Panayiotou v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 370
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panayiotou v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 370
File number: ADG 123 of 2021 Judgment of: HER HONOUR JUDGE C.E KIRTON KC Date of judgment: 11 May 2023 Catchwords: MIGRATION – Extension of time application made pursuant to s 477 of the Migration Act- applicant filed 358 days out of time - insufficient explanation as to delay - whether there is any merit to the grounds of review – unparticularised grounds - lack of merit in substantive application – no real prospects of success – no jurisdiction to review Delegate’s decision under s 476 of the Migration Act - extension of time application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 338(4), 362B(1A), 476 and 477
Migration Regulations 1994 (Cth) sch 2 cls 050.223, 408.213 and 408.229A(4)
Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675
SZNXA v Minister for Immigration and Citizenship[2010] FCA 775
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
WZAVW v Minister for Immigration & Anor [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission: 4 April 2022 Date of hearing: 29 March 2022 Place: Melbourne (by videoconference) The Applicant: Appeared in person (by audio only) Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent submitted an appearance save as to costs ORDERS
ADG 123 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PANOS PANAYIOTOU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E KIRTON KC
DATE OF ORDER:
11 may 2023
THE COURT ORDERS THAT:
1.The Application filed 7 May 2021 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC
INTRODUCTION
By an application filed in this Court on 7 May 2021 (Substantive Application), the Applicant seeks judicial review of the Second Respondent’s (Tribunal) decision, dated 9 April 2020 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister), dated 13 November 2019, to refuse the Applicant a Temporary Activity (Subclass 408) visa (408 Visa).
Implicit in the Substantive Application is an application for an extension of time (Extension of Time Application) pursuant to s 477(2) of the Migration Act 1958 (Cth) (Migration Act). The Substantive Application was filed 358 days outside of the 35 day time limit prescribed in s 477(1) of the Migration Act.
The Substantive Application, when read together with the Applicant’s affidavit sworn or affirmed and filed on 7 May 2021 (Applicant’s Affidavit), also purportedly seeks judicial review of a decision of the Delegate dated 23 April 2021 refusing to grant the Applicant’s application for a Bridging E (Class WE) visa (Bridging Visa Decision).
This matter was heard on 29 March 2022 and proceeded by way of videoconference on Microsoft Teams (Extension of Time Hearing). The Applicant appeared and was unrepresented before the Court.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 2 February 2021 numbering 468 paginated pages (Court Book). The Court notes that the Minister's written submissions, filed on 15 March 2022 (Minister's Submissions), at [3] to [14], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of the United States of America, who arrived in Australia in 2015 as the holder of a Work and Holiday Visa.[1]
[1] Court Book (CB) 68.
The Applicant was subsequently granted a Student (Temporary) (class TU) Student (subclass 500) visa on 26 October 2016, which expired on 26 October 2019.[2]
[2] CB 323-324.
On 23 October 2019 the Applicant applied for the 408 Visa on the basis of his employment conducting “Promotional Activities” for Andrash Wholesale Fuel Pty Ltd (Employer).[3]
[3] CB 55.
On 13 November 2019 the Delegate refused to grant the Applicant the 408 Visa (408 Visa Decision). The Delegate confirmed that while the Applicant had made a valid application for a 408 Visa, a 408 Visa could not be granted unless the relevant criteria set out in the Migration Act and the Migration Regulations 1994 (Cth) (Migration Regulations) were satisfied.[4] The Delegate found that cl 408.213 in sch 2 of the Migration Regulations was not satisfied in this case.[5]
[4] CB 63.
[5] CB 62-64.
The Delegate stated that, “the applicant has failed to provide satisfactory evidence to demonstrate that he intends to work as an entertainer in the entertainment industry”.[6] The Delegate likewise noted that the Applicant provided no evidence as to how his stay in Australia would be funded.[7] The Delegate could not be satisfied that the “Applicant’s intentions in Australia are consistent with the intent of the entertainment visa program” as set out in the Migration Regulations. [8]
[6] CB 63.
