Pham v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 971
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pham v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 971
File number: MLG 2591 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 1 November 2023 Catchwords: MIGRATION– whether to grant an extension of time – whether there was a satisfactory explanation for delay – whether the Delegate’s refusal to defer a decision to provide more time to the Applicant was legally unreasonable – whether a declaration should be made that the visa application was invalid – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 46, 47, 48, 57, 65, 338, 477
Migration Regulations 1994 (Cth) regs. 2.07, 1240; cl. 482.212
Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v Mon Tat Chan (2008) 172 FCR 193; [2008] FCAFC 155
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24
Singh v Minister for Immigration (2016) 253 FCR 267; [2016] FCAFC 141
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28
Yao v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 733
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 9 October 2023 Date of hearing: 9 October 2023 Place: Melbourne Counsel for the Applicant: Mr Lake Solicitor for the Applicant: Luat Lawyers Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2591 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANH DAN PHAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant is granted leave to rely upon the Amended Application and submissions, both filed on 28 August 2023.
2.The application for an extension of time is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
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
JUDGE CHAMPION:
INTRODUCTION
By an application made on 23 November 2022, amended on 28 August 2023 (Amended Application), Mr Manh Dan Pham (Applicant) seeks judicial review of a decision of a delegate of the Minister (Delegate) made on 17 May 2022 to refuse his application for a Temporary Skill Shortage (Subclass 482) Visa (TSS Visa).[1]
[1] References to the Court Book in this matter are marked “CB”. References to the Applicant’s and First Respondent’s submissions are respectively marked “AS” and “RS”.
The Applicant requires an extension of time under s. 477(2) of the Migration Act 1958 (Cth) to bring his application because it was commenced some 5 months out of time.
As to a procedural matter, during the hearing, I indicated that I would make an order granting the Applicant leave to rely upon his late-filed Amended Application and written submissions filed 28 August 2023 — which were due to be filed on 25 August 2023 — because there was no relevant prejudice to the First Respondent.
SUMMARY
The application will be dismissed. My reasons are set out below.
BACKGROUND
The Regulations create a prerequisite for the grant on a TSS Visa of approval of the sponsor’s nomination
A TSS Visa applicant must satisfy the following criterion in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) for the grant of a visa:
482.212
(1) Each of the following applies:
(a)the nomination identified in the application has been approved under section 140GB of the Act;
….
[Emphasis added]
That is, pursuant to cl. 482.212(1)(a) a mandatory prerequisite for the grant of a TSS Visa is that the Minister must have approved the work sponsor’s nomination to which the TSS Visa application is linked. I add that a TSS Visa application is linked to a specific employer nomination.
Chronology of events
On 26 March 2021 the Applicant applied for the TSS Visa relying on a pending sponsor’s nomination of Mr Khanh Dinh Dan (the sponsor). The Applicant’s occupation was Electronic Equipment Trades Worker (CB1–15). The sponsor’s nomination in the Applicant’s TSS Visa application is identified by reference to the unique Transaction Reference Number (TRN) EGOQXPS0O4 (CB 1).
On 7 April 2022 (approximately 13 months after the TSS Visa application) departmental records set out that the sponsor’s nomination linked to that unique TRN, EGOQXPS0O4, was refused (CB 50–51). As a result of the refusal of the sponsor’s nomination, the Applicant (as the TSS Visa applicant) could not satisfy the prerequisite for the grant of the TSS Visa prescribed by cl. 482.212(1)(a) and the Delegate had to refuse the TSS Visa. As is explained below, although the same sponsor had filed a new nomination, the Regulations operated so that it was not possible for Mr Pham to link his existing TSS Visa application to a new sponsor’s nomination.
