Print a Portal Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 877
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Print a Portal Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 877
File number(s): MLG 1104 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 30 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Sponsored Migration Scheme visa (Subclass 187) – refusal of application for approval of a nomination –whether the application is competent– whether extension of time should be granted –whether the Tribunal failed to consider relevant documentation – grounds not reasonably arguable – application dismissed. Legislation: Migration Act 1975 (Cth) s 477
Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 42
Migration Regulations 1994 (Cth) reg 5.19
Federal Circuit Court Rules 2001 r 9.04
Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
Wong v Dong Lai Sun Massage Pty Ltd (2016) 305 FLR 423
Number of paragraphs: 50 Date of hearing: 17 March 2021 Place: Heard in Melbourne, delivered in Dandenong Advocate for the Applicant: In person Solicitor for the Applicant: None Solicitor Advocate for the Respondents: Ms O’Grady Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1104 of 2020 BETWEEN: PRINT A PORTAL PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The Application to the Court for an order to extend the time for filing under section 477(2) of the Migration Act 1958 be dismissed and in consequence, the Application filed on 2 April 2020, be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $3,737
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
The Applicant in these proceedings is Print a Portal Pty Ltd ACN 613 835 895 (‘Applicant’). The Applicant operates a printing business in Bairnsdale, Victoria.
The Applicant seeks review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 25 February 2020. In that decision, the Tribunal affirmed a decision of a Delegate of the Minister (‘Delegate’) to refuse a nomination under regulation 5.19(4) of the Migration Regulations 1994 (‘Regulations’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
On 11 May 2017, the Applicant lodged a nomination in connection with a visa. The Applicant applied to nominate the position of Graphic Pre-Press Trades Worker under regulation 5.19 of the Regulations. The relevant scheme type is the Regional Sponsored Migration Scheme visa (Subclass 187) (‘visa’) and the nomination was in the Direct Entry Nomination Scheme. Ms Lovepreet Kaur (‘Ms Kaur’) was the proposed nominee for the position.
On 21 July 2017, the Delegate wrote to the Applicant to advise that the Applicant’s application for approval of a nomination had been refused, on the basis that the nomination did not meet the requirements in sub regulation 5.19(3) or 5.19(4) of the Regulations. Specifically, the Delegate stated that the Applicant had not demonstrated that it had the financial capacity to be able to pay Ms Kaur a full-time salary of $54,000 plus superannuation for at least 2 years and therefore the Applicant did not satisfy regulation 5.19(4)(d)(i) of the Regulations.
On 9 August 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.
On 12 November 2019, the Applicant attended a hearing. Post-hearing documents were submitted by the Applicant on 11 December 2019.
On 25 February 2020, the Tribunal affirmed the decision to refuse the nomination.
The Applicant filed the application for review (‘Application’) and two affidavits in support in this Court on 2 April 2020.
The Minister filed a response on 22 April 2020. Among other things, the Minister contended that the Application was incompetent pursuant to rule 9.04 of the Federal Circuit Court Rules 2001 (‘Rules’) because the Application had been commenced by someone other than a lawyer. The Minister also contended that the Court did not have jurisdiction to entertain the Application because the Application was not filed within 35 days of the date of the decision of the Tribunal as required by section 477(1) of the Migration Act 1958 (‘Act’).
On 15 July 2020, the matter was listed before a Registrar. The Registrar made an order that the Applicant appoint a lawyer by 19 August 2020 pursuant to rule 9.04 of the Rules. The Registrar also made orders for the filing of a Court book and submissions. Further, the Registrar made an order that the Application be listed for hearing as to the ‘competency’ of the Application.
The matter was subsequently listed before me for interlocutory hearing. The issues before the Court are first, whether the Application is competent having regard to the content of rule 9.04 of the Rules and second, whether the Court should exercise the power under section 477(2) of the Act to extend the time for filing of the Application.
