Kim v Minister for Immigration
[2020] FCCA 1488
•8 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1488 |
| Catchwords: MIGRATION – Review of decisions – judicial review – application – extension of time – no prospects. |
| Legislation: Migration Act 1958 (Cth), ss.362(1A)(b), 477 |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 |
| First Applicant: | SIN WOONG KIM |
| Second Applicant: | KYUNGHWA KIM |
| Third Applicant: | NADO KIM |
| Fourth Applicant: | YERIN KIM |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 873 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 4 June 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 8 June 2020 |
REPRESENTATION
| The Applicants in person |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 9 October, 2019 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.64.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 873 of 2019
| SIN WOONG KIM |
First Applicant
| KYUNGHWA KIM |
Second Applicant
| NADO KIM |
Third Applicant
| YERIN KIM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 29 June, 2017 the first applicant made application for an Employer Nomination (Permanent) (Class EN) 186 (Employer Nomination Scheme) visa. The second, third and fourth applicants applied for a visa as part of the first respondent’s family group. They advanced none of their own claims to a grant of a visa. The applications were refused on 25 June, 2018.
The first applicant applied for a review of the delegate’s decision but that was dismissed on 12 August, 2019 because the first applicant failed to attend the hearing convened by the second respondent for the purposes of the review application. The first applicant subsequently applied for reinstatement of his application but on 3 September, 2019 that was also refused.
The applicants now seek an extension of time within which to bring an application for judicial review in respect of the second respondent’s refusal to reinstate the application for review. An extension of time is needed because the application was filed one day outside of the 35 day time period limited for filing judicial review applications such as this. The applicants seek an extension of time pursuant to s.477 of the Act.
At the commencement of the hearing before me, Mr Kim appeared. There was no separate appearance by the other applicants. Mr Kim sought an adjournment of the proceedings so that he could obtain legal advice. He said in argument that he had recently been in contact with Legal Aid, the Refugee and Immigration Legal Service and LawRight about his case. He said that he commenced to make those inquiries in late January this year. His application had been commenced on 8 October, 2019 and directions were made in the application on 20 November, 2019. It seems uncontroversial that he has not complied with any of those directions. Between when the directions were made and when he commenced making enquiries in late January, he did nothing to prepare this case. I refused his request for an adjournment. No proper basis for an adjournment was made out by the applicant.
To secure an extension of time, the applicants must demonstrate that it is necessary in the interests of the administration of justice to make an order for the sought after extension. To assist me to determine the application for an extension of time, the first respondent directs my attention to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [18] to [23]. There is no exhaustive list of matters that must to be taken into account on such an application and each application needs to be determined according to its own facts. However, the relevant factors for consideration are often generally seen to be the extent of the delay, the explanation for the delay, any prejudice to the respondent to the proceeding, any impact on the applicant by a refusal of the sought after extension, the interests of the public at large and the merits of the substantive application.
In the present case the first respondent concedes that the delay here is minimal. It is only one day. It is, nonetheless outside of the 35 day time limit specified for the commencement of these proceedings. The first respondent also concedes that is no identifiable prejudice to him if the extension were granted. To be weighed against that, however, is the public interest in the finality of litigation in relation to administrative decisions and the efficient allocation of the Court's resources.
Finally, the first respondent submits that the application that the applicants wish to prosecute does not have sufficiently good prospects of success to warrant the grant of an extension of time.
The minimal length of the delay in commencing these proceedings and the lack of prejudice to the first respondent weigh in favour of the grant of the application for an extension. So too, does the fact that without the extension the applicants will be precluded from pursuing any relief in respect of the second respondent’s decision and ultimately, the refusal of the visa for which they applied.
The absence of an explanation for the delay (slight as it is) and the public interest in the finality of litigation in relation to administrative decisions weigh against the grant of the extension. In the present case, however, the most significant factor which attracts the greatest weight is the prospects of success of the proposed application for review. For reasons that follow, in my view those prospects are poor; so poor as to warrant the refusal of the extension of time.
