Lin v Minister for Immigration and Border Protection
[2016] FCA 933
•3 August 2016
FEDERAL COURT OF AUSTRALIA
Lin v Minister for Immigration and Border Protection [2016] FCA 933
Appeal from: Application for extension of time: Lin & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 554 File number: NSD 486 of 2016 Judge: BROMBERG J Date of judgment: 3 August 2016 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal – dismissal of application for want of merit in the proposed appeal. Legislation: Migration Regulations 1994 (Cth) cll 857.213, 857.221 of Sch 2 (superseded) Cases cited: Lin & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 554 Date of hearing: 3 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the First Applicant: The First Applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The Second Applicant did not appear Solicitor for the First Respondent: Ms Saunders of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 486 of 2016 BETWEEN: NAISHU LIN
First Applicant
YANQIN HUANG
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
3 AUGUST 2016
THE COURT ORDERS THAT:
1.The Applicants’ application for an extension of time is dismissed.
2.The Applicants pay the First Respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an application for an order that an extension of time be granted to the applicants to appeal against a judgment of the primary judge published as Lin & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 554. The primary judge dismissed the applicant’s application for judicial review of a decision made on 10 February 2014 by the second respondent, formerly the Migration Review Tribunal and now the Administrative Appeals Tribunal (the Tribunal).
The applicants are citizens of the People’s Republic of China. The applicants are husband and wife. The first applicant applied for an Employer Nomination (Residence) (Class BW) visa (the visa) on 28 February 2011. That application was made on the basis that the first applicant was a cook with WXZ Enterprises Pty Ltd (WXZ). The second applicant applied as a member of the first applicant’s family unit.
On 17 April 2012, a delegate of the first respondent (the Minister) refused the applicants’ application for the visa on the basis that the first applicant did not satisfy cll 857.213 and 857.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The applicants then applied to the Tribunal for review of the delegate’s decision. The Tribunal found that the first applicant failed to satisfy cl 857.221 of Schedule 2 of the Regulations at the time of the Tribunal’s decision.
The Tribunal reasoned, correctly in my view, that first, cl 857.213(a) required that the first applicant had been nominated for appointment in the business of an employer; second (and in the context of the relevant facts), that the first applicant had been nominated by WXZ for an appointment in its business; and third, that, at the time of the Tribunal’s decision, the nomination for appointment in the business of WXZ had been approved and not withdrawn. The Tribunal noted that, at the time of its decision, the appointment nominated by WXZ had not been approved. Consequently, the Tribunal found that the first applicant did not satisfy cl 857.221 at the time of the Tribunal’s decision.
As the first applicant had failed to satisfy the primary criteria for the grant of a visa, the Tribunal concluded that the second applicant (and their child) necessarily failed the relevant secondary criteria.
At [7] of the Tribunal’s reasons, the Tribunal recorded that WXZ’s application for review of the delegate’s refusal of its nomination application had been rejected by the Tribunal on 9 January 2014. I note also that at [15] of the primary judge’s reasons, her Honour recorded that an application made by WXZ for judicial review of the Tribunal’s rejection of its application was dismissed on 3 February 2016.
As I have stated already, the primary judge dismissed the applicant’s application for judicial review of the decision of the Tribunal. As the applicants have sought to appeal that judgment out of time, the leave of the Court is required extending the time for the applicants to institute an appeal. The test for the grant of leave in those circumstances is well settled. The Court will have regard to the following three factors:
(1)The extent of the delay and the explanation given for it;
(2)The prejudice to the respondent which may have been occasioned by the delay; and,
(3)The merits of the proposed appeal.
It is not necessary for me to dwell on the first two factors. The delay was short. An explanation has been provided and the Minister has suffered no prejudice. The Minister contends, however, that the application to extend time should be rejected because the proposed appeal lacks merit and enjoys no real prospect of success. I agree.
To explain why, I need to turn first to the proposed grounds of challenge to the primary judge’s judgment. It is not entirely clear what those proposed challenges are.