The Minister filed a written outline of submissions and a Court Book. The Applicant did not file any further affidavit or any outline.
It is necessary to record one further matter. Print a Portal Pty Ltd is operated by Mr Chetan Kanda (‘Mr Kanda’), who is the director of the Company. Ms Kaur is his spouse. Ms Kaur applied to the Department as the Primary Applicant for a Regional Employer Nomination (Permanent) (Class RN) visa. Mr Kanda and another person are listed as secondary applicants in Ms Kaur’s visa application. Ms Kaur’s visa application was also refused by a Delegate of the Minister and the Delegate’s decision was affirmed by the Tribunal. Ms Kaur sought a review of the decision of the Tribunal in this Court. Ms Kaur’s application in this Court was listed before me for a show cause hearing along with the present matter. Given the circumstances and the relatedness of the matters, the present matter and Ms Kaur’s application were heard together.
THE COMPETENCY OF THE APPLICATION
Rule 9.04 of the Rules provides as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
The Minister submits that the Application is not competent, that the Court should not grant leave to the Applicant to carry on the proceeding and that consequently, the Application should be dismissed. The Minister submits that rule 9.04 cannot simply be ignored.
The considerations as to whether the Court should grant leave to the Applicant to proceed without a lawyer have been summarised in other cases: see, for example, Wong v Dong Lai Sun Massage Pty Ltd (2016) 305 FLR 423 at [19]. Those are the principles I am to apply in this case.
It is pertinent to observe that this is not a matter in which the Applicant conducts significant business operations. A review of the Court Book discloses that the business is a small business located in Bairnsdale. It employs one Australian employee and one foreign employee (Court Book 5). Mr Kanda, who appeared before me for the Applicant, is a director of the business (Court Book 13, 148) (The Tribunal noted he is the sole director at paragraph 9 of the reasons). Mr Kanda conducts the business operations of the Company, for example, he signed documents for the Applicant (Court Book 17), signed contracts for the Applicant (Court Book 24) and is described in the Business Plan as the financer of business operations (Court Book 153). Further, given the scale of the operations and the information contained in the Court Book, I infer that the Applicant has limited funds. These matters lead me to conclude that Mr Kanda is more than capable, and indeed is well placed, to advance the case for the Applicant. Clearly he knows the business, is intimately involved in it and can speak to the issues within it. These matters weigh in favour of the Applicant being represented not by a lawyer, but by Mr Kanda.
Litigation in this Court is required to be conducted as informally as possible and in a streamlined manner (section 3 of the Federal Circuit Court of Australia Act 1999 (‘FCC Act’)). The Court is required to proceed without undue formality and must endeavour to ensure the proceedings are not protracted (section 42 of the FCC Act). Mr Kanda is well placed to speak for the Applicant. These matters weigh in favour of the Applicant being represented by Mr Kanda, and not by a lawyer.
The Court is also required to consider the relative complexity of the matter, whether a party can be effectively represented without prejudice, and whether the Applicant has been given an opportunity to arrange representation. Clearly, the Applicant has had an opportunity to arrange representation and has not done so. As to complexity and effective representation, there are differing considerations. Judicial reviews in this Court are technical and there is little doubt that parties benefit from having competent counsel present, as does the Court. As a general statement, it may be said that representation is always preferable. Equally, however, many applicants appear in this jurisdiction of the Court and represent themselves, sometimes successfully. These considerations in my view do not tilt the balance one way or the other.
When all the above matters are considered, I have decided that the Applicant ought to be granted leave to proceed with the Application without a lawyer. I therefore grant such leave as contemplated by rule 9.04 of the Rules, and reject the Minister’s submission that the Application is not competent because of non-compliance with rule 9.04.
EXTENSION OF TIME APPLICATION
The decision of the Tribunal was made on 25 February 2020. Pursuant to s. 477(1) of the Act, an application made to this Court must be filed within 35 days of the date of the relevant decision. The Application in this Court was filed on 2 April 2020. The Application is therefore two days out of time. The Minister opposes the grant of an extension of time.
