Mathiasz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 1436

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mathiasz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1436

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 whether the Tribunal erred in its reliance on the existence of a jurisdictional fact that did not exist – whether jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 359A, 386D(2)

Migration Regulations 1994 (Cth) cl 457.223(4)(a), Schedule 2

Number of paragraphs:

15

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 name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $7328.00.

REASONS FOR JUDGMENT
(As revised from the transcript)

JUDGE HUMPHREYS

INTRODUCTION

1. This is a judgment in relation to the substantive application of Gladstone Mathiasz & Others v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another.

2. On 29 September 2015 the first applicant applied for a Temporary Business Entry (Class UC) Subclass 457 visa. The second applicant, his wife, and the third applicant, his mother, were included as members of the family unit. The first applicant’s prospective employer was MNS Holdings Pty Ltd. On 25 November 2015 the first respondent wrote to the first applicant to inform him that as his prospective employer did not have an “approved” nomination, which was an essential criteria for the grant of a Temporary Business Entry (Class UC) Subclass 457 visa, his application was unlikely to be successful. On 8 March 2016 the delegate of the Minister for Immigration (“the delegate”) refused to grant each applicant their visa on the basis that the nomination of the first applicant made by a person who was a standard business sponsor had not been approved. Accordingly, the first applicant did not meet cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

3. The applicant sought merits review in the Administrative Appeals Tribunal.  On 14 February 2018 the Tribunal wrote to the applicants’ to invite them to comment on the following information:

   a)   The first applicant was nominated by MNS Holdings Pty Ltd for the position of quality assurance manager;

   b)   The nomination application made by MNS Holdings Pty Ltd  was refused on 8 March 2016;

   c)   MNS Holdings Pty Ltd sought review of that decision in the Tribunal on 23 June ’16;

   d)   On 13 February 2018 the Tribunal affirmed the delegate’s decision not to approve the nomination.

4. On 21 March 2018 the Tribunal made an oral decision to affirm the delegate’s decision pursuant to s 386D(2) of the Migration Act 1958 (Cth) (“the Act”).  At the request of the applicants’, written reasons were then provided for that decision.  The applicants’ now seek judicial review of that decision. 

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION.

5. The Tribunal’s decision is very brief. In paragraph 6 of its decision, the Tribunal found on the evidence before it, that at the time of the decision the first applicant was not the subject of an approved business nomination that had not ceased, nor was there an approved nomination of occupation in relation to the one sought by the first applicant that had not ceased. The Tribunal found that the applicant did not satisfy the requirements of cl 457.223(4)(a) of the Regulations.

6. As the first applicant did not meet the criteria for the grant of his visa, the second and third applicants’ could not be granted visas as members of his family unit.

   GROUNDS OF JUDICIAL REVIEW

7. A single ground of judicial review is relied upon in an Amended Initiating Application filed by this Court on 31 July 2019.  It is as follows:

   Ground One

   The Tribunal erred in its reliance on the existence of a jurisdictional fact that did not exist, that jurisdictional fact being that the nomination application made by MNS Holdings Pty Limited had been refused by the Tribunal.

   THE APPLICANT’S SUBMISSIONS

8. Counsel for the applicants’ at that time, in written submissions, noted that the Tribunal properly put information that was before it pursuant to s 359A of the Act that the nomination of the first applicant’s proposed nominator, MNS Holdings Pty Ltd, had been refused by the Department on 8 March 2016 and by the Tribunal on 13 February 2018.  That information was correct at the time it was put to the first applicant, however, MNS Holdings Pty Ltd then sought judicial review of the nomination application in this Court and the application was pending as at the time of the decision.

9. Then Counsel for the applicants’ conceded that if the application made by MNS Holdings Pty Ltd to this Court was dismissed, the current application by the first applicant must also be dismissed. 

   THE FIRST RESPONDENT’S SUBMISSIONS

10. 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 decision of the delegate to refuse the nomination of the first applicant for the position of Quality Assurance Manager.

11. As a result, the jurisdictional fact relied upon by the applicants’ as the foundation of their case no longer exists.  In these circumstances, the applicants’ ground of review cannot be sustained.

    CONSIDERATION

12. Mr Godwin, who appeared for the applicants’ this morning, sought an adjournment of the matter.  Mr Godwin, suggested that MNS Holdings Pty Ltd had indicated that they were proposing to seek leave to appeal out of time in relation to the decision of Judge Baird.  The Court has considered that application but in separate reasons the Court has refused to grant an adjournment for the reasons it gave.  Subsequently, as a result, this case revolves around a very discrete issue, and it is a regrettable example of the complicated and lengthy review process that can exist in relation to migration matters.

13. There has been a considerable time between the original delegate’s decision and this matter coming on for final hearing before the Court today.  The entire process has taken in excess of five years, and that is a matter of regret to everybody.  It is in the applicants’ interests that this matter be determined at an early point in time.  It is also, the Court’s view, in the public’s interest that this matter should have been determined at an early point of time.  The lengthy time delay is a reflection of the sheer number of matters before both the Tribunal and this Court in the migration area and the resultant delays in the hearings of matters.  Such delays are not in the interests of applicants’ or the administration of justice.

14. In order to be granted the visa that the first applicant sought, he required an approved nominator employer.  The nomination by MNS Holdings Pty Ltd was refused by the delegate.  That refusal was affirmed by the Tribunal.  An application for judicial review of the Tribunal’s decision was dismissed by this Court on 13 March 2020.  Then Counsel for the applicants’ conceded in these circumstances that the current application cannot succeed as the first applicant does not meet the relevant criteria for the grant of a Temporary Business Entry (Class UC) Subclass 457 visa.  That concession was properly made.  The Court agrees with that concession.  There is simply a condition precedent missing that the first applicant cannot satisfy.  It may well be that the first applicant can make a further application for a visa with his employer, but that is a matter for the first applicant to pursue now. 

    CONCLUSION

15. Accordingly, the application is dismissed.

    The Court notes that written reasons for judgment have been requested by the Appeals Division of the Federal Court on 23 June 2021. The written reasons have been prepared and published on 28 June 2021.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       28 June 2021