On 11 April 2022, pursuant to s. 57 of the Act which required the Minister (or the relevant delegate) to give particulars of relevant information that would be a reason for refusing to grant a visa to the Applicant, the Delegate invited the Applicant to comment on the fact that the nomination had not been approved (CB21–23). In part, the Delegate’s letter read (CB 21):
One of the requirements for the grant of a Temporary Skill Shortage (Medium Term) (subclass 482) is an approved nomination. Your prospective employer, KHANH DINH DAN, does not have an approved nomination for you at this time. As a result, your visa application cannot be approved. Your visa application cannot be linked to a new nomination application.
[Emphasis added]
On 9 May 2022, the Applicant submitted a “notification of change in circumstances” (CB 24) that stated that:[2]
Information which is no longer current: Nomination Details
Details of the related nomination
Nomination Application TRN: EGOQXPS0O4 is no longer applicable, as this nomination application has been refused due to absence of evidence of LMT
[2] “LMT” in the extracts that follow is a reference to Labour Market Testing.
Give current information: Nomination Details
Details of the related nomination
Nomination Application TRN: EGOR4NBZ3C, the applicant has recently applied for a new nomination, providing the evidence of LMT.
[As written in original]
On the same day, 9 May 2022, the Applicant’s representative also provided the following submission (CB 27–28):
I refer to the Department’s s. 57 correspondence of 11 April 2022 in relation to the above application by Mr. Manh Dan PHAM. Regrettably the employer’s nomination application was refused by reason of the absence of satisfying evidence of LMT.
The employer applicant has since applied for a new nomination (TRN: EGOR4NBZ3C) for Mr. PHAM in which nomination is now included with satisfactory evidence of LMT.
Mr Pham is therefore seeking the Department’s indulgence in granting him a period of 2 month’s time to wait for the assessment of the employer’s new nomination application.
In the event that the employer’s new nomination application is refused even with the accompanying evidence of satisfactory LMT, Mr Pham would then withdraw his Visa application.
I submit the granting of an extension of time would preserve Mr Pham’s interest, in that the withdrawal of his Visa application would prevent a refusal and thus would prevent a s. 48 bar against him.
The applicant submitted that by its correspondence dated 9 May 2022 it had raised the issue of “linking” his existing TSS Visa application to a new nomination of his sponsor.
On 13 May 2022 there was a telephone discussion between the Applicant’s representative and the Delegate. In a subsequent letter dated 23 June 2022 the Applicant said that the result of the telephone discussion was that the Delegate “was going to have a discussion with his manager on Monday, 16 May 2022” (CB57).
On 13 May 2022, apparently after the telephone discussion, the Delegate responded to the Applicant’s representative’s submission dated 9 May 2022 by email and informed her that he had determined there were “insufficient grounds” on which to provide further time to comment or withdraw his application and that a decision may be made any time after the close of business on 16 May 2022 (CB 29).
On 16 May 2022, the Applicant’s representative provided a further written submission to the Delegate that read (in part) (CB 30–31):
I refer to your email of 13 May 2022.
I maintain my submissions as per our telephone communication of 13 May 2022, which was prior to me receiving your email of 13 May 2022.
I maintain the applicant’s request for an extension of 2 months’ time in order to respond to the Department’s natural justice letter of 11 April 2022.
I submit that the purpose of the natural justice offered to the applicant is to enable him to withdraw his application in the event that the nomination application is not approved, so as a refund of the visa application charge is available to him.
I note that the applicant has expressed his intention to withdraw the visa application if this second nomination application is not approved.
[Emphasis added]
On 17 May 2022, without further response to the Applicant’s letter sent the previous day, the Delegate refused to grant the TSS Visa because the Applicant did not satisfy cl. 482.212(1)(a) of Schedule 2 to the Regulations. The Delegate wrote (among other matters) that (CB 37–39):
According to provision of the Procedural Instruction 4.2.7 on “Related nomination” for Temporary Skill Shortage (TSS) visa program, the visa application must identify the related nomination, which has been lodged with a decision not yet made by the Department. However, on 07/04/2022, Departmental record indicate that a decision has been made to refuse the visa applicant’s associated nomination application with application ID 285643908. Therefore, I find that the applicant does not meet the requirement of the procedural instructions for TSS visa program. Furthermore, I note that the applicant has been informed that his visa application with application ID 1160643434 cannot be linked to a new nomination application.