[7] CB 64.
[8] CB 64.
On 4 December 2019 the Applicant applied to the Tribunal for review of the 408 Visa Decision (Review Application).[9] The Applicant did not appoint a representative, and provided his own postal address, email address and telephone number for the purpose of receiving correspondence from the Tribunal.[10]
[9] CB 66. The review application was accepted as valid on 5 December 2019. Another application for review had been incorrectly lodged by the Employer and was invalid, see CB 81-82, 118, 123 and 131-136.
[10] CB 67
On 24 January 2020 the Applicant was invited to attend a hearing on 19 February 2020 (19 February 2020 Hearing).[11] The invitation directed the Applicant to provide further information in relation to the requirements of cl 408.22922A(4) of Sch 2 of the Migration Regulations, and requested that the Employer provide oral evidence at the 19 February 2020 Hearing. The Applicant sought to postpone the hearing on the basis of bias and personal safety however, after considering the request, postponement was denied by the Tribunal in a letter dated 31 January 2020.[12] The Applicant submitted another request for postponement on 10 February 2020 which was refused on 12 February 2020.[13]
[11] CB 127.
[12] CB 184.
[13] CB 308.
In response to the Tribunal’s invitation to provide written evidence in a letter dated 3 December 2019, [14] the Employer provided information on 17 February 2020 which included a signed employment contract, a payslip and a statement addressing the criteria in cl 408.229A(4) of the Migration Regulations.[15]
[14] CB 118.
[15] CB 309-333.
Neither the Applicant nor the Employer attended the 19 February 2020 Hearing.[16]
[16] CB 343.
Consequently, on 24 February 2019 the Tribunal dismissed the Review Application under the s 362B(1A) of the Migration Act. The Review Application was reinstated on 20 March 2020 after the Tribunal considered representations from the Applicant.[17]
[17] CB 392.
The Applicant was invited to attend a hearing on 9 April 2020 (9 April 2020 Hearing).[18] The 9 April 2020 Hearing was conducted where the Applicant attended by audioconference and the Employer did not attend. The Court notes that the Applicant failed to actively engage with questions regarding his Review Application as he denied that the hearing was for the purposes of reviewing the 408 Visa Decision.
[18] CB 396.
On 9 April 2020 the Tribunal affirmed the 408 Visa Decision.[19]
[19] CB 441.
The Substantive Application was filed in this Court on 7 May 2021.[20]
[20] CB 1.
On 21 April 2021 the Applicant, who was by then in immigration detention, applied for a Bridging E (Class WE) visa (Bridging Visa).[21]
[21] CB 31.
On 23 April 2021 the Applicant was denied a Bridging Visa on the basis that he did not satisfy cl 050.223 of the Migration Regulations.[22]
[22] CB 30-33.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 441 to 452 of the Court Book.
The Tribunal identified the issue for resolution as “whether Mr Panayiotou has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted, and whether he meets the stream specific requirements.”[23]
[23] CB 448 [20].
The Tribunal’s Decision is accurately summarised in the Minister’s Submissions, at [15] to [23], which the Court adopts, with amendments, as its own:[24]
[24] First Respondent’s Written Submissions, filed 15 March 2022 (Minister’s Submissions), [15]-[23].
15 […] The Tribunal declined to adjourn the review on the bases that: it was entitled to hold a hearing into a matter before it; the information on which [the Applicant] relied was not relevant to the matter before the Tribunal, and it was not apparent how postponing the hearing would assist the Applicant to present his case.
16 The Tribunal noted that at the 9 April 2020 hearing, the Applicant declined to answer questions put to him by the Tribunal in relation to the criteria for the grant of the visa, even when advised that the Tribunal could draw an adverse inference that the information would not assist his case, or would proceed to make a decision on the information available to it.
17 The Tribunal noted that the Applicant mentioned during the course of the hearing that he wanted to engage a legal team, but declined to adjourn the review on the basis that the Applicant had been on notice of the Delegate’s decision since 13 November 2019, of the Tribunal hearing since 24 January 2020, and had not sought legal advice in this time.
