Qiao v Minister for Immigration
[2015] FCCA 1828
•6 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QIAO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1828 |
| Catchwords: PRACTICE AND PROCEDURE – Grounds in application abandoned at hearing – application for leave to file amended application at hearing – failure to comply with Court’s direction – amended application likely to fail – leave refused – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.457.223 of sch.2 |
| Poudyal & Anor v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 265 |
| Applicant: | YEZE QIAO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1950 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 March 2015 |
| Date of Last Submission: | 6 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Applicant: | Juris Cor Legal |
| Solicitors for the Respondents: | Mr M. Alderton, Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1950 of 2014
| YEZE QIAO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
In this case the applicant has abandoned both grounds that were contained in the application for review of the second respondent’s (“Tribunal”) decision. In lieu thereof, he applies to raise a new ground which was raised in correspondence from my chambers earlier in the week with the parties. The question posed in that correspondence was as follows:
Was it open to the Tribunal in its decision of 13 June 2014 to affirm the decision of the delegate on the basis that it was not satisfied that the criterion in cl.457.223(4)(a) of sch.2 to the Migration Regulations 1994 was met in circumstances where the Tribunal had, in a decision made on 14 May 2012 remitted the application for a visa for reconsideration with the direction that the applicant meets cl.457.223(4)(a)?
Both parties filed written submissions addressing that question. The first respondent’s submissions made a number of points, one of which was in reliance upon a decision of this Court as it was known previously, the Federal Magistrates Court of Australia. That decision was that of Smith FM in Poudyal v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 265.
The Minister submitted that that decision, and in particular at [38] and [39], were directly on point and decided that it was open to the Tribunal to determine the matter. The applicant also filed submissions and made oral submissions before me today to the effect that the question turns upon, amongst other things, the issue of the principles of functus officio. Mr Zipser, counsel appearing for the applicant, however, submitted that he could not say that the decision in Poudyal was clearly wrong.
Before I deal with that question I will briefly set out the facts which gave rise to the issue. The applicant applied for a Temporary Business Entry (Class UC) visa, on 10 July 2009. One of the criterion which he sought to meet in respect of that application was in sub-cl.457.223(4)(a) of the sch.2 to the Migration Regulations 1994 (“Regulations”) which provided:
(4) The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; …
On 26 November 2009 a delegate of the first respondent (“Minister”) decided that the applicant did not satisfy that criterion and so refused to grant the visa. The applicant applied to the Tribunal for review of that decision and on 14 May 2012 the Tribunal made its decision, finding, contrary to the decision of the delegate, that the applicant did satisfy that particular criterion. It relevantly said at [18]:
The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Business (Long Stay)) visa:
– cl.457.233(4)(a) of Schedule 2 to the Regulations.
The matter was remitted in accordance with that direction and on 9 January 2013 another delegate of the Minister made a decision refusing to grant the applicant the visa on the basis that he did not satisfy another criterion. The applicant once again applied to the Tribunal for review of that decision, and on 13 June 2014 the Tribunal (differently constituted) affirmed the decision of the delegate. It said, relevantly, at [6]:
The Tribunal accepts that at the time of the Department decision there was a current and approved business nomination in respect of the applicant. Given the time that has past (sic)and that nominations have a life of 12 months only, the applicant needs to show there is now an approved nomination in terms of the requirements of cl.457.223(4)(a).
It went on at [8]:
It noted that where a previously approved business nomination had ceased to have effect, a new approved nomination would have to be obtained by the sponsor. The Tribunal also noted that from 1 July 2013, the requirements for an approved business nomination under r.2.72 were amended to include r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine, and pointed out to the applicant that this was the basis of the Department’s decision in his case, under cl.457.223(4)(d)(ii).
The Tribunal then gave its reasons at [16] to [19]:
Because of this failure, s.359C(1) applies such that under s.360 of the Act the applicant is not entitled to appear before the Tribunal.
Further, in the circumstances of the case, namely that the applicant has not provided the information as requested, or requested an extension of time, or contacted the Tribunal about this matter at all, it exercises its discretion to make a decision on the review without taking any further action to obtain the information.
Accordingly the Tribunal proceeded to make a decision on the information and evidence before it. There is no information or documentary evidence before the Tribunal which shows there is a current and approved business nomination as required by cl.457.223(4)(a). The Tribunal so finds. Thus cl.457.223(4)(a) is not satisfied.
The Tribunal therefore finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of other streams in cl.457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.
Those were the circumstances in which the question arose and led to the correspondence with the parties and led ultimately to the application today to amend the original application. In considering whether to allow an amendment to the application I take into account the following matters. One is the considerable delay in the application. On 14 October 2014 the parties consented to orders made by the Court which included that the applicant have leave to file and serve any amended application giving complete particulars of each ground of review relied upon by 25 November 2014.
That leave was not exercised within the time prescribed by the order. No explanation has been given for that. Similarly, although not directly on point, other directions made on that day by consent such as for the filing of evidence and for the filing of written submissions were not complied with and there was also no explanation for that failure. Another consideration and perhaps the one with most weight is whether or not there is any utility in the grant of leave to amend. In that circumstance I have to consider, at least to some extent, the merits of the ground sought to be raised by the applicant. In my view those merits are determined by the decision of Smith FM in Poudyal.
Mr Zipser did not seek to distinguish that matter and accepted that it appears to be directly on point. I agree with that concession. Further, Mr Zipser, did not say that he could argue that it was clearly wrong. I also agree with that concession. In light of that and given the requirement, as a matter of judicial comity, to follow decisions of a single Judge of this Court, or Federal Magistrate as his Honour was, unless I am satisfied that they are clearly wrong, I would be bound upon a final hearing of this matter to apply that decision and therefore to reject the ground. For that reason I consider that there would be little utility in allowing leave to amend the application and to rely upon the matters raised in correspondence with the Court.
I have also taken into account the fact that there is no real prejudice to the Minister because he has appeared ready to argue the matter today and additionally the significance that it might have on the applicant. However, on balance, and particularly in light of the failure to explain the failure to comply with Court orders, the lack of leave given to amend at an earlier stage, and the utility in the amendment, I refuse leave to amend in the manner sought by the applicant.
Having refused leave to amend the application, and on the basis that the only two grounds remaining in the application have been abandoned by the applicant, the application must fail, and for that reason I order that the application be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 8 July 2015
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