Although there is no challenge to a subsequent decision of the Tribunal made on 27 October 2022, I note that on 6 June 2022, the Applicant applied to the Tribunal for review of the Delegate’s decision (CB 40–46).
On 27 October 2022, the Tribunal found it had no jurisdiction to review the Delegate’s decision (CB 81–83) on the basis that it was not a “Part 5 reviewable decision” as defined in s. 338 of the Act (CB 82, [6]–[7]). The Tribunal set out its reasons at (CB 82, [7]) as follows:
6.The representative argues that the delegate did not consider whether the nomination made on 9 May 2022 could meet the requirements of cl.1240(3)(f) of Schedule 1 to the Regulations, or to support a finding that the applicant met cl.482.212(1)(a) of Schedule 2 to the Regulations. In the Tribunal’s view, this assertion is incorrect. The delegate’s decision clearly states that the nomination application made on 9 May 2022 would not be able to be relied upon as an approved nomination to support this particular visa application.
7. It is worth emphasising that there was a considerable change in the introduction of the Subclass 482 visa program after the Subclass 457 visa program was closed. That change was to ensure that nominations and visa applications were specifically linked to one another; without the approved nomination married to the visa application being approved, the visa application would not be approved. In this case, the effect of s.338(2)(d) means that in circumstances where the sponsorship has already been finally determined, a visa applicant in this category will not have a Tribunal-reviewable decision.
[Emphasis added]
CONSIDERATION
In his Amended Application dated 28 August 2023 the Applicant set out 4 grounds of review. He read his affidavit made on 4 July 2023 in support of his application for an extension of time. At trial, the Applicant did not press Grounds 2 and 4. Remaining Grounds 1 – 3 challenge the Delegate’s Decision.
Only Ground 4 challenged the Tribunal Decision. As Ground 4 was not pressed, there is no remaining challenge to the Tribunal’s decision.
An extension of time
As noted, the judicial review application was made on 23 November 2022 as to the Delegate’s decision on 17 May 2022, some five months out of time. As a result, the Applicant requires an extension of time to pursue his application. The Court may by order extend the 35-day period for the commencement of a judicial review application if it is “satisfied that it is necessary in the interests of the administration of justice to make that order”: s. 477(2). In exercising its discretion as to whether to extend time, the Court may consider a myriad of factors including: the length of the delay; the reasons for the delay; any prejudice to the respondent(s) and the merits of the underlying application: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28 at [12]. In determining what is necessary in the interests of the administration of justice, it will often be appropriate to assess the merits of the proposed grounds of review at a reasonably impressionistic level, but there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment: Tu'uta Katoa, [18]; [19].
The length and explanation for the period of delay
The Applicant’s delay was 155 days. Typically, the longer the delay the more persuasive the explanation needed for an extension of time to be granted: Yao v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 733, [43].
In his affidavit made on 4 July 2023 the Applicant deposed at [10] that he:
[…] did not apply for review of the Minister’s delegate’s decision of 17 May 2022 until late as I was very hopeful that my prospective employers second nomination application for me would be approved and thus, Visa grant would be forthcoming … I would not need to apply for judicial review of the decision.
The Applicant adopted a “hopeful” position that a new sponsor’s nomination could be linked with his existing visa application even though this appeared to be contrary to the requirement of the Regulations that a nomination and a Visa application had to be specifically linked one to another. The Tribunal gave a succinct explanation as to why the Applicant’s “hopeful” position lacked merit in its subsequent decision dated 27 October 2022 using the metaphor of marriage to describe the facts that the Regulations required that a TSS Visa application be linked to a specific employer nomination at [7]:
[…] nominations and visa applications were specifically linked to one another; without the approved nomination married to the visa application being approved, the visa application would not be approved.
