Mathiasz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1433
•27 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mathiasz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1433
File number(s): SYG 1063 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 27 May 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Business Entry (Class UC) Subclass 457 visa – adjournment request sought – the application for an adjournment is refused. Legislation: Migration Act 1958 (Cth) ss 359A, 386D(2)
Migration Regulations 1994 (Cth) cl 457.223(4)(a), Schedule 2
Cases cited: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
Re Commonwealth of Australia; ex parte Marks [2000] HCA 67
Number of paragraphs: 8 Date of last submission/s: 27 May 2021 Date of hearing: 27 May 2021 Place: Parramatta Counsel for the Applicants: Mr Godwin Counsel for the Respondents: Mr Dadgar appeared on behalf of the First Respondent ORDERS
SYG 1063 of 2018 BETWEEN: GLADSTONE MATHIASZ
First Applicant
DIMINGUWARIGE LALANI MATHIASZ
Second Applicant
DOREEN JOSLIN FERNANDO
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
27 MAY 2021
THE COURT ORDERS THAT:
1.The application for an adjournment is refused.
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE HUMPHREYS
INTRODUCTION
This is a judgment on an interlocutory application in the matter of Gladstone Mathiasz & Others versus The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another. This matter has had a somewhat chequered history. On 29 September 2015 the first applicant applied for a Temporary Business Entry (Class UC) Subclass 457 visa. The first applicant’s wife and mother were included as family members of the unit. The first applicant’s prospective employer was MNS Holdings Pty Ltd. On 25 November 2015 the Minister for Immigration wrote to the first applicant to inform him that his prospective employer did not have an approved nomination, which was an essential criteria for the grant of his Temporary Business Entry (Class UC) Subclass 457 visa.
The applicants’ visa application was formally refused on 8 March 2016. The first applicant then sought review at the Administrative Appeals Tribunal. The Tribunal wrote to the first applicant on 14 February 2018 and sought to advise him of information that MNS Holdings Pty Ltd had been refused as a nominator. MNS Holdings Pty Ltd Holdings had sought a review of that decision in the Tribunal on 23 June 2016. On 13 February 2018 the Tribunal affirmed the decision not to approve that nomination. MNS Holdings Pty Ltd then sought judicial review of the Tribunal’s decision and, accordingly, this matter itself was held in abeyance pending the outcome of that appeal. The first respondent notes that on 13 March 2020, Judge Baird of this Court, dismissed the application by MNS Holdings Pty Ltd against the decision of the Tribunal to affirm the refusal of their nomination for the first applicant in the position of Quality Assurance Manager.
Mr Godwin has appeared on behalf of the first applicant this morning. The Court notes that Mr Godwin was only retained yesterday and in the circumstances there was no criticism of him for coming to Court here today to make an application on behalf of his client for an adjournment. This matter has been on foot in this Court since 2018. The applicant was well-aware of the fact that the matter was listed for final hearing today and, indeed, this application appears to be a belated attempt at the last minute for him to seek to yet further delay the matter.
The basis of the adjournment application is that the Court has been advised that MNS Holdings Pty Ltd will seek out of time to appeal against the decision of Judge Baird to the Federal Court. Whilst it is entirely a matter for the Federal Court as to whether or not they would grant leave to file out of time, one must consider that the length of time that has expired would be a factor that might well weigh considerably against the company in the Federal Court. The Court simply notes that. That is a matter that they will need to indicate, as to why it is that MNS Holdings Pty Ltd has not sought to agitate that matter, if they felt that there were grounds to do so in relation to Judge Baird’s decision before today.
The Court is conscious of the need that there be finality in relation to administrative decisions. In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], Gyles J said:
[62] …there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.
That decision also followed comment by the High Court on the significant public interest in the finality of administrative decisions in Re Commonwealth of Australia; ex parte Marks [2000] HCA 67 in which McHugh stated at [15] to [17] the following:
[15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
[16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay…
It then goes on to talk about a number of other issues. At [17] the following is said:
[17] An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice…
As the Court has previously stated, this matter has been before the Court since 2018. It appears to be a very belated attempt to seek a further adjournment in order to avoid what might be an unfavourable outcome. For the reasons that the Court has indicated, bearing in mind the lack of action on behalf of MNS Holdings Pty Ltd, the fact that this matter has been delayed considerably, and the fact that this adjournment application is sought at 11.59 pm in terms of what is being sought, in the Court’s view, it is not in the interests of justice that this matter be adjourned further. The application for an adjournment is refused.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 June 2021
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