Shivan Enterprise Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 81
•24 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shivan Enterprise Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 81
File number(s): BRG 626 of 2020 Judgment of: JUDGE EGAN Date of judgment: 24 September 2021 Catchwords: MIGRATION – Second nomination application in respect of the same nominee – finding by delegate that the nomination application was not genuine – failure on the part of the applicant company to either appoint a lawyer to act on behalf of the company, or otherwise seek the leave of the Court that the applicant company was entitled to be represented in the proceeding by a director of the company – failure to comply with orders of the Court – no reasonable excuse or justification provided by or on behalf of the applicant as to why orders of the Court had not been complied with – application dismissed. Legislation: GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169.
MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392.
Cases cited: Federal Circuit Court Rules 2001 (Cth), rr 9.04.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9.04, 13.04, 13.05.
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 23 September 2021 Date of hearing: 23 September 2021 Applicant: Mr R. Nair appearing without leave of the Court on behalf of the Applicant company Solicitor for the First Respondent: Mr D. McLaren of Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
BRG 626 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DISIVION 2)
BETWEEN: SHIVAN ENTERPRISE PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
24 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 1 December 2020 be dismissed pursuant to the provisions of r. 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), due to the non-compliance by the applicant with Orders 3 and 4 of the Orders of the Court made on 3 August 2021.
2.The Applicant company pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $3, 737.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 EGAN:
Introduction
The applicant company applied for approval of the nomination of one Mr Rahul Nair in the nominated occupation of Café or Restaurant Manager on 6 October 2017.
A delegate of the Minister refused to approve the proposed nomination on 14 March 2018 on the basis that the delegate was not satisfied that the position associated with the nomination occupation was genuine. It was noted by the delegate that the subject nomination was the second nomination for the nominee – namely Mr Nair. In the reasons for the decision handed down by the delegate, it was said as follows: [1]
“According to ANZSCO, Cafe and Restaurant Managers organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
In assessing paragraph 2.72(10)(f) I have considered the information provided with the application in relation to the nominated position and the nature of the sponsor's business, as well as the ANZSCO description of the nominated occupation . I have referred to all available documents that have been provided in support of this application.
The duties listed to be performed by the nominee appear to be consistent with the role of Cafe and Restaurant Manager, as described in ANZSCO. However, when assessing the claimed duties of the nominee in the context of all information provided with the application, I am not satisfied that the proposed tasks that the nominee will be performing support the conclusion that the nominee is likely to be actually regularly performing the full breadth of duties as defined in ANZSCO of a Cafe and Restaurant Manager.
This nomination is the second nomination for this nominee for this business, and I note that the previous nomination was refused on the grounds of genuineness, as the assessing officer was not satisfied the evidence demonstrated the nominated occupation is genuine. I acknowledge that the applicant has provided a comprehensive submission addressing both the occupation caveat and genuineness. However, based on the application history and information currently available, I am not satisfied that the nominated occupation is genuinely that of a Cafe and Restaurant Manager.”
[1] Court Book (‘CB’) pp 113 – 114.
On 3 April 2018, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 28 October 2020, the Tribunal affirmed the decision of the delegate, similarly finding that the position associated with the nomination was not genuine.
Proceedings in this Court
On 1 December 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. The signature included at the bottom of such Originating Application was that of Rahul Shankarbhai Nair, recording that Mr Nair was “the applicant/s” and not the “lawyer for the applicant/s”’. Relevantly, Mr Nair was the nominee in respect of the nomination application.
This matter was listed for directions before this Court on 3 August 2021 at the request of the lawyers for the first respondent. On 29 July 2021, correspondence had been forwarded to Chambers by the first respondent’s lawyer attaching proposed consent orders which had been signed by each of the applicant and the first respondent’s lawyer. The first respondent’s lawyer was clearly alive to the fact that the provisions of r. 9.04 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) had not been complied with by the applicant company. Rule 9.04 of the Rules, as it then stood, relevantly provided as follows:
“9.04 Corporation must be represented
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.”
Following receipt by Chambers of such proposed consent orders, the directions hearing on 3 August 2021 was vacated, and procedural orders were made in Chambers, including the re-listing of the matter for directions on 20 September 2021. Such directions hearing was re-scheduled to 23 September 2021 at 9:45am. Orders 3 and 4, and Notation A to the orders of 3 August 2021, relevantly provided as follows:
“3.The Applicant is to appoint a lawyer and file and serve a Notice of Address for Service pursuant to the provisions of r. 9.04 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), by 4:00pm on 26 August 2021.
4.The Applicant shall file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review, by 4:00pm on 26 August 2021.