After the delegate made his decision on 17 May 2022, the Applicant did not have the benefit of the Tribunal’s succinct explanation until the Tribunal published its decision on 27 October 2022. The Tribunal was not, however, doing any more than setting out the law of which the Applicant had been notified on 11 April 2022. It was not a satisfactory explanation for the delay that the Applicant was “hopeful” that he would be granted the TSS Visa because his visa application would be linked to a new nomination even though the Regulations did not permit that to occur.
In addition, when cross-examined as to his explanation for the delay, the Applicant was not able to give any satisfactory reason for the delay. In actuality, he appeared to have a very limited understanding of the cause the delay in commencing his proceeding, as shown in the following exchange between the Applicant and Ms Roberts, the First Respondent’s solicitor:
MS ROBERTS: All right. So, today, you’re asking the court to consider your application for an extension of time to seek judicial review of the delegate’s decision that you were just looking at. And the time limit for lodging an application for judicial review was 35 days from the date of the delegate’s decision. Can you explain to the court in your own words why you didn’t lodge your judicial review application until 23 November 2022?
APPLICANT: I don’t know
Prejudice
The First Respondent conceded that it suffered no prejudice (other than costs) if an extension of time were granted but submitted that the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [349].
Ground 1: Was it legally unreasonable for the Delegate not to defer the decision to resolve the “linking” issue?
The Applicant submitted that before making the decision on 17 May 2022, the Delegate knew that the sponsor’s new nomination application had been submitted and that “a live issue was whether the second nomination application could be linked to the Visa application (the linking issue)” and that if the second nomination application were refused the Applicant intended to withdraw his application for two reasons: first, to avoid the bar to future visa applications under s. 48 of the Act and, secondly, to obtain a refund of the visa application charge (AS, [29]).
I do not accept that the “linking issue” was a live issue. The Applicant had raised the linking issue but it was not a “live issue” having regard to the prescription in the Regulations that a TSS Visa application had to be linked with a specific employer nomination.
The scheme of the Regulations is as follows.
Schedule 1, reg. 2.07(5)(a) provides that the Minister may specify an approved form for the making of an application for a visa of a specified class.
Schedule 1, reg. 1240(3)(f) provided that:
(f) If the applicant seeks to satisfy the primary criteria for the grant of a Subclass 482 (Temporary Skill Shortage) visa:
[…]
(iii) the application must identify the nomination; and
(iv) one of the following must apply:
(A)the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75;
(B)a decision in respect of the nomination has not been made under section 140GB of the Act; and
[Emphasis added]
Sch. 2, cl. 482.212 includes (among the primary criteria) to be satisfied for the grant of the TSS Visa:
482.212
(1) Each of the following applies:
(a)the nomination identified in the application has been approved under section 140GB of the Act;
[…]
[Emphasis added]
As the First Respondent’s submissions point out (and I accept) (RS, [33]),
On 18 March 2018 the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the amending legislation) repealed the criteria for the Subclass 457 visa and replaced it with the criteria for the “new” Subclass 482 visa. The repealed Subclass 457 criteria required that “a nomination of an occupation of the applicant has been approved under s 140GB of the Act” … (see cl 457.223(4)(a) of Schedule 2 to the Regulations, Compilation No. 187), and this allowed for new nominations to be “linked” to Subclass 457 visa applications if the original nomination application was refused.
[Emphasis added; original emphasis omitted]
With reference to the “new” Subclass 482 visa, cl. 482.212(1)(a), Sch. 2 of the Regulations refers to “the nomination identified in the application” (emphasis added). That is, the definite article has been substituted for the indefinite article. The amendment to the Regulations operated to remove the possibility of linking an existing TSS Visa application to a new sponsor’s nomination. The Regulations operated so that the visa application and the sponsor’s nomination were linked one to another. The Visa application was to be considered against a specific employer nomination.
