METTU v Minister for Immigration

[2017] FCCA 3144

FEDERAL CIRCUIT COURT OF AUSTRALIA

METTU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3144

Catchwords:
MIGRATION – Application for extension of time to apply for judicial review – application filed one year and one month out of time – proposed substantive application has no prospects of success – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 360, 379C, 477.

Migration Regulations 1994 (Cth), sch.2, cls.857.213, 857.221.

Cases cited:

Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

Applicant: JITHIN METTU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 906 of 2016

Judgment of: Judge Hartnett

Hearing date: 27 November 2017

Delivered at: Melbourne

Delivered on: 27 November 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Caon

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) the application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 906 of 2016

JITHIN METTU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’), for an extension of time to apply for judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 13 February 2015. The Tribunal affirmed the decision of the delegate of the First Respondent not to grant the Applicant an Employer Nomination (Residence) (Class BW) visa (‘the visa’).

2. The application was filed on 3 May 2016. Any application in relation to the Tribunal decision should have been made within the 35 day period specified by s.477(1) of the Act, that is, by 20 March 2015. The Applicant is therefore one year and one month out of time.

3. Section 477(2) of the Act is as follows:

   “      (2)     The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)     an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)     the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

4. The Court has before it, the evidence as contained in the Court Book; the response of the First Respondent seeking dismissal of the application and costs; written submissions of both the Applicant and First Respondent; the Applicant’s submissions being filed on 2 November 2016 and those of the First Respondent on 23 November 2016. 

Background

1. On 11 April 2012 the Applicant applied to the Department of Immigration and Border Protection (‘the Department’) for an Employer Nomination (Residence) (Class BW) visa subclass 857.  The visa was sought on the basis of an appointment to work in the nominated position of “cook” with the Applicant’s sponsoring employer, Sweet India Proprietary Limited.  Sweet India Proprietary Limited also intended to sponsor two other persons.

2. At the time of application, (Class BW) contained two subclasses:  subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme).  As was said by the Tribunal in its Statement of Decision and Reasons (‘the Decision Record’) at paragraph 3:

   “… As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.”

3. Relevantly, cl.857.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) required that:-

   “The appointment mentioned in paragraph 857.213 (a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c)     continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

   Note:   See regulation 5.19 for the criteria for approval of the appointment.”

4. On 15 February 2013 a delegate of the First Respondent (‘the delegate’) refused to grant the visa because the Applicant did not meet clause 857.221 of Schedule 2 to the Regulations because the appointment referred to in clause 857.213 had not been approved. The delegate found that the sponsor’s nomination had not been approved, it having been refused by the Department on 4 February 2013.

The Tribunal

1. On 7 March 2013 the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant nominated a migration agent as his representative in relation to the review.  A copy of the delegate’s decision was enclosed with the application for review. 

2. On 2 January 2015 the Tribunal wrote to the Applicant inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The invitation to appear before the Tribunal noted the hearing date of 27 January 2015. The invitation also, relevantly, advised the Applicant that:

   “This hearing has been scheduled jointly with two other nomination reviews and each of three visa reviews associated with the respective nominations.” 

3. On 27 January 2015 the Applicant appeared before the Tribunal.  The Applicant was represented in relation to the review by his registered migration agent.  The hearing formed part of a joint hearing that included a hearing in the related nomination application review made by the sponsor, Sweet India Proprietary Limited, and the hearings in relation to the review of the delegate’s decision to refuse the visa applications for the two other persons intended to be sponsored by the proposed sponsoring employer.

4. In the hearing conducted on 27 January 2015, the Tribunal made an oral decision to affirm the delegate’s decision to refuse the sponsor’s nomination application. The Tribunal noted in paragraph 10 of the Decision Record:-

   “… The Tribunal put this information to the visa review applicant pursuant to section 359AA, as if accepted it would form part of the reason for affirming the review on the basis that the applicant failed to meet cl.857.221 in the absence of an approved nomination.”

5. The Tribunal adjourned the visa review hearing to enable the visa Applicant to make a response. The Tribunal considered the Applicant’s response but determined that it did not overcome a conclusion by the Tribunal that the Applicant failed to meet the mandatory nomination criteria in cl.857.221.

6. The Tribunal noted in the Decision Record (in paragraphs 12 and 13) that it thereafter proceeded as follows:-

   “12. The representative requested the Tribunal to defer finalisation of the visa review to allow the applicant to consider his position, including with regard to obtaining a new nomination through the same employer and the same appointed occupation of cook. 

   13.  The Tribunal agreed to defer the review for a period of time pending investigation into the applicant’s capacity to meet the nomination criteria with a new nomination, in view of the refusal of the initial nomination.”

7. Subsequently, on 30 January 2015, the Tribunal wrote to the Applicant setting out reasons why it would defer making its decision until 12 February 2015 but that it had determined that the Applicant would be unable to meet the requirements of clause 857.221 of Schedule 2 to the Regulations and invited further submissions from the Applicant in that regard. The Tribunal informed the Applicant that:-

   “… While it may have been possible to meet the criteria in cl.857.221 on the basis of a new nomination, the new nomination must have been from the same nominating employer mentioned at the time of application and identify the same position in the same business of that specific employer in relation to the visa applicant as that at time of application, and importantly any new nomination can only have been one made prior to 1 July 2012, when a fundamentally new scheme was introduced. 

