Northland Commercial Service Pty Ltd v Minister for Immigration

[2020] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTHLAND COMMERCIAL SERVICE PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 789

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Business Nomination visa – whether company was in a position to present evidence at relevant time – no jurisdictional error made out – application dismissed.

PRACTICE AND PROCEDURE – whether the director should have leave to appear on behalf of the corporate entity pursuant to r.9.04 of the Federal Circuit Court Rules 2001 (Cth) – whether the application has reasonable prospects of success – leave not granted – no reasonable prospects of success – proceedings found to be abuse of process under r.13.10(c) of the Rules.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth) reg. 2.72

Federal Circuit Court Rules 2001 (Cth) rr. 9.04, 13.10

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: NORTHLAND COMMERCIAL SERVICE PTY LTD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 303 of 2017

Judgment of: Judge Street

Hearing date: 6 April 2020

Date of Last Submission: 6 April 2020

Delivered at: Sydney

Delivered on: 6 April 2020

REPRESENTATION

The Applicant appeared in person via audio link.

Solicitors for the Respondents: Ms B Rayment via audio link
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing will proceed via audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

3. The question of whether the director should be granted leave to appear for the company under r 9.04 of the Federal Circuit Court Rules 2001 (Cth) will be determined by the Court after hearing from the parties as to the merits of the substantive application.

4. The oral application for an adjournment is refused.

5. The application for leave to appear for the company under r 9.04 of the Federal Circuit Court Rules 2001 (Cth) is refused.

6. The application is dismissed pursuant to r 13.10(c) of the Federal Circuit Court Rules 2001 (Cth).

7. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 6 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 303 of 2017

NORTHLAND COMMERCIAL SERVICE PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 May 2017 affirming a decision of the Delegate not to approve the nomination. 

2. The application for approval of the nomination was made on 12 August 2015.

3. The Delegate made a decision on 18 February 2016 refusing to approve the nomination.

4. The corporate applicant applied for a review on 4 March 2016.

5. By letter dated 23 February 2017, the applicant was invited to attend a hearing on 24 April 2017. The applicant appeared on that date by one of the applicant’s directors to give evidence and present arguments.

6. The Tribunal’s reasons identify the background to the application for review and expressly refer to explaining to the director, Mr Abdullah, the requirements in relation to the visa regulations and, in particular, the IMMI 17/040 requirements that the business have an annual turnover of at least AUD 1 million and that a business of less than AUD1 million annual turnover is excluded. It is apparent that this was explained to the applicant at the hearing and that the director told the Tribunal that the turnover of the applicant company is growing, but it was not near one million. 

7. The Tribunal identified the mandatory requirements in respect of the grant of a visa and found that the nomination failed to comply with Note 10 of IMMI 17/040.

8. The Tribunal accordingly found that the nominated occupation and its corresponding six-digit code does not correspond to an occupation and it corresponding six-digit code specified by the Minister in an instrument in writing because Note 10 to IMMI 17/040 has the effect of excluding customer service manager positions in businesses with less than AUD 1 million annual turnover. 

9. It was in these circumstances the Tribunal found that the nomination did not meet the requirements prescribed in reg 2.72(10)(aa) of the Migration Regulations 1994 (Cth) (“the Regulations”) and, in particular, did not meet reg 2.72(10) of the Regulations generally.

10. Accordingly, the Tribunal affirmed the decision under review

Before the Court

1. These proceedings were commenced on 9 June 2017. 

2. It is apparent that the issue of the corporate entity being unrepresented was raised at the first directions hearing. 

3. On 4 November 2019, this Court made orders fixing the matter for hearing today. The matter has proceeded by way of an audio telephone hearing pursuant to pt 6 div 5 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

4. At the commencement of the hearing, the issue was identified whether the director should have leave to appear on behalf of the corporate entity. 

5. The Court explained to the applicant that the Court would consider whether the applicant should be granted leave to appear in relation to r 9.04 of the Rules by considering the merits of the substantive application.

6. The Court in that regard has had admitted into evidence the court book and the affidavits filed by the applicant subject to relevance. 

7. The applicant sought an adjournment of the proceedings on the basis that the applicant effectively, since 20 March, had been taking steps to try to obtain legal representation. These proceedings were commenced on 9 June 2017. The Court raised with the applicant why he had not had ample time to obtain representation. Nothing said by the applicant provided a satisfactory explanation for his failure to have obtained legal representation if he was able to do so. The belated last-minute efforts on 20 March are not a proper basis upon which an adjournment should be granted in the circumstance of the present case.

8. The Court has also taken into account the complete want of merit in the substantive application, which has no prospect of success, in refusing the application for an adjournment. 

9. The only ground in the application made reference to the proposition that the company was not in a position to present evidence. Contrary to that assertion, it is crystal clear that the Tribunal raised with the applicant the mandatory requirements through the director and that the director confirmed that the company did not meet that mandatory criteria. 

10. No arguable case of relevant error is disclosed by the ground in the application. 

11. The Court explained to the applicant that the Court could only grant relief if satisfied that there was a relevant error by the Tribunal and explained to the applicant the nature of the relevant error.

12. The applicant from the bar table, in substance, wished to continue to advance submissions as to why the proceeding should be adjourned.  Nothing said by the applicant identified any arguable case of relevant error by the Tribunal in the conduct of the review and for the reasons already given, no arguable case of relevant error is made out in relation to the application. 

13. In these circumstances, there is a lack of merit to warrant the Court granting leave to the applicant to appear under r 9.04 of the Rules and the proceedings are ones that are doomed to failure. In the absence of having legal representation, this is an abuse of process. Further, the Court is satisfied, taking into account the principles in Spencer v Commonwealth of Australia (2010) 241 CLR 118 that the proceedings have no reasonable prospect of success and are, for that reason also, an abuse of process within r 13.10(c) of the Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 6 April 2020 and the parties were sent sealed copies of the Court’s orders.

Associate: 

Date: 22 April 2020