In Singh v Minister for Immigration (2016) 253 FCR 267; [2016] FCAFC 141 Mortimer J (as she then was) explained — albeit with reference to a different regulation but in a way which is equally applicable to the regulation at issue in the current case — at [89] and [90]:
89.The structure of reg 5.19 contemplates … that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the subregulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved …. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90 … The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
[Emphasis added]
Although in May 2022 the Applicant’s representative had submitted to the Delegate that the linking issue was a live issue, the Applicant did not submit before me that the TSS Visa application could be linked to a new sponsor’s nomination on a correct (or arguable) interpretation of the Regulations.
The facts of this case
On 11 April 2022, the Applicant had been told for the purposes of s. 57 of the Act that the nomination (that is, the relevant specific employer nomination) had not been approved and the TSS Visa application could not be approved (CB21–23). The letter set out: “…your visa application cannot be linked to a new nomination application” (CB 21). Nonetheless, notwithstanding that communication and in a way which failed to grapple with its significance, on 9 May 2022, by way of a notification of a change in circumstances, the Applicant had nonetheless sought to link his visa application with a new nomination application.
The Applicant then submitted that on 13 May 2022 there was a telephone discussion between the Applicant’s representative and the Delegate during which the Applicant alleged the Delegate had said that he would “discuss the linking issue with his supervisor”. The evidence for this assertion was limited to a reference in a subsequent letter of the Applicant’s representative dated 23 June 2022 which read in part “the result of the telephonic discussion was that [the Delegate] was going to have a discussion with his manager on Monday, 16 May 2022” (CB 57).Besides the reference in the letter dated 23 June 2022 to the telephone conversation on 13 May 2022, there was no direct evidence before the Court as to the content of this telephone discussion on 13 May 2022.
The telephone discussion was in any event overtaken by subsequent correspondence from the Department. By the email dated 13 May 2022, the Delegate communicated in writing to the Applicant that there were insufficient grounds to provide further time to comment or withdraw the application and a decision may be made at any time after the close of business on 16 May 2022 (CB 29). I infer that the Applicant received this email after the telephone discussion because in a subsequent letter dated 16 May 2022 the Applicant’s representative wrote that : “I maintain my submissions as per our telephone communication of 13 May 2022, which was prior to me receiving your email of 13 May 2022” (CB 30; emphasis added). The Applicant’s representative maintained the position that he or she “believed that the new nomination application can be linked to the current visa application” (CB 30).
Section 47(1) imposes a duty on the Minister to consider a valid application for a visa. Section 65 governs the decision to grant or refuse the visa. The Act is silent as to the period within which the Minister must make a decision in respect of a valid application for a visa of a class other than a protection visa. By implication, the Delegate was obligated to consider the application and make a decision granting or refusing the TSS Visa “within a reasonable time”: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [37].
Was it unreasonable for the Delegate not to defer the decision?
The Delegate refused to defer the decision for the reasons set out in its email dated 13 May 2022: namely, that there were “insufficient grounds” to provide further time to the Applicant to comment or withdraw his application. As was recognised in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [82] (Hayne, Kiefel and Bell JJ):
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough" but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
In this case, the Delegate’s refusal to further defer the making of a decision was not legally unreasonable. On 11 April 2022 it had expressly advised the Applicant that his TSS Visa application could not be linked with the sponsor’s new nomination. The Delegate’s communication was based on an interpretation of the relevant Regulations the correctness of which the Applicant does not challenge in this Court. The Applicant then had a period approximately 5 weeks (11 April 2022 – 16 May 2022) to withdraw his application and to avoid the s. 48 bar and obtain a refund of the visa application charge. The Delegate then afforded the Applicant a further opportunity to withdraw his application before the close of business on 16 May 2022 (to avoid the s. 48 bar and presumably obtain a refund of his visa application charge) by its email dated 13 May 2022. On the material before me, the Applicant did not withdraw his TSS Visa application at any time between 11 April 2022 and 16 May 2022 because he apparently adopted the legally untenable position that the TSS Visa application could be linked with the new nomination. This was a case in which “enough was enough” and, having regard to the facts and the Delegate’s statutory duty to consider and grant or refuse the visa within a reasonable time, there was a transparent and intelligible foundation for the Delegate’s actions in not further deferring the decision after the close of business on 16 May 2022.