The decision timeline
Soon after the first applicant made application for the visa, a delegate of the first respondent wrote to him (on 26 May, 2018) inviting him to comment on certain information. The criteria for the visa for which the first applicant had applied required the first respondent to be satisfied that there was an approved nomination of him by an employer at the time of the decision about the grant of the visa. The first applicant nominated an employer, J & C Interiors Pty Ltd. However, an application by that employer for sponsorship approval in respect of the applicant had been refused before the applicants’ visa application. By its letter, the delegate put this information to the first applicant for his comment. Nothing in the court book suggests that the applicant responded to that letter.
Accordingly on 25 June, 2018 a delegate of the first respondent decided to refuse the applicant’s visa application. The reasoning was succinct:
In this case, I am not satisfied that clause 186.223 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
186.223
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(4) The position is still available to the applicant.
(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.
On 26/05/2018 the nomination lodged by J & C INTERIORS PTY LTD, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection.
As the appointment has been refused, clause 186.223(2) is not met.
As a result, Mr Kim does not satisfy the requirements of clause 186.223.
Decision
As clause 186.223 is not satisfied, I find the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied. Therefore, I refuse the application by the applicant for an Employer Nomination Scheme (subclass 186) visa.
The applicant’s application to the second respondent for review of the delegate’s decision was regularly commenced. On 11 December, 2018 the second respondent wrote to the applicants (via their migration agent) and pointed out that:
It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide us with evidence about this.
The applicants requested an extension of the time within which to responded to the second respondent’s request on three occasions. The extensions were granted. A fourth request for an extension of time to respond was declined on 4 April, 2019. However, that refusal was academic because the second respondent did not immediately decide the application for review. On 12 June, 2019 the second respondent invited the applicants to attend a hearing to give evidence and present arguments in support of the application of review. The hearing was set for 9 August, 2019 at 10.00am.
At 3.10pm on 8 August, 2019, the day before the hearing, the applicants, by their agent, sought that the hearing be adjourned. The basis for the request was expressed as follows:
Please find the attached request for hearing postponement from the applicant.
The applicant wishes to have the hearing for the nomination and visa application combined, if possible.
The reason for the visa refusal was based on the outcome that the nomination application was refused.
So it is the applicant's view that it would be fair for the nomination application be considered first, before the visa application is being assessed.
The request included a copy of the Nomination Refusal Notice in respect of the nomination refusal decision made on 26 May, 2018. It also enclosed a copy of a review application against that refusal apparently made on 7 August, 2019 (well after the delegate’s decision in the respect of the applicants’ visa applications and 2 days before the hearing of their review application). There was an accompanying request to combine the applicants’ review application with that of the employer.
The request for a postponement of the hearing was refused on 9 August, 2019. The decision was notified to the applicant’s agent at 9.12am on 9 August, 2019. Given that the request for the postponement was made only the day before, the response time was not unreasonable and it would have been reasonable for the applicants to be ready to proceed with the hearing in the event that the postponement request was refused.
The evidence in the court book shows that at the appointed time, the applicants or agent did not appear at the hearing. The second respondent attempted to contact the applicant’s agent by telephone. Contact could not be established.
On 12 August, 2019 the second respondent decided to affirm the decision under review. The circumstances leading to the hearing and the request for a postponement were recorded in the second respondent’s reasons. The second respondent reasoned:
4. The Tribunal has very carefully considered the applicants' request for adjournment of the scheduled review hearing, however decided not to grant it as the issues raised in Ms Kim's correspondence of 8 August 2019 could be canvassed during the hearing. Accordingly, the Tribunal Registry wrote to Ms Kim by email at 9:12am on 9 August 2019 advising that the request for adjournment was not granted and reminding of the potential consequences for the applicants if they did not attend the scheduled review hearing. The Tribunal Registry also attempted to call Ms Kim on the telephone prior to the commencement of the scheduled review hearing, but she did not answer and a message was left for her to return the call urgently. Ms Kim failed to do so and has not yet displayed the courtesy to respond to the Tribunal's attempts to contact her on 9 August 2019.