…
A.As the Applicant is a corporate entity, unless the Applicant is legally represented in accordance with r. 9.04 of the Rules, the Application is liable to be dismissed for want of appearance pursuant to the provisions of r. 13.03C(1)(c) of the Rules, together with costs.” ‘
On 17 September 2021, the first respondent filed an affidavit of one David McLaren, the solicitor who had carriage of the matter on behalf of the first respondent. Such affidavit deposed to three (3) sets of correspondence respectively forwarded to the applicant by the first respondent’s lawyers on 16 February 2021, 24 February 2021 and 7 May 2021, informing the applicant that the Originating Application for Review was incompetent on the basis of non-compliance with r. 9.04 of the Rules. [2] Each of those letters clearly pointed out that r. 9.04 of the Rules had not been complied with, the first respondent’s lawyers asking in such correspondence for the issue of non-compliance to be resolved expeditiously. In the email of 7 May 2021 directed to the applicant, it was said as follows:
“Dear Mr Nair
Thank you for your time on the phone earlier this morning.
As discussed, we request that you appoint a lawyer in this proceeding and file a Notice of Address for Service by the end of this month (May 2021). Alternatively, you may seek leave from the court to pursue the application without a legal representative.
If the applicant company remains unrepresented, or leave has not been sought from the court, the Minister may exercise his liberty to apply to the court for a listing for further directions, at which the Minister will make an application to dispose of the proceeding by way of a summary dismissal pursuant to rule 13.10 of the Rules for want of compliance with rule 9.04 of the Rules.
Kind regards,”
[2] Annexures ‘DMJM1’, ‘DMJM2’ and ‘DMJM3’ to the affidavit of David McLaren filed on 17 September
2021.
At the time that the matter was called on for directions on 23 September 2021, Mr Nair purported to appear on behalf of the applicant company. Mr McLaren appeared on behalf of the first respondent. Mr Nair conceded that the applicant had failed to appoint a lawyer and file a Notice of Address for Service in compliance with Order 3 of the Orders of this Court made on 3 August 2021. The applicant had also failed to file and serve an Amended Application for Review in breach of Order 4 of the orders of the Court made on 3 August 2021.
When Mr Nair was asked why the orders of the Court made on 3 August 2021 had not been complied with, he replied that he had spoken to some lawyers who were not prepared to act for him or on behalf of the company. When asked if he had anything further to say, he replied “no”.
This Court is satisfied that the applicant company well knew that it was in breach of the provisions of r. 9.04 of the Rules, and that it had so known since 16 February 2021. The applicant did not make any application to the Court for the company to have leave to not be represented by a lawyer. Further, the applicant has been on notice since 3 August 2021 that the Originating Application was liable to be dismissed should the applicant fail to appoint a lawyer in accordance with the provisions of r. 9.04 of the Rules.
Having submitted that the applicant was in default under r. 13.04(1)(a) of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the New Rules’), Mr McLaren made an application for dismissal of the Originating Application pursuant to the provisions of r. 13.05(1)(a) of the New Rules. Rules 13.04(1)(a) and 13.05(1)(a) of the New Rules relevantly provide as follows:
“13.04 When a party is in default
(1)For the purposes of rule 13.05, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or”
…
13.05 Orders on default
(1) If an applicant is in default, the Court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or”
In GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169, Collier, Rangiah and Derrington JJ at [25] said as follows:
“[25]… Generally speaking, a party’s financial circumstances or difficulties alone are an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 [12].”
Mr Nair was not able to provide any justification for the applicant’s non-compliance with either the rules of Court, or with orders of the Court. The applicant company had been on notice since 16 February 2021 that should it fail to remedy its non-compliance with the Rules, application might be made for summary dismissal of the Originating Application.
In the absence of any justification for the applicant having failed to take appropriate action so as to advance its claims, and in the face of repeated reasonable requests on the part of the lawyers for the first respondent that the applicant take action to remedy its default, the Court is satisfied that the applicant company had no real intention of pursuing its claim. Rather, the Court is satisfied that the Originating Application for Review was filed for the purpose of delay only, because of the applicant’s continued lack of response to reasonable requests made of it, as well as because of the applicant’s failure to comply with orders of the Court.
The Court is satisfied that, based upon the applicant’s past conduct, any adjournment to allow time for the applicant to comply with orders of the Court would not be in the interests of the due administration of justice. As was said by Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12]:
“[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a Court is entitled to be conscious of:
… the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
The Court grants the application for dismissal made on behalf of the first respondent.
The Originating Application for Review is dismissed pursuant to the provisions of r. 13.05(1)(a) of the New Rules.
The Court will hear the parties as to costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 24 September 2021
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