Pursuant to s. 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The expression ‘in the interests of the administration of justice’ is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]) when determining whether an extension of time should be granted. The principles to be considered include the following:
(a)The extent of the delay;
(b)The explanation of the delay;
(c)Any prejudice to the Respondents;
(d)The impact on the Applicant;
(e)The interests of the public at large; and
(f)Whether the substantive case is ‘sufficiently arguable’ to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].
I turn now to deal with the facts of this case.
The extent of the delay and the explanation for it
The delay in filing the Application is two days. It is not significant. The Applicant in submissions before me contended that he was delayed in filing the Application because of the onset of the COVID-19 pandemic at the start of last year. In this respect, I observe that the Government made a series of announcements in March 2020 as to the pandemic which was at that time hitting Australian shores for the first time. I also observe that the first lockdown in Victoria, which came as a great surprise to many and a great disruption to most of daily life at the time, commenced on 25 March 2020. I therefore accept the Applicant’s submission that it was unable to have the documents witnessed and filed with the Court within the relevant time. This factor, therefore, favours the Applicant.
Prejudice
The Minister contended that he should not be put through the burden and cost of additional litigation in circumstances where the Applicant’s delay in making the Application remains unsatisfactorily explained. For the reasons given above, I do not accept that the delay was significant or that it has not been explained. I naturally accept that the mere absence of prejudice to the Minister is not sufficient of itself justify an order extending time. I am satisfied, however, that there is no prejudice that accrues to the Minister that cannot be cured by an order for costs. This factor, therefore, weighs in favour of the Applicant being granted an extension of time.
The merits of the substantive application
In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, a Full Court of the Federal Court of Australia endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involves recognition that the grounds had not been fully considered, developed and argued as if on final hearing. Accordingly, it is not appropriate when exercising the discretion to extend time to undertake a full consideration of the merits of the substantive application. Mortimer J, at [62]-[63] of her decision in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (‘MZABP’) reasoned as follows:
[62] . . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer [1998] HCA 27) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” ...
When regard is had to what I set out above, the merits of the application need to be evaluated at a reasonably impressionistic level such that the Court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless.
The Application contains three grounds of review. These are as follows:
1.That the second respondent did jurisdictional error by failing to consider the relevant documentation including but not limited to the factors affecting the business beyond the control of the nominating business, the nominating company's financial capacity and operational business's viability verified by the independent authority which has capacity to evident the salary package of the nominee can be paid for at least two years.
2.That the second respondent did error of law by over weighing the part of salary paid or to be paid to the proposed nominee which is less than actual package provided on the basis of casual work to the nominee and before the grant of the visa or before the commencement of the employment Agreement.
3.That the second respondent did error of law by not considering the business financials, Business Activity Statements as unverifiable documents whereas the documents are duly lodged with ATO and are verifiable and correct unless provided otherwise.
It can be seen from the above that under Grounds 1 and 3, the Applicant contends the Tribunal failed to consider various documents. The specific documents said not to have been considered are not identified by the Applicant within the grounds of review.
In respect of these contentions, I observe that the Tribunal set out in some detail at paragraphs [5], [7]-[8] and [13] the documents that it had before it in considering the Application. Those paragraphs identify, among other things, documents relating to the financial capacity and viability of the business. Documents listed in those paragraphs include bank accounts, BAS statements (described as ‘unverifiable’), financial statements, company business plans, a letter from CS Accountants and a Historical company extract.
There is then paragraph [19] of the decision of the Tribunal. In that paragraph, the Tribunal considers, among other things, the financial position of the business and its ability to pay a salary for the nominated position for a period of two years. Within its reasons at [19], the Tribunal expressly referenced PAYG statements, BAS statements, the lack of recent evidence of salary payments and recent payslips and the Accountant’s projections.