18 The Tribunal noted that two essential criteria for the grant of the visa were:
18.1 whether the Applicant had a genuine intention to stay temporarily in Australia for the purpose for which the [408 Visa] was granted, having regard to the Applicant’s past visa compliance, his intention to comply with the conditions to which the [408 Visa] would be subject, and all other relevant matters: cl 408.213 [Migration Regulations]; and
18.2 whether the Applicant met the ‘stream-specific’ requirements of cl 408.229A(4) [of the Migration Regulations].
The ‘genuine temporary entrant’ criterion
19. The Tribunal noted that the Applicant’s visa would be subject to Conditions 8107 and 8109 of Schedule 8 to the [Migration] Regulations, which required that: he does not cease to undertake an activity for which the visa was granted (8107) and must not change details of times or places of engagements specified in the application without the prior permission of the Secretary (8109). The Tribunal was not satisfied that the Applicant would comply with those conditions because:
19.1. information the Applicant provided was that his performances and itinerary would change on a weekly basis, which did not meet the requirements in cl 408.229A(4) and does not show he would comply with Condition 8109; and
19.2. the Applicant was reluctant to provide basic information about the work undertaken, and in the absence of oral evidence of a representative of the Employer, the Tribunal found it difficult to see how his apparent employment as a marketing and promotion assistant for the Employer – who was a fuel wholesale business – was the purpose of the type of visa for which the Applicant had applied.
20. The Tribunal also observed that as the Applicant declined to answer questions about his intention to stay in Australia temporarily, the Tribunal did not have the benefit of any other information in this regard, such as whether the Employer was an eligible sponsor or how his activity would bring a net employment gain to the Australian entertainment industry as required for the grant of the visa in the stream sought.
21. For the above reasons, the Tribunal was not satisfied the Applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted and that the requirements of cl 408.213 were not met.
The stream specific criteria
22. While noting that the findings on cl 408.213 were sufficient to determine the matter, the Tribunal also considered the ‘stream-specific’ requirements of cl 408.229A(4). The Tribunal was not satisfied those requirements were met because:
22.1. the Applicant’s employment contract did not specify one or more specific engagements in Australia: cf cl 408.229(4)(a)
22.2. there was no information to show any activity would result in a net employment benefit to the Australian entertainment industry: cf cl 408.229(4)(b)
22.3. there was no information before the Tribunal to show that the employer was an eligible sponsor: cf cl 408.229(4)(c)
22.4. there was no information to show the employer had consulted with the relevant Australian unions beyond reportedly advising the Applicant of his entitlements and how to secure union representation: cf cl 408.229(4)(e); and
22.5. an itinerary specifying dates and venues for performances had not been provided: cf cl 408.229(4)(f).33
23. As there was nothing before the Tribunal to show the Applicant otherwise met a clause in Subdivision 408.22, it found that cl 408.219A was not met.
(Footnotes omitted)
The Tribunal was not satisfied that the Applicant met the essential requirements in the Migration Regulations to be granted a 408 Visa due to the lack of specific evidence before it and the general disinclination of the Applicant to expand on relevant matters. Accordingly the Tribunal affirmed the 408 Visa Decision.
PROCEDURAL HISTORY
It was not until 7 May 2021 that the Applicant filed the Substantive Application (which implicitly contains the Extension of Time Application) and Applicant’s Affidavit.
On 10 June 2021 the Applicant filed an application in a case (Application in a Case) and unsworn affidavit in this Court seeking immediate release from detention on the grounds of procedural fairness and jurisdictional error.
On 25 June 2021 the Court made orders listing the Application in a Case for hearing on 12 August 2021, the final hearing to be fixed, and required the Applicant to file and serve any amended application by 30 September 2021.
The Applicant was granted a Bridging visa E on 16 July 2021 and subsequently released from immigration detention. On 21 July 2021 the Court accordingly made orders vacating the hearing of the Application in a Case.
