Sandhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1188
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1188
File number(s): MLG 3369 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 11 November 2024 Catchwords: MIGRATION – extension of time application – applicant filed 2 days out of time – Temporary Work (Skilled) (Subclass 457) visa– where Tribunal affirmed decision of the first respondent to cancel visa – where applicant has ceased employment for more than 60 days in breach of condition 8107(3)(b) of Schedule 8 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to consider the hardship and personal circumstances of the applicant – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 116(3), 140, 140(1), 360, 360A, 476(1), 477(1), 477(2), Pt 5, Div 5
Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) condition 8107(3)(b) of sch 8
Convention on the Rights of the Child art 3.1
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49.
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 7 October 2024 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Ms Bosnjak of Mills Oakley Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3369 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULDEEP SINGH SANDHU
First Applicant
HARPREET KAUR
Second Applicant
SAVREEN KAUR SANDHU
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Applicants have leave to amend the Application filed 4 October 2019 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
3.The Application filed on 4 October 2019 be dismissed.
4.The Applicants pay the First Respondent’s costs in an amount to be fixed, if not agreed.
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 J YOUNG:
Before the Court is an Application filed on 4 October 2019 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek a judicial review of a decision of the second respondent (Tribunal) dated 28 August 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the first applicant’s Temporary Work (Skilled) (Subclass 457) visa (Visa). The Tribunal found it had no jurisdiction in relation to the second and third applicant.
CONTEXT
The applicants are citizens of India. The first and second applicants are husband and wife, respectively, and the third applicant is their daughter.
On 14 July 2008 the first applicant (Applicant) entered into Australia on a student visa.
On 20 February 2018 the Applicant was granted the Visa on the basis of an approved nomination to work as a Cook for Tara & Sons Pty Ltd (Sponsor). The second and third applicants were granted a subclass 457 visa as members of the Applicant’s family unit.
The Applicant’s Visa was subject to condition 8107(3)(b) of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations) requiring that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.
On 10 May 2018 the Sponsor informed the Department of Home Affairs (Department) in writing that the Applicant’s employment had ceased effective 10 May 2018. No further nomination was lodged in respect of the Applicant by any other employer.
On 9 July 2018, the ground for cancellation arose when the Applicant ceased employment for more than 60 consecutive days.
Notice of intention to consider cancellation
On 19 March 2019 and 28 March 2019 the Department issued the Applicant a “Notice of Intention to Consider Cancellation” (NOICC) of the Visa under s 116(1)(b) of the Act due to non-compliance with condition 8107(3)(b) of Schedule 8 of the Regulations.
On 26 March 2019 and 4 April 2019 the Applicant provided a response to the NOICC. In his response, the Applicant provided the following reasons as to why the Visa should not be cancelled:
·he has worked in the Sponsor restaurant for almost two and a half years until 10 May 2018 when his employer permanently closed the business;
·in November 2017 he took leave from work to visit his sick mother in India. When he returned from leave the employer had closed the business;
·he conceded that he had ceased employment for more than 60 days but requested that he be given more time to find a new employer;
·after he ceased employment, he tried to find a new sponsor, however he could not find a new employer. He has tried everywhere, but most employers are looking for permanent residence workers and do not want to involve themselves with the paperwork for a 457 visa; and
·he claimed that he and his family would experience hardship if the Visa was cancelled.
On 17 May 2019 the Delegate cancelled the Applicant’s Visa under s 116(1)(b) of the Act (Delegate Decision). The Delegate found a ground for cancellation existed as the Applicant had ceased employment for more than 60 days and was satisfied that the reasons for cancelling the Applicant’s Visa outweighed the reasons for not cancelling. The second and third applicants’ visas were automatically cancelled by the operation of s 140 of the Act.
On 22 May 2019 the Applicant applied to the Tribunal for review of the Delegate Decision.
On 1 August 2019 the Tribunal emailed the Applicant inviting the applicants to attend an in-person hearing on 21 August 2019 at 10.00am The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided and that if the Applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 21 August 2019, the applicants attended a hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Punjabi and English languages.