A draft notice of appeal which accompanied an affidavit of the first applicant identifies the proposed ground of appeal as follows:
My employer WXZ had lodged a new court case in March 2016 for my nomination application.
However, in the body of the first applicant’s affidavit the first applicant relevantly says this at [3]–[6] (as stated and uncorrected):
…
[3]My FCC case SYG 408/2014 was dismissed due to my sponsor failed to attending FCC hearing and was dismissed. My sponsor WXZ enterprises Pty Ltd lodged their further federal court case in March in Melbourne.
[4] My visa application was refused due to my employer’s nomination application was refused and my employer’s nomination application is currently reviewed by court. It would be fair for to make the decisions on my case after the decisions of my my employer’s nomination application’s review.
[5]There are jurisdictional errors for the purposes of s 75(v) of the Constitution when MRT reviewing my case. MRT breached the rules of procedural fairness.
[6]My application will got approved if my employer’s nomination application is approved. There are reasonable grounds for believing that my application has a reasonable prospect of success.
Attached to the affidavit is an email which appears to have come from this Court and which appears to have been forwarded to “acconsulting”. It refers to a lodgement of a document. It is not clear what document was lodged, although it seems from the text that the document may have had some relationship with WXZ.
The applicants are not legally represented. The first applicant appeared this afternoon and was assisted by an interpreter. I will say some more about the submissions made by him shortly, but those submissions, to some extent, clarified the nature of the complaints that the applicants seek to pursue and the kind of relief that they seek.
It seems to me, on the basis of the material in the first applicant’s affidavit, that the applicants have identified one single challenge to the primary judge’s judgment. Putting that challenge as favourably as I can for the applicants, what the applicants are saying is that the primary judge erred by failing to identify, as a jurisdictional error, the failure of the Tribunal to accord procedural fairness to the applicants.
The other matters raised by the first applicant’s affidavit, as set out above, and also raised in submissions made to me this afternoon do not identify any challenge to the correctness of the primary judge’s judgment. They constitute no more than a contention that it would be fair for this Court to defer its determination of this application, pending the determination of an application said to have been made in a court by WXZ. I will assume for current purposes that WXZ has made an application to a court seeking that the rejection by the Tribunal of WXZs nomination application be set aside. That seems to me what the applicants are trying to establish as a basis for the relief which they seek.
The applicants are apparently of the view that their failure to meet the cl 857.221 criteria can be cured if the rejection by the Tribunal of WXZ’s application is set aside by a court. That view seems to me to be misconceived but, more pertinently to this application, whatever court proceedings have been brought by WXZ, those proceedings can have no bearing on the correctness of the primary judge’s judgment and do not, therefore, provide any basis for thinking that the applicants have a prospect of success on any appeal.
The first applicant candidly submitted that “the Federal Circuit Court did nothing wrong”. He urged me to wait until WXZ’s case is finalised. He wanted extra time to await that result. Really, what he desires (and understandably so), is an opportunity for another nomination to be made and approved in order that he can stay in Australia. He says candidly, and I accept his submission, that he does not understand what has really happened to him and why the nomination application was not approved. He says, and I accept, that he did not do anything wrong. Despite all of that, it seems to me that the kind of relief that the applicants seek is not relief that any appeal can provide to them.
Insofar as what was said to me by the first applicant was intended to be an application for an adjournment of this proceeding, I reject that application because I am not satisfied that any proceeding in which WXZ is involved can have any bearing on the outcome of this application or on the outcome of any appeal that may be instituted if this application succeeds.
As to the asserted failure of the Tribunal to accord procedural fairness to the applicants, the allegation made by the applicants is unparticularised. The primary judge dealt with a similar unparticularised allegation at [27]–[28] of the primary judge’s reasons by reference to the discussion at [22]–[25] of those reasons. I can discern no error in the primary judge’s analysis.
Despite my sympathy for the applicants’ predicament, given that the proposed appeal has no real prospect of success, the application for an extension of time to institute the proposed appeal must be dismissed. The applicants should pay the first respondent’s costs of the application.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 15 August 2016
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