Pursuant to Orders made by consent on 4 October 2021, the Court made orders extending the time to 11 November 2021 for the Applicant to file and serve any amended application which clearly identified: the migration decision for which review was sought; the grounds on which review of the migration decision was sought; and which sought an extension of time, which is necessary pursuant to s.477(1) of the Migration Act.
The Court notes that no amended application has been filed by the Applicant and therefore the only application before the Court is the Substantive Application.
The materials the Court has considered in preparing these Reasons for Judgment include the Substantive Application, the Applicant’s Affidavit, the Court Book, the Minister’s Submissions, and the list of authorities filed by the Minister on 4 April 2022.
The Court has also considered the transcript of the Extension of Time Hearing, where both the Applicant and the Minister made oral submissions.
The Applicant’s grounds of review in the Substantive Application are as follows:[25]
1.Due to lack of consideration of all circumstances/evidence provided o[n] this complex situation.
(Without alteration)
[25] Application-Migration filed on 7 May 2021(Substantive Application), 3.
In the Substantive Application the final orders sought were:[26]
[x] A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the application according to law.
[…]
1.Seeking an order to be allowed to study any Masters of Education at Flinders University in Semester 2, 2021.
(Without Alteration)
[26] Substantive Application, 3.
The Applicant’s Affidavit expands on the Substantive Application in that it raises two specific issues that require review by this Court: Firstly, the 408 Visa Decision and, secondly, the Bridging Visa Decision. [27]
[27] Affidavit sworn or affirmed and filed by Applicant on 7 May 2021 (Applicant’s Affidavit), [3].
The Applicant’s Affidavit expands on the grounds for review, as follows: [28]
2. I am applying to this Court to review my immigration matters, as a jurisdictional error has occurred with my most recent Bridging Visa E application. A refusal to grant a Bridging Visa E was made by the Department on 23rd April, 202021.
[…]
7. Following this I made an application for an Entertainment Visa 408 as I was undertaking short term work for entertainment purposes. This application was declined by the Department of Home Affairs. I subsequently challenged this with the Administrative Appeals Tribunal. There were several procedural faults with this process including no fair opportunity given to me to provide all evidences or allowing substantiating evidence to be submitted.
(Emphasis added)
[28] CB 9 [2] and [7].
LEGISLATIVE PROVISIONS
Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the ‘migration decision’. As submitted by the Minister, the time period for the Applicant to have filed an application for judicial review of the Tribunal Decision ended on 14 May 2020.[29]
[29] Minister’s Submissions, 7 [33].
The Applicant has not satisfied the requirements of s 477(1) of the Migration Act, as the Substantive Application was filed on 7 May 2021 outside of the prescribed 35 day time limit. Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if the conditions in section 477(2) are met. In order for the Court to review the Tribunal’s Decision, the Applicant requires an extension of time of nearly a year (358 days).[30]
[30] Minister’s Submissions, 7 [33].
Section 477(2) of the Migration Act (as in force at the date the Substantive Application was made) provides in relation to extensions of time:
(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 of Australia is satisfied that it is necessary in the interests of the administration of justice to make the order.
[…]
The Court notes that s 477 of the Migration Act is identical to the provision currently in force.
The Minister has conceded that the Substantive Application includes an application for extension of time which is in writing, and therefore the requirement contained in s 477(2)(a) is satisfied.[31]
[31] Minister’s Submissions, 1 [1.1].
In relation to the requirement in s 477(2) the Minister submitted that along with ‘the interests of the administration of justice’ the Court will ordinarily take into account the following factors:
(a)Whether there has been a reasonable and adequate explanation for the delay;
(b)Any prejudice to the Minister, and
(c)Whether the Applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.[32]
[32] Minister’s Submissions, 7 [34].
As identified by the Minister, in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 Foster J expanded on the Court’s ability to grant an extension of time, at [46] to [47], as follows:
46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay
(b)Whether there is any prejudice to the Minister;
(c)Whether the Applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
48. The factors which I have referred to at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provisions (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
The Court will consider the above matters in turn. Importantly, the Court will consider whether the Applicant’s Substantive Application is “sufficiently arguable” for an extension of time to be granted.