On 28 August 2019, the Tribunal affirmed the decision of the Delegate to cancel the Applicant’s Visa and found it did not have jurisdiction in relation to the second and third applicants. On 30 August 2019, the Tribunal sent a copy of its decision and reasons to the Applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 28 August 2019 (Tribunal Decision).
At paragraph [2] of the Tribunal Decision, the Tribunal identified that the issue was whether the ground for cancellation under s 116(1)(b) of the Act exists and, if so, whether the Visa should be cancelled.
At paragraph [3] of the Tribunal Decision, the Tribunal found that for the purposes of s 348 of the Act, the only decision before it was in relation to the Applicant. The second and third applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the Applicant’s visa. Therefore, the Tribunal had no jurisdiction with respect to the second and third applicant.
As the Applicant conceded that he had ceased to be employed by the Sponsor on 10 May 2018, had not obtained employment with another sponsor, and accordingly had ceased employment for more than 60 consecutive days in breach of condition 8107(3)(b), the Tribunal was satisfied that the ground for cancellation in s 116(1)(b) of the Act existed. As that ground did not require mandatory cancellation under s 116(3), the Tribunal proceeded to consider whether the power to cancel the Visa should be exercised.
At paragraphs [41] – [45] of the Tribunal Decision, the Tribunal considered the Applicant’s purpose of travel and stay in Australia. The Tribunal accepted the Applicant’s evidence that he had originally travelled to Australia on a student visa to study commercial cookery and then sought to obtain practical experience as a cook before returning to India. However, the Tribunal did not attach significant weight to this consideration in circumstances where the Applicant was no longer sponsored or working, had spent 11 years in Australia on temporary visas and did not have compelling reasons to remain in Australia.
At paragraphs [46] – [52] of the Tribunal Decision, the Tribunal considered the Applicant’s compliance with visa conditions. The Tribunal found that the closure of the Sponsor’s business was outside the Applicant’s control, the inability of the Applicant to secure an alternative sponsor within 60 consecutive days was within the Applicant’s control and thus he did not comply with condition 8107. The Tribunal gave significant weight to this consideration.
At paragraphs [53] – [61], the Tribunal considered the degree of hardship the Applicant would experience due to the Visa cancellation. The Tribunal acknowledged that the Applicant and his dependents may experience some hardship due to the cancellation of his Visa and departing Australia but found his qualifications and work experience would enable him to obtain employment in India and that he and his wife and child would have family support in India. The Tribunal accepted that the Applicant’s mother died in December 2018 and that this would have caused him stress but did not accept that posed hardship in the context of the Applicant’s continuing status of remaining in Australia, particularly noting that the mother’s death was subsequent to the loss of the Applicant’s Sponsor in May 2018. Due to the limited evidence provided in the context of the effects of the hardship, the Tribunal did not give significant weight to this consideration.
At paragraph [62], the Tribunal was satisfied there was no known adverse conduct by the Applicant toward the Department and gave this some weight in the Applicant’s favour.
At paragraphs [63] – [64], the Tribunal found the cancellation of the Applicant’s Visa would result in the consequential cancellation of the visas of the Applicant’s wife and daughter by operation of s 140 of the Act, but gave this little weight in circumstances where the immigration status of the family would remain aligned and the family unit would not be split.
At paragraphs [67] – [74], the Tribunal accepted the Applicant would face mandatory legal consequences as a result of cancellation, including liability for detention and removal as well as restrictions on further visa applications, but noted the applicants would be able to mitigate this consequence by voluntarily departing Australia as the holders of Indian passports and gave this factor little weight.
At paragraphs [74] – [83] the Tribunal considered whether Australia would be in breach of any of its international obligations if the Tribunal exercised its discretion to cancel the Applicant’s Visa. The Tribunal noted that a decision to cancel the Visa would result in the consequential cancellation of the Applicant’s daughter’s visa but found that the daughter would not be split from her parents and so the principles of family unity under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights would not be affected. The Tribunal found the daughter was an Indian citizen and would not be denied services, including health and education, in India.
Considering the circumstances as a whole, the Tribunal concluded that the Visa should be cancelled and affirmed the decision under review.