5. The applicants did not appear before the Tribunal on the day and at the scheduled time and place of the review hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a review hearing in accordance with s.379A(5) of the Act. No satisfactory reason for the non-appearance has been given.
6. In these circumstances, the Tribunal has decided to dismiss the application for review without further consideration of it or the information before the Tribunal.
The notification of the second respondent’s decision to the applicants and their agent carried with it information about applying to reinstate the application. The applicants duly applied for reinstatement by an application made on their behalf by their agent on 26 August, 2019.
On 3 September, 2019 the second respondent determined to refuse the reinstatement application. It gave written reasons for doing so. As to the reasons for the applicants’ non-appearance at the hearing, the second respondent accurately recorded the material put by the applicants about that as follows:
The request for reinstatement contends that the first named applicant, Mr Sin Woong Kim, took ill on the day of the hearing and could not attend. A medical certificate from Dr Hur dated 9 August 2019, with respect to the first named applicant, provides:
“He is suffering from high fever and severe headache
And would need medical attention for at least 2 days barring complication.”
10. The Tribunal notes that this medical certificate and information regarding the first named applicant being ill were not brought to the attention of the Tribunal until 3:11pm on 26 August 2019, being the last day to request reinstatement of the application. It is worth pausing to reflect that Ms Kim indicates in the reinstatement request that she was advised of the illness on the evening of 9 August 2019. The request for reinstatement also maintains that no telephone message from the Tribunal was received by Ms Kim on 9 August 2019.
The reasons show that the second respondent considered whether the review application had any prospects of success and whether it would have been appropriate to adjourn the scheduled review hearing on 9 August, 2019 at the request of the applicants. It properly instructed itself about the law to be applied by reference to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, Manna v Minister for Immigration and Citizenship [2012] FMCA 28 and Minister for Immigration and Citizenship v Li [2013] HCA 18. The second respondent recorded that there was no evidence of an approved nomination and that the nomination review application was lodged approximately 14 months after the relevant primary decision. The second respondent considered whether the primary nomination decision had been properly despatched to the nominator through its representative, who was also the same person as the applicants' representative.
The second respondent thought it relevant and important that it was not expeditiously appraised of the first applicant's medical illness on the day of the scheduled review hearing or soon thereafter. The second respondent though that the medical certificate dated 9 August, 2019 was “bland” in character in the manner described by the Court in Singh v Minister for Home Affairs [2019] FCA 723.
The second respondent thought that the evidence put before the Tribunal was inadequate to explain the Applicants' nonappearance at the review hearing. It preferred the evidence of the Tribunal officer who placed a telephone call to the applicants' agent on the morning of the scheduled review hearing to the evidence of the applicants' agent who claimed not to have received such a message from the second respondent.
The second respondent concluded:
12. The Tribunal considers that Ms Kim has attempted to enable undue delay on the part of the applicants in the present review, by being involved in the manifestly late lodgement of the nominator's review application and corresponding request at short notice for adjournment of the scheduled review hearing. The Tribunal notes that the primary decision to refuse the application of the nominator on 26 May 2018 was conveyed to Ms Kim by email, according to the material submitted through her in the present review. Following careful consideration,
the Tribunal forms the view that the primary decision with respect to the nominator was properly despatched and is not adversely affected in the manner identified by the Court in DFQ17 v MIBP [20191 FCAFC 64. Therefore, prima facie, the application for review lodged by the nominator is manifestly out of time in the view of the Tribunal.
13. Given the applicants in the present review lack an approved nomination from the nominator, and the review application in respect of the nominator is manifestly out of time, the Tribunal is satisfied that the present application for review has no prospects of success. Put simply, this application is futile.