CONSIDERATION
Extent and Reasons for Delay
The Substantive Application was filed 358 days or nearly a year out of time. Therefore the extent of the Applicant’s delay is significant.
The Applicant has not adequately explained the delay in seeking judicial review. In the Applicant’s Affidavit, the Applicant stated that his “mental health had been severely impacted with the amount of conflicting information” and he has “suffered severe mental harm” since being detained on 20 April 2020.[33] The Applicant justified that he had not been able to resolve his visa status because of the “confusion, gaps and lack of coherent communication from the Department”.[34]
[33] Applicant’s Affidavit, [10] and [15].
[34] Applicant’s Affidavit, [15].
At the Extension of Time Hearing the Applicant was given the opportunity to provide further reasons for the delay. The Applicant claimed there was a “communication block” and “communication prejudices” which prevented him from providing further evidence regarding his case but did not expand on any particular reasons for the delay in submitting the Substantive Application.[35]
[35] Transcript P6-P8.
The Minister submitted at [35] of the Minister’s Submissions that:
35. […] Contrary to the applicant’s contention, he was plainly informed of his right to apply for judicial review when notified of the 408 decision. He has not provided evidence of any attempts between 9 April 2020 and 7 May 2021 to contact the court about an application for judicial review of the 408 decision. The Minister submits that the inadequate explanation for the delay weighs against the grant of an extension of time in this matter.
(Footnotes omitted)
The Court accepts the Minister’s submissions. The Applicant has not provided a reasonable or adequate explanation for the delay in his application for judicial review. There was no meaningful engagement by the Applicant with the Court regarding the options available to him, such as fee waiver schemes.
Overall, the Court considers that the delay in this case was significant and there has been insufficient explanation or evidence supporting the explanation for the delay.
Prejudice to the Minister
Neither party addressed whether there would be prejudice to the Minister.
The Court recognises that there would be little prejudice to the Minister, save for the costs of having to defend an unmeritorious application. The Court considers that this weighs in favour of the grant of an extension of time, however the lack of prejudice to the respondent does not itself justify the grant of an extension of time.
Merits of the Substantive Application
The Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]., observed, at [68], that:
68 […] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]
(Emphasis added)
The grounds set out in the Substantive Application are replicated at [34] and [37] of these Reasons for Judgment. No further material has been filed by the Applicant, despite the Court’s provision of the opportunity to do so. The grounds in the Substantive Application therefore remain unparticularised. I will now give an ‘impressionistic consideration’ to the merits of the ground of review, noting that the question before the Court is whether any of the grounds are ‘arguable, ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.
The Minister advanced submissions that “the Court should not exercise its discretion to extend time even for a short period, if the proposed substantive application has no reasonable prospects of success”.[36]The Minister relied upon the authorities of SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 and EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675, where the Court affirmed and re-affirmed that the important considerations in extension of time applications are whether or not the applicant has any real prospects of success, and whether or not the grounds of review properly identify and specify jurisdictional error.
[36] Minister’s Submissions, 8, [36].
The Minister submitted that the grounds put forward in the Substantive Application are “allegations of error which, without proper particulars, are meaningless and cannot succeed” and therefore“[t]he grounds may be dismissed on this basis alone”.[37]
[37] Minister’s Submissions, 8, [38].
I accept the Minister’s submission regarding the nature of the Applicant’s grounds of review. The Applicant has given no particularised grounds for jurisdictional error and has not pointed to specific errors in which I can properly assess to determine whether the Tribunal erred in its decision making.
As explained in the reasoning of SZNXA v Minister for Immigration and Citizenship [2010] FCA at [21]:
21. Turning to the first ground, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors. The appellant’s first ground of appeal must therefore be rejected.
Similarly, the Court in WZAVW v Minister for Immigration & Anor [2016] FCA 760 at 35 also found that that “an unparticularised assertion of jurisdictional error” which is “vague and meaningless” is a sufficient basis to dismiss a ground of review.
