Sidhu v Minister for Immigration

[2015] FCCA 2162

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2162

Catchwords:
MIGRATION – Application for an extension of time under s.477 of the Migration Act 1958 (Cth) – review of decision by the Tribunal to refuse to grant the applicant a subclass 457 visa – nomination lodged by applicant’s sponsor not approved – whether Tribunal failed to provide an opportunity for the applicant to adduce further evidence – no error in Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 338(2)(d), 477(2)

Ahmad v Minister for Immigration & Border Protection [2015] FCCA 1486
Minister for Immigration & Citizenship v Islam (2012) 202 FCR 46
SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252
Vu v Minister for Immigration & Citizenship (2008) 101 ALD 211

Applicant: RASHPAL SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 444 of 2015

Judgment of: Judge Smith

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Sydney

Delivered on: 14 August 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application for an extension of the period within which to make an application under s.476 of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 444 of 2015

RASHPAL SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of India who applied for a temporary business visa on 14 March 2013. In his application he indicated that he was sponsored by Local Fruit & Veg Pty Ltd ATF Local Fruit and Veg Trust. In order to be granted the visa his sponsor had to have nominated the applicant and a particular business activity and that nomination had to have been approved by the Minister.

2. On 16 September 2013 the application by the sponsor to approve its nomination of the applicant’s business activity was refused. As a consequence, on 4 November 2013, a delegate of the Minister refused to grant the applicant a visa. The applicant applied to the Migration Review Tribunal for review of that decision. There is an issue in the proceedings as to whether the Tribunal had any jurisdiction to review that decision. I will return to that issue in due course.

3. The applicant was invited by the Tribunal to attend a hearing on 11 June 2014, but he did not attend. On 16 June 2014, the Tribunal wrote to the applicant setting out particulars of certain information that it considered would be the reason or part of the reasons for its decision and invited the applicant to comment upon it. The information was that on 13 June 2014 the Tribunal affirmed the decision not to approve the nomination made by the sponsor. The applicant did not reply to this letter.

4. The Tribunal made its decision on 3 July 2014 affirming the decision under review. The reasons for the Tribunal’s decision was that it found that there was no current approved nomination relating to the applicant and so the criteria for the visa were not satisfied.

5. It was common ground between the parties that the applicant then applied to the Minister for the exercise of his discretion under s.351 of the Migration Act 1958 (Cth) and that the applicant was notified on 30 January 2015 that that application had been unsuccessful. Section 351 of the Act enables the Minister to make a decision that is more favourable to the applicant than the Tribunal’s decision.

6. On 24 February 2015 the applicant lodged an application in this Court for an extension of the period within which to apply for judicial review of the Tribunal’s decision.

Extension of time

1. An application for judicial review must be made within 35 days of the date of the decision. In this case, the application has been brought seven months after the Tribunal’s decision. However, the Court has power to extend the period within which to make such an application pursuant to s.477(2). There are two preconditions to that power: first, that an application for an order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and secondly that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. It is not in issue that the first of those conditions has been satisfied. The question, then, is whether the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending the period for making an application for judicial review.

3. There are no particular criteria specified in s.477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Court are at large although they must logically and sensibly relate to the interests of the administration of justice: SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252 at [46] per Foster J. The factors that are commonly relevant to this issue are:

   a)the extent of the delay;

   b)the reasons for the delay;

   c)any prejudice to the respondent;

   d)the impact on the applicant if time is not extended;

   e)the interests of the public at large;

   f)the merits of the proposed judicial review application; and

   g)the Court’s discretion itself.

Consideration

Delay

1. The reason that the applicant says he did not apply for judicial review until February 2015 is that he applied to the Minister for exercise of his power under s.351 of the Act. The Minister argues that it is well-established that the making of a request under s.351 of the Act is not an adequate excuse for delay, and relies upon the decision of the Full Court of the Federal Court in Vu v Minister for Immigration & Citizenship (2008) 101 ALD 211 at [28]-[32]. That case does not stand for the proposition for which it is relied. First, the Court there was considering whether to grant an extension of time within which to lodge an appeal under the Federal Court Act 1976 (Cth) which requires that there be “special reasons”. Secondly, the Court considered factors other than the bare fact of an application for the exercise of the Minister’s power.

2. That said, I am not satisfied that there has been a reasonable excuse given for the delay in bringing the proceedings. The applicant has not suggested that he was unaware of the availability of judicial review but only that he was “expecting justice” from the Minister. While there may be circumstances in which such an application will present a reasonable excuse, they are not present here. For example, it may be that an applicant is strongly advised to choose one path over the other and takes that advice intending to achieve the same outcome as would result from a judicial review application. In those circumstances, the applicant might be said not to have appreciated the difference between a ministerial intervention and court proceedings and the effect of applying to the Minister upon the extension of time required for judicial review.