APPLICATION FOR AN EXTENSION OF TIME
At the hearing of this matter before the Court, the applicants were self-represented. The Applicant acted as litigation guardian of the third applicant pursuant to Orders made by consent on 8 July 2020.
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal Decision was made on 28 August 2019. An Application for judicial review of that decision in this Court was required to be filed by 2 October 2019. The Application for judicial review was not filed until 4 October 2019.
Accordingly, the Application was made 2 days after the expiry of the statutory timeframe.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and the explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive Application.
In the Application filed 4 October 2019, the applicants stated the following with respect to why they say it is necessary in the interests of the administration of justice to extend time (without amendment):
1.Got email of decision on 30/8/2019
2.VEVO also showing till 04/10/2019 35 days.
3.I also got call from immigration on 18/9/19 they say you have time till 4/10/19
Delay and explanation
At the hearing, the Applicant submitted that the reasons for the late filing of the Application were because he was looking for a lawyer to assist him and he received a telephone call from immigration in which he was told that he had until 4 October 2019 to file the Application.
The delay in filing is short, being a period of only 2 days. However, for the following reasons I do not consider that the applicants have provided a satisfactory explanation for the delay.
Firstly, that the applicants were seeking legal representation cannot provide an acceptable explanation for the delay. It is well established that an inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for the delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37] (WQRJ). There is no entitlement to legal representation and, indeed, in the migration jurisdiction, it is more common than not that applicants are self-represented. In addition, there is no evidence before the Court of any enquiries the Applicant made in order to obtain legal advice or assistance.
Secondly, ignorance of time limits or a misunderstanding as to the calculation of those time limits is not an acceptable explanation for the delay.
Thirdly, as to the assertion that the applicants were advised in a telephone call that the Application could be filed until 4 October 2019, the applicants have not filed any evidence to substantiate this claim. Further, by letter dated 30 August 2019 the applicants were advised that the Tribunal had affirmed the decision under review. Attached to that correspondence was a document entitled “Information about decisions – MR Division” which included the following information:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
Accordingly, the applicants were provided with information regarding their right of review and the time frames that applied to it.
I consider this weighs against the grant of an extension of time.
Prejudice
The Minister properly did not contend it would suffer any particular prejudice (save as to costs) if the applicants were granted an order allowing an extension of time.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this to be a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the Applicant, which are considered below, will of course be relevant to this.
It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the Applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act, the refusal of an explanation for an extension of time forecloses any right of appeal. MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, at [65].
I accept that a refusal to grant an extension of time would result in the applicants returning to their country of nationality and that this weighs in favour of the grant of an extension of time.
Merits of the substantive application
While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.
The Application contains the following four grounds for judicial review (without amendment):
1.The AAT failed to take the facts of application without giving me sufficient opportunity to justify my claim.
2.Tribunal rushed up with its decision without following the principal of natural justice.
3.The Member did not consider personal circumstances of mine and inappropriately upheld the decision of the department in a procedural manner.
4.The delegate did not consider the degree of hardship being caused to me.
An affidavit annexing a copy of the Tribunal Decision (First Affidavit) was also filed in support of the Application on 4 October 2019. That affidavit contained the following additional grounds for review (without amendment):
1.The AAT failed to take the facts of application without giving me sufficient opportunity to justify my claim.
2.The AAT determined that they have no jurisdiction without following the principal of natural justice, I plead a court hearing to set aside the Tribunal decision.
Given the Applicant is self-represented, the Court proposed to proceed on the basis of the grounds contained in the Application and the First Affidavit. That approach was not opposed by the Minister. Grounds 1 and 2 contained in the First Affidvit will be referred to as grounds 5 and 6 respectively.
It is noted that the Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Application being amended for the applicants to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I will order accordingly.
Oral submissions at the hearing
At the hearing the Applicant further elaborated on the grounds for review and made the following submissions:
(a)the Tribunal did not take into account the hardship which would be occasioned by the cancellation of the Applicant’s visa;
(b)the Applicant lost his employment through no fault of his own;
(c)the Applicant was unable to find alternative sponsorship within 60 days;
(d)the Applicant has not committed any crime, he has paid his taxes, his wife works in aged care and he and his wife help others in the community whenever they can;
(e)the Applicant and the second applicant have a daughter who was born here and attends school;
(f)the Applicant’s mother was ill and died and this caused the applicant considerable stress; and
(g)the applicants have lived in Australia for 16 years and have no future in India.