In relation to the “procedural faults” and “fair opportunity”, the Applicant submitted at the Extension of Time Hearing that “the tribunal – they didn’t have an opportunity to consider relevant evidence of the communication block.”[38]
[38] Transcript P18: L27-28.
The Applicant was given an opportunity to further explain and elaborate on this ground in the Extension of Time Hearing as extracted below:
Okay. Now I’m going to be addressing the reasons why I think the 408 decision was wrong, noting that there was not an opportunity for me to discuss briefly matters of prejudice related to this matter. The comment from AGS about the reasons the visa was refused don’t match with the submissions they were intended to receive, including opportunity to speak with myself or the sponsor. The communication prejudices that were occurring then and now were the reasons why the sponsor or myself wasn’t able to put forward evidence of entertainment work and evidences of complying with the requirement about location and reporting.
Given the opportunity to submit relevant evidences about the entertainment work, contracts with relevant entertainment areas, and time and reporting obligations, I believe the tribunal would have made a different decision. Based on their decision-making rationale, it’s clear that they didn’t have access to the relevant material, which includes entertainment – evidence of entertainment work being conducted, compliant, and compliance with reporting procedures. Now, the one point that they may rely on, which is the applicant has genuine intent to leave the country, that’s a very speculative decision made from a previous point. My current position does not reflect my position at that time, so I don’t believe that the speculation that could be about applicant intends to stay or not is going to hold weight in comparison to contracts, evidence of entertainment work and compliance with the required reporting procedures.[39]
[39] Transcript P22: L13-33.
The Applicant and Employer were invited to provide further information in writing and participate in a hearing before the Tribunal. All written evidence and oral evidence before the Tribunal was considered in its decision making process.
The Tribunal considered whether the Applicant complied with the conditions of his last substantive visa and found that there was nothing to suggest the he had not. The Tribunal gave weight to the lack of evidence from the Employer and the Applicant regarding basic information about the work undertaken. The Tribunal gave significant weight to the failure of the Applicant, and the Employer, to provide any further details and information about the Applicant’s employment. The Tribunal considered other relevant matters and could not conclude that the Applicant genuinely intended to stay temporarily in Australia undertaking the employment activity in question. Consequently, the Tribunal was not satisfied that the Applicant satisfied the criteria for the 408 Visa.
Jurisdictional error cannot be found merely on the basis that the Tribunal considered the Applicant’s claims and the evidence and rejected them because of the lack of credibility and evidentiary support.
As discussed above, the grounds of review provided were unparticularised and no jurisdictional error can be found. Therefore, there are no reasonable prospects of success for the Applicant. The Court accepts the Minister submission that it is not in the interests of the administration of justice to extend time.
Bridging Visa Decision
I accept the Minister’s submissions that the Bridging Visa Decision is not reviewable by this Court.
The Bridging Visa Decision was a ‘Part 5 reviewable decision’ under s 338(4) of the Migration Act as it was “a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal.”
Section 476(2)(a) of the Migration Act provides that this Court has no jurisdiction in relation to a “primary decision.” Under s 476(4)(a) of the Migration Act the Bridging Visa Decision is a primary decision as it is a decision that is reviewable under Part 5 of the Migration Act.
CONCLUSION
Due to the Applicant’s: failure to particularise the grounds of review; failure to provide an explanation for the delay in filing the Substantive Application; and the absence of any real prospect of success in the Substantive Application; the Court is not satisfied that it is in the interests of the administration of justice to extend the time limit for filing the Substantive Application pursuant to s 477(2) of the Migration Act.
The Extension of Time Application is therefore dismissed.
The Court has no jurisdiction to review the Bridging Visa Decision under s 476 of the Migration Act.
The Court will Order that the Applicant pay the Minister’s costs calculated in accordance with Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) fixed in the sum of $7,853.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C.E Kirton KC. Associate:
Dated: 11 May 2023
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