14. Further, the Tribunal forms the view that Ms Kim did not expeditiously appraise it of the illness outlined in the medical certificate dated 9 August 2019, in respect of the first named applicant, as this information was not provided to the Tribunal until 3:11pm on 26 August 2019. In forming this view, the Tribunal notes that Ms Kim's own submissions dated 26 August 2019 reveal she was advised of the illness during the evening of 9 August 2019. On balance, the Tribunal is satisfied that Ms Kim conveyed the information regarding the illness in a tardy fashion in order to further delay the present review application.
…
19. Following careful consideration of the evidence, the Tribunal is satisfied that the present application for review has no prospects of success, it was not appropriate to adjourn the scheduled review hearing, and the decision to dismiss the application should be confirmed. Additionally, the Tribunal draws the course of action adopted by Ms Sarah Kim (MARN 1573593) of Hansol Migration Professionals Pty Ltd, in attempting to enable undue delay of the present review application, to the attention of the Department for its consideration.
The proposed grounds of review
In their application, the applicants promote two grounds of review. Neither are particularised and the first applicant could not advance them in oral argument to me. They are in the following terms:
(a) that the Tribunal “failed to accord procedural fairness throughout the process”; and
(b) that the Tribunal “has not considered the prospect of the new nomination that was being assessed by the Department of Home Affairs” (the Department).
There is nothing in the evidence before me that would lead to the conclusion that the second respondent failed to accord procedural fairness throughout the process. In fact, the opposite is apparent. The second respondent granted extensions of time within which the applicants might respondent to its request for information concerning the employer nomination on three occasions. Whilst the fourth was not granted, for the reasons I have set out above, the failure to grant the fourth extension was academic given that second respondent then went on to invite the applicants to a hearing some months later.
The second respondent’s refusal to adjourn the hearing was in all of the circumstances entirely reasonable. No prejudice could have been caused to the applicants by that failure because, as the second respondent’s letter refusing the adjournment points out: “…the issues raised in your correspondence of 8 August 2019 may be fully discussed in the hearing”.
Section 362B of the Act was clearly engaged. In the circumstances that developed on 9 August, 2019 s.362B(1A)(b), permitted the second respondent to dismiss the application without any further consideration of the application or information before it.
The second respondent’s reasons on the application to reinstate the review were closely reasoned and intelligible. They demonstrate an appreciation of the law to be applied and an application of that law to the facts as the second respondent found them to be. They reveal no want of procedural fairness.
The second ground of the proposed review alleges that the second respondent did not consider “the prospect of the new nomination that was being assessed by” the first respondent’s Department. The first respondent accurately submits that the material before the second respondent did not disclose that the first applicant was the subject of a new nomination that was being assessed by the Department.
It is more likely that this ground is intended to refer to the application for review that had apparently been made in respect of the nomination refusal. It is apparent that the second respondent considered the nomination review application as part of its deliberations on the reinstatement application. The second respondent expressly refers to the material provided by the applicants' agent on 8 August, 2019 and expressly refers to the nomination review application. The second respondent found that the nomination review application was manifestly out of date and was likely engineered by the applicants’ agent to create delay.
The existence of the nomination review application was a matter that was relevant to a consideration of the reinstatement application. The second respondent clearly appreciated that and took it into consideration when it exercised its discretion to reject the reinstatement application.
Conclusions
This is an application to extend time within which to commence an application for review and the proposed grounds of review are to be assessed at a reasonably impressionistic level. But even assessing the proposed grounds of review at that level does not reveal an arguable case of jurisdictional error by the second respondent. I am not satisfied that it is necessary in the interests of the administration justice to make the order for the extension of time sought by the applicants.
The application for an extension of time filed on 9 October, 2019 must be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on delivered on 5 June 2020.
Associate:
Date: 8 June 2020
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