In my view, there is not sufficient merit to Ground 1 to grant an extension of time.
Ground 3: Was the visa application invalid such that the Delegate had not to consider it?
The Applicant submitted (AS, [42]):
The gravamen of Ground 3, pleaded in the alternative, is that once the first nomination application was refused the visa application became invalid and hence the delegate was barred by the effect of s 47(3) from considering the application further.
There is a distinction between the preconditions for making a valid visa application and the criteria for the grant of a visa.
Sections 46 and 47 of the Act and reg. 2.07 of the Regulations set out the requirements for a valid visa application. Section 46(3) is as follows: “the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.” Section 46(4)(a) provides that the regulations may also prescribe “the circumstances that must exist for an application for a visa of a specified class to be a valid application”. Regulations 2.07(1)(a), (3) and (5) provide that the Applicant must complete an approved form in accordance with any direction on it. I accept the First Respondent’s submissions at [42] that: “the visa application was validly made once the applicant lodged the application form, paid the fee and all the statutory requirements for a valid application were met”. Section 47(1) imposes a duty on the Minister to consider a valid application. In Minister for Immigration and Citizenship v Mon Tat Chan (2008) 172 FCR 193; [2008] FCAFC 155 Moore J held at [7]:
The dichotomy between a valid and invalid application serves a particular and specific purpose in the Act. It provides the barrier or gateway to the exercise by the Minister of the power to consider the application having regard to s 47.
[Emphasis added]
Further, sch. 1, cl. 1240(f)(iii) of the Regulations required that a valid application must identify the nomination. In this case, the Applicant identified the nomination by reference to its unique TRN (CB 1). As of 26 March 2021 (the date of the application) one of the circumstances in cl. 1240(f)(iv) applied: namely, “a decision in respect of the nomination had not been made under s. 140GB of the Act” in accordance with sch. 1, cl. 1240(f)(iv)(B).
By 26 March 2021, the Applicant had made a valid application. He had passed through the “barrier or gateway” which triggered the Delegate’s duty to consider the application: see Mon Tat Chan (above).
The Applicant’s difficulty was that once the sponsor’s nomination linked to his TSS Visa application, was subsequently refused some months later on 7 April 2022 (CB 50–51) he was not able to satisfy a primary criterion for the grant of his TSS Visa under sch. 2, cl. 482.212(1)(a).
Although the refusal of the nomination identified in the application meant that he could not satisfy a primary criterion for the grant of the TSS Visa, that did not detract from the fact that he had made a valid application on 26 March 2021. The submission fails to acknowledge the distinction between a valid application (on the one hand) and satisfaction of the criteria for the grant of the visa (on the other).
In my assessment there is not sufficient merit in Ground 3 and the Applicant’s argument that a “formerly valid visa application [became] an invalid visa application” (AS, [51]) to warrant the grant an extension of time. As Mortimer J observed in MZABP v. Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]: “…it will seldom be in the interests of the administration of justice to grant leave [for an extension of time] where an appeal has little or no prospects of success…”
CONCLUSION
I will refuse the application for an extension of time pursuant to s. 477(2) of the Act to seek judicial review of the decision made by the Delegate of the First Respondent. I will order that the Applicant pay the First Respondent’s costs in the amount of $8371.30, which both parties agreed was appropriate in the event that the Court refused the application for an extension of time.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 1 November 2023
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