   The Tribunal takes the view that it is not possible for you to meet the criteria in cl.857.221 relying on a nomination made on or after 1 July 2012. 

   ...”

   The Applicant did not provide a response to the information put to it under s.359AA of the Act.

8. On 13 February 2015 the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa. The Tribunal considered the Applicant’s response at the hearing in relation to its decision to affirm the nomination review, however concluded it did not overcome the fact that the Applicant failed to meet the mandatory nomination criteria in clause 857.221 of Schedule 2 to the Regulations.

9. The Tribunal noted that it had affirmed the nomination review relating to the Applicant and had also determined that the Applicant was unable to obtain a further nomination under the current scheme that would satisfy cl.857.221 of Schedule 2 to the Regulations. It therefore found that the position of cook with the sponsor mentioned in cl.857.213 had not been approved and, accordingly, the Applicant failed to satisfy the mandatory nomination criteria in cl.857.221.

Application for Extension of Time

1. The period of one year and one month is a considerable delay. The Applicant does not put before the Court any acceptable explanation either in his affidavit of 3 May 2016 on which he relies or in the submissions filed by the Applicant. The Applicant has not explained why he was unable to file his application within the legislatively provided for time period. He contends in oral submissions made this day, that “Nobody guided me properly”. He otherwise submits that his migration agent was the cause of his extensive delay. 

2. As the First Respondent submits, the onus is very clearly on the Applicant to make proper inquiries, or take reasonable action, to ascertain whether he could have taken judicial review action beyond the Tribunal and as to any applicable time limits. The Applicant is silent in what, if any, steps he took.  Indeed, he makes no reference to anything done by him.  He does refer, in his submissions, to a request for Ministerial intervention, but that does not provide an acceptable explanation for a delay in filing an application for review with the Court.[1] 

   [1] Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, 9.

3. It is well established that a court should not exercise its discretion to extend time if the proposed substantive application has no prospect of success.[2]  The Court determines that the application that is before it has no such prospect of success.  The grounds pleaded by the Applicant go, in their majority, (grounds 2, 3 and 4) to the Tribunal having denied the Applicant procedural fairness. The Applicant fails to particularise that denial of procedural fairness in any meaningful way, and there was, in the circumstances of this case, no denial of procedural fairness by the Tribunal to the Applicant. 

   [2] SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, 39.

4. The grounds of the substantive application are as follows:-

   “(1)   The Department failed to consider the applicant’s individual circumstances.

   (2)     There is a breach of natural justice occurred in connection with the making of the decision.

   (3)     That the applicant was denied procedural fairness in connection with the making of the decision.

   (4)     That procedures that were required by law to be observed in connection with the making of the decision were not observed.

   (5)     That the making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.

   (6)     The Tribunal has made a jurisdictional error by not allowing the Regional Certifying Board Approval to be included.  The MRT member stated that he could not retrospectively apply the new RCB approval to the appeal application.” 

5. The Tribunal invited the Applicant to appear before it at a hearing, under s.360 of the Act, and put adverse information, namely, that the Applicant could not meet cl.857.221 of Schedule 2 to the Regulations, to the Applicant pursuant to s.359AA of the Act. The Tribunal at the conclusion of the hearing indicated to the Applicant it would defer its decision so the Applicant could provide any further submissions or obtain a new nomination concerning his position with the sponsor. The Tribunal’s decision to allow the Respondent time to provide a response and the length of time provided by the Tribunal was reasonable in the circumstances of the case.

6. The Decision Record discloses an evident and intelligible justification for the Tribunal shortening the time for the Applicant to provide a response to information put orally at the hearing under s.359AA, namely: -

   a)the Applicant had been on notice that his ability to meet cl.857.221 of Schedule 2 to the Regulations was an issue since the delegate’s decision on 15 February 2013;

   b)the Applicant was represented by a migration agent;

   c)the Tribunal agreed to defer the review following the Applicant’s representative’s request; and

   d)the Tribunal had determined that the Applicant was unable to obtain a further nomination under the current scheme that would satisfy cl.857.221 of Schedule 2 to the Regulations.

7. The letter to the Applicant’s representative of 30 January 2015, as noted in paragraph 14 of the Decision Record, which shortened the time for response was sent to the Applicant’s representative by email, and therefore, the Applicant was taken to have received the document at the end of the day on which the email was transmitted, pursuant to s.379C(5) of the Act. The Tribunal requested further submissions by 12 February 2015, which afforded the Applicant a reasonable time to respond, particularly given that the Applicant simply could not satisfy the requirements of clause 857.221.

8. There is no jurisdictional error in respect of the Tribunal’s decision, and the Applicant’s individual circumstances, however he may portray them in his submissions, were not relevant to the Tribunal’s consideration of the Applicant’s application.  Nevertheless, they were considered by the Tribunal.

9. There is nothing which indicates the Tribunal failed to consider the material before it or that it failed to make a decision based on the evidence before it. The findings made by the Tribunal were clearly open to it. The Tribunal did not improperly exercise its power under Part 5 of the Act and nor was it misinformed in any way.

10. The substantive application having no merit and there being no reasonable or adequate explanation for the extensive delay in the filing of the application, the Court shall dismiss the application for an extension of time to file the application for judicial review under s.477(2) of the Act, and costs shall follow the event.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 14 December 2017