At the hearing the Applicant also sought to tender an affidavit dated 28 August 2024 (Second Affidavit), an undated word document (Document) and the birth certificate for the Applicant’s youngest child born 1 January 2022. The Minister did not oppose receipt of these documents by the Court. I have had regard to the Second Affidavit and the Document, which largely replicate the oral submissions made by the Applicant at the hearing and shall not be referred to separately. I have not had regard to the birth certificate as the birth of the applicant’s second child post-dates the decision of the Tribunal.
It is convenient to first address the Applicant’s oral submissions as these submissions were made at various points in the hearing in relation to various grounds contained in the Application and the First Affidavit, although it is clear that most do not particularise or relate to the pleaded grounds.
Contrary to the Applicant’s submissions, all of the Applicant’s oral submissions set out in (a) – (g) above and those contained in the Second Affidavit and the Document, were considered by the Tribunal as follows:
(1)at paragraph [46]-[52] the Tribunal considered the Applicant’s compliance with Visa conditions. The Tribunal accepted that the closure of the Sponsor’s business was outside the Applicant’s control and that the Applicant had been unable to find an alternative sponsor within 60 days. However, the Tribunal was satisfied that the Applicant was in breach of Condition 8107 and indeed this does not appear to be contested;
(2)at paragraph [24] the Tribunal said:
The Tribunal sought advice from the applicant concerning ‘hardship’ that would arise, in circumstances where the applicant's visa was to be affirmed as cancelled. The applicant responded that he had been living in Australia for 11 years and his wife for the last 5 years and that he had not been convicted of any crime and that he was a genuine resident here [Australia].
(3)at paragraph [53] – [61] the Tribunal considered the hardship the Applicant would experience due to the cancellation of the Visa and acknowledged that the Applicant and his dependents may experience some financial, psychological and emotional effects or other hardship from the cancellation of the Visa. However, given the limited evidence of the effects of these hardship, the Applicant’s educational qualifications and work experience and the fact that the Applicant has family and support in India, the Tribunal did not give this any significant weight. The Tribunal accepted that the Applicant’s mother died in December 2018 and that this would have caused him stress but did not accept this would have posed hardship in the context of the Applicant remaining in Australia, noting that the Applicant’s mother’s death was subsequent to the loss of sponsorship in May 2018;
(4)at paragraph [53] the Tribunal notes that the Applicant’s wife was working as a personal care assistant;
(5)at paragraph [54] the Tribunal notes the hardship which would be occasioned to the Applicant’s daughter’s attendance at a local kindergarten if the Visa was cancelled but also notes that India has a compulsory and free education system from the age of six to 14 years;
(6)at paragraph [78] – [79] the Tribunal considered Article 3.1 of the Convention on the Rights of the Child, noting that the Applicant’s daughter lives with both parents, would not be separated from either parent if the Visa was cancelled and as a citizen of India would have access to education and health service in India;
(7)as to the length of time that the Applicant has lived in Australia and his desire to remain here, at paragraph [20] the Tribunal noted the Applicant’s evidence that he first came to Australia for the purposes of study eleven years ago (at the time of hearing) and that he subsequently started working and “liked the place”. At paragraph [21] the Tribunal said:
The Tribunal asked the applicant when he was intending to go home given that he was a Temporary visa applicant and the applicant avoided providing a response other than to say that it was about his future and that he wanted to live here…
Accordingly, all of the matters raised by the Applicant at the hearing were also raised before the Tribunal and considered by it.
Grounds 1 and 5
By Grounds 1 and 5, the Applicant submits that the Tribunal failed to consider the facts of the application without giving the Applicant sufficient opportunity to justify the claim.
Grounds 1 and 5 are entirely unparticularised. This alone is a sufficient basis to dismiss these grounds: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16).