When the above matters are considered it appears, contrary to the Applicant’s contentions, that the Tribunal considered a range of information which included financial information.
Insofar as it may be contended that the findings of the Tribunal at paragraph [19] were not open to it (in particular, the finding in relation to the Applicant not being able to meet the proposed salary for a period of two years), it is to be observed that the findings at [19] appear to take into account not only the reasoning contained within paragraph [19], but also the Tribunal’s review and summary of the evidence at paragraph [13] of the reasons. Within that paragraph, the Tribunal references various matters including construction work that interfered with foot traffic, poor sales and the need to re-establish the business premises in assessing the financial capacity of the business. When these matters are considered, the finding of the Tribunal appears to have been one that was reasonably open to it.
Under Ground 3 and also in oral submissions before me, the Applicant took issue with the Tribunal’s use of the word ‘unverified’ or ‘unverifiable’ to describe a range of documents before it such as BAS statements and Financial Statements. In respect of this submission, I understood the Applicant to contend that these documents were ignored or given no weight by the Tribunal. The Applicant also submitted that while the documents were described as ‘unverified’ or ‘unverifiable’, they were nevertheless relied on by the Tribunal in reaching its conclusion.
I have been unable to find anything in the decision that indicates what the Tribunal meant when it described the documents as being ‘unverifiable’ or ‘unverified’. It is plain, however, when paragraph [19] of the decision is looked, at that the Tribunal had regard to and considered the documents it described ‘unverified’ or ‘unverifiable’ and indeed took account of their contents. The Tribunal notes that the ‘financial statements and unverifiable BAS statements do not support a finding that the business is able to sustain salary proposed for a two-year period’.
Those are not the only documents, however, that the Tribunal took into account in reaching its conclusions. It is apparent that the Tribunal also took account of the ‘positive accountant’s projections’, the lack of PAYG documentation, the Applicant’s acknowledgement of various issues, the loss of rented premises and the lack of information as to how printing was being performed.
When these matters are considered, it appears that the Tribunal not only considered the documents described as ‘unverifiable’ or ‘unverified’ and gave weight to them in its assessment, but also relied on them to support its own conclusions. It appears to me to be reasonably open to the Tribunal to proceed this way. There is nothing inconsistent about that approach. Further, the matters above demonstrate that the Applicant is not able to make out the argument embedded in Ground 3 that the documents were given no weight or were not considered.
By Ground 2, the Applicant submits that the Tribunal fell into error by, inter alia, ‘over weighing the part of the salary paid or to be paid’. There are two matters to note about this submission. First, regulation 5.19(2)(d)(i) of the Regulations requires the Tribunal to focus its attention on whether the ‘employee will be employed on a full-time basis in the position for at least two years’. A principal consideration therefore is whether the Applicant can pay the salary for that period. Given the content of the Regulation, it cannot in my view be reasonably argued that the Tribunal placed inappropriate significance or emphasis on whether the Applicant could pay the salary for the employment. It was a central aspect of the task the Tribunal was required to undertake. Second, the weight to be given by the Tribunal to any evidence, including evidence as to whether the nominee for the position was being paid on a casual basis, is a matter for the Tribunal. In any event, past payments to a nominee on a casual basis are not probative of whether a business would be able to meet the full-time costs of an employee for a future two year period, particularly in circumstances where there was other evidence that related to the current financial capacity of the business.
There are two other matters, not raised in the grounds of review but raised in oral submissions that need to be addressed. First, the Applicant claimed that the Tribunal was biased toward it. Second, that the Tribunal simply repeated the reasoning of the delegate.
