And in circumstances where there is nothing in the material and submissions sought to be put by way of reopening which can alter that situation, it is not appropriate that there be an order to reopen these proceedings.

16. So there will therefore be an order that the applicant’s oral application in a case to reopen the proceedings be dismissed.

17. There will be a further order that the applicant pay the first respondent’s costs of the application in a case made orally on 29 March 2017 by 29 April 2017, in the sum of $294.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 31 March 2017