To the extent that Grounds 1 and 5 assert that the applicants were denied procedural fairness because they were not given a “sufficient opportunity” to present their case, these grounds must fail.
The Tribunal complied with its procedural fairness obligations under Part 5 Division 5 of the Act. The applicants were invited to a hearing in compliance with ss 360 and 360A of the Act and did so attend a hearing before the Tribunal on 21 August 2019 where they gave evidence and presented arguments. Further, as recorded at paragraphs [10] – [31] of the Tribunal’s decision, the issues on the review were discussed with the applicants at the hearing. There is nothing to suggest that the applicants were denied a meaningful opportunity to participate in a hearing. Finally, it is clear from the Tribunal’s decision that the Tribunal considered all the material provided by the applicants and the submissions made at the hearing.
Accordingly, Grounds 1 and 5 of the substantive Application disclose no reasonably arguable jurisdictional error by the Tribunal.
Ground 2
By Ground 2 the Applicant contends a denial of natural justice due to the Tribunal being “rushed”’ in their procedural decision making. This ground also does not contain any particulars and must fail.
The application for review was lodged on 22 May 2019 and the hearing took place on 21 August 2019. The Tribunal made its decision on 28 August 2019, a week after the hearing. As such, it cannot be said that the decision was rushed or that the applicants did not have sufficient time to provide evidence. Further, there is nothing to indicate that the applicants requested any additional time. Finally, as set out above, the Tribunal complied with its procedural fairness obligations under Part 5 Division 5 of the Act.
Accordingly, Ground 2 of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 3
By Ground 3, the Applicant submits that the Tribunal did not consider the Applicant’s personal circumstances and inappropriately upheld the decision of the Department. This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW; BDE16.
Further, as set out above, the Tribunal’s decision discloses that it did consider the applicants’ claims and personal circumstances, but ultimately determined that the Visa ought be cancelled.
Accordingly, Ground 3 of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 4
By Ground 4 the applicants assert that the “delegate” did not consider the degree of hardship the Visa cancellation would cause.
To the extent the applicants are seeking to challenge the decision of the Delegate, pursuant to s 476(2)(a) of the Act, that decision is a primary decision, and the Court does not have jurisdiction to review that decision.
To the extent that the applicants are claiming that the Tribunal failed to consider the degree of hardship on the Applicant, Ground 4 must fail. As stated above, at paragraphs [53] – [61] of the Tribunal Decision, the Tribunal considered the degree of hardship the Applicant would experience due to the Visa cancellation.
Accordingly, Ground 4 of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 6
By this ground, the Applicant contends that the Tribunal did not follow the principal of natural justice and incorrectly determined its jurisdiction in relation to the second and third applicant.
At the hearing, the Applicant was unable to particularise this ground. At paragraph [3] of its decision, the Tribunal determined that it had no jurisdiction in relation to the second and third applicants, saying:
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant's visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
I consider the Tribunal’s analysis as to its jurisdiction to be correct. Further, in circumstances where the second and third applicant’s visa were cancelled pursuant to s 140(1) of the Act, the Court does not have jurisdiction with respect to the second and third applicants. Whilst the second and third applicants may have standing to challenge the Tribunal’s finding in relation to the lack of jurisdiction with respect to their applications, this is not the basis of the judicial review application.
Ground 6 discloses no reasonably arguable jurisdictional error on the Tribunal’s behalf.
Futility
The Minister submits that in circumstances where the Applicant’s Visa was due to expire on 20 February 2020 and Subclass 457 visas were abolished on 18 March 2018 by the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), that even if the Tribunal’s decision were affected by jurisdictional error, the Court should refuse prerogative relief in the exercise of its discretion because the Applicant could not be granted a 457 visa following the grant of relief. For completeness, and noting that I have found that there is no reasonably arguable jurisdictional error on the Tribunal’s behalf, I accept that submission and consider it relevant to whether the grant of an extension of time is in the interests of the administration of justice.
CONCLUSION
The Application in this case is 2 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The Application is dismissed.
The Minister seeks an order that the applicants pay their costs. I shall order that the applicants pay the Minister’s costs in an amount to be fixed if not agreed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated:11 November 2024
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