Dealing first with the submission in relation to bias. Doing the best I can to understand the Applicant’s submission, I understood it to be a submission that the Applicant felt or feared the Tribunal was biased because of the approach that it took to reaching its conclusions and its treatment of the evidence submitted by the Applicant. To the extent the submission is to be understood in this way, I would reject it for the reasons I have outlined above. That is, the Tribunal did consider material that the Applicant claims was not considered. To the extent the submission is to be understood more broadly, I observe that the Applicant did not identify with any particularity how the bias was said to arise or any specific instances of bias. He did not place before the Court any transcript of the hearing before the Tribunal. There is simply not sufficient evidence before me to conclude that the Tribunal acted in a biased manner.
There is then the submission that the Tribunal has simply repeated the reasoning of the Delegate. The Delegate’s decision and the decision of the Tribunal cover the same territory i.e whether the Applicant meets the requirements of regulation 5.19(4)(d)(i) of the Regulations in respect of being able to provide any nominee with full-time employment for at least two years and pay a salary for that. In that circumstance, each decision addresses similar matters. I do not accept, however, that the decision of the Tribunal merely repeats what the delegate has found. This is not a case where the Tribunal has copied large parts of the reasons of the delegate and failed to bring an independent mind to the matters before it.
Finally, as I have noted above, this matter was heard together with the application by Ms Kaur. In her application, Ms Kaur took issue with reasons of the Tribunal in the present matter. Strictly speaking, Ms Kaur has no standing in the present matter. Given, however, that she is the spouse of Mr Kanda, that I granted Mr Kanda leave to represent the Applicant and that the matters were heard together, it seems appropriate to deal briefly with Ms Kaur’s complaints.
Ms Kaur made a number of complaints about the Tribunal in the present matter. First, that the Tribunal:
(a)failed to consider documentation pertaining to 2 years of prior employment with the Applicant (Ground 2 of the application filed in this Court by Ms Kaur on 17 July 2020 (‘Kaur Application’));
(b)failed to weigh vital information provided at the time of hearing (Ground 3 of the Kaur Application); and
(c)failed to consider financial documents such as BAS statements which it described as ‘unverifiable’ (Ground 5 of the Kaur Application).
I have outlined earlier in these reasons the approach of the Tribunal, the documents it considered and its reasoning in respect of those documents. I rely on these reasons in respect of the above submissions of Ms Kaur, and I do not accept Ms Kaur’s complaints.
Second, Ms Kaur submitted that the Tribunal ‘wrongfully’ applied ‘the terms and conditions of employment even before the actual commencement of full-time employment which was subject to approval of the visa application as per the employment agreement’ (Ground 4 of Kaur Application). This submission is difficult to follow and was not meaningfully expanded upon by Ms Kaur in oral argument. A review of the Tribunal’s decision demonstrates that it correctly identified the task before it and then concerned itself with an assessment of the evidence as to whether the Applicant satisfied the criteria contained in the Regulations. As I have noted earlier, the conclusion reached by the Tribunal in relation to whether the Applicant could employ Ms Kaur for a period of two years on the salary proposed, was a conclusion that was open to it given the evidence before it.
When all of the above matters are considered, at an impressionistic level, I am of the view that the proposed grounds of review are not reasonably arguable. The arguments advanced by the Applicant are attempts to cavil with factual findings and invite the Court to undertake a merits review.
CONCLUSION
Having regard to what I set out above, it is necessary to weigh up the factors discussed and assess whether the time period should be extended pursuant to section 477(2) of the Act. In the present matter, two factors weigh in favour of granting the Applicant an extension of time to file the Application. In my view, however, and unfortunately for the Applicant, those factors are outweighed when regard is had to the merits of the substantive claim. As I have noted, the grounds of review are not reasonably arguable and do not have reasonable prospects of success. In MZABP at [62], Mortimer J observed that it would ‘seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact of other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage’. This is a case, which, in my view, falls within the category identified by Mortimer J above.
For all of the above reasons, leave to extend time should be refused and in consequence, the Application be dismissed. The Minister seeks scale costs of $3,373. I will make an order for costs in the amount sought.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 30 April 2021
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