Merits

1. The Minister argues that the Tribunal should have held that it had no jurisdiction to review the delegate’s decision and that, in any event, the grounds raised by the applicant in his application are unmeritorious.

2. In respect of the first of these arguments, the Minister relies upon the decision of Judge Street in Ahmad v Minister for Immigration & Border Protection [2015] FCCA 1486. The issue raised is complicated. The Tribunal only has jurisdiction where an application is properly made for review of an MRT-reviewable decision. Section 338 of the Act determines what is an MRT-reviewable decision.

3. Subsection 338(2)(d) provides that decisions to refuse to grant a visa are MRT-reviewable decisions where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind described for the purposes of the paragraph if:

   (i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

4. These two requirements apply to the visa for which the applicant applied, a subclass 457 visa: Minister for Immigration & Citizenship v Islam (2012) 202 FCR 46.

5. The Minister’s argument is that neither of the two conditions referred to at [13] above were met. That was because of the fact that the sponsor’s nomination of the applicant had not been approved, and there was no application for review of a decision not to approve the sponsor pending at the time of the application to review the delegate’s decision refusing the visa. That appears to be the effect of the decision in Ahmad.

6. It is not clear to me, however, that the facts of this case are on all fours with Ahmad. For instance, the evidence before me does not contain any reference to any application for review of a decision not to approve the sponsor. In any event, it is not necessary for me to come to a concluded view either as to the applicability or the correctness of the decision in Ahmad. I am currently concerned with the question of whether to extend the period within which to bring an application for review. This requires me to form a view as to the merits of any substantive application, not to come to a concluded view about those merits. For present purposes, it is sufficient for me to conclude that there is a reasonable argument for the Minister that it would be futile to grant an extension of the relevant period because the Tribunal does not, and never did, have any jurisdiction to review the delegate’s decision.

7. I turn then to the grounds raised by the applicant. They are:

   (a)DIAC made error in making a decision: Case officer did not give opportunity to lodge another Nomination application.

   (b)My nominator sold the business, which was beyond my control. As per law of natural justice, I must be provided opportunity to lodge another nomination.

   (c)I would have provided another nomination approval if I was given an opportunity to lodge nomination from the current business owner.

   (d)Migration review tribunal should have provided an opportunity to me to submit another approval of nomination.

   (e)Migration Review Tribunal made an error by not providing opportunity to me as natural justice.

8. The first three of these grounds are not relevant to the decision of which the applicant seeks judicial review. Rather, they focus upon the decision not to approve the nomination of his sponsor. In those circumstances, I accept the Minister’s submission that they are unmeritorious.

9. The fourth and fifth grounds face a significant difficulty that the applicant was aware by virtue of the reasons for the delegate’s decision that he would fail to obtain a visa without a sponsor whose nomination had been approved. This awareness ought to have been heightened by the letters sent by the Tribunal indicating that the fact that there was no approved nomination would be the reason or part of the reason for its decision. Nevertheless, the applicant failed to reply to that letter. Finally, although the Tribunal invited the applicant to attend a hearing to give evidence in support of his claims he did not attend that hearing. In my view, the applicant had a reasonable opportunity to address the circumstances which ultimately led to the affirmation of the delegate’s decision. For that reason the third, fourth and fifth grounds are unlikely to succeed on any final hearing.

10. In summary, I consider that there are no reasonable merits in the application.

Balance of considerations

1. The balance of the considerations relevant to the issue for determination may be dealt with shortly. First, the Minister does not suggest that there is any prejudice to him in any extension of the period for applying for judicial review. Secondly, the relevant circumstances affecting the applicant appear to me to be that, if an extension were not granted, he would be denied a right of appeal from a final decision. Thirdly, the interests of the public at large are, generally speaking, that decisions of administrative decision makers are to be brought to finality as soon as possible. This explains the existence of the time limit under the Act for judicial review. That must be balanced against the competing interest that decisions are to be made according to law; however, it is a matter I have taken into account in considering the merits of the application.

Conclusion

1. Having considered all of those matters and the evidence before me, I am not satisfied that it is in the interests of the administration of justice to make an order extending the period within which to bring an application for review of the Tribunal’s decision. For that reason, one of the preconditions to the power to extend time does not exist and the application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 14 August 2015