Singh v Minister for Immigration - [2010] FMCA 813

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 813

MIGRATION – Review of a decision of the Migration Review Tribunal – Employer Nomination (Residence) visa – application for judicial review was made out of time – the Tribunal was obliged to inform the applicant that it had affirmed the delegate’s decision in relation to a separate but related matter – jurisdictional error – not in the interests of administration of justice that time for judicial review be extended – application dismissed as not competent.

Migration Act 1958 (Cth), ss.359AA, 359A, 424A, 476, 477
Migration Regulations 1994 (Cth), Sch.2 cl.856.221

North Shore Sikh Association Incorporated v Minister for Immigration & Anor [2010] FMCA 812
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minsiter for Immigration and Citizenship [2009] FCAFC 46
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
Barkat v Minister for Immigration & Multicultural Affairs [2000] FCA 510
Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907
Wang v Minister for Immigration and Citizenship [2007] FCA 488

Applicant:

GULZAR SINGH & ORS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1501 of 2010

Judgment of:

Nicholls FM

Hearing date:

27 August 2010

Date of Last Submission:

27 August 2010

Delivered at:

Sydney

Delivered on:

29 October 2010

REPRESENTATION

Appearing for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 27 August 2010 to extend time is refused.
The application made on 7 July 2010, and amended on 27 August 2010, is dismissed as not competent.
The first named applicant to pay the first respondent’s costs set in the amount of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1501 of 2010

GULZAR SINGH AND ORS

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This matter should be read with North Shore Sikh Association Incorporated v Minister for Immigration & Anor [2010] FMCA 812 (“North Shore Sikh Association Incorporated”).
The application in this matter was made on 7 July 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicants, Mr Gulzar Singh, his wife, and two children, seek review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 May 2010, which affirmed the decision of the delegate of the respondent Minister not to grant them Employer Nomination (Residence) visas.
Mr Singh was employed by the North Shore Sikh Association (“the Association”) as a religious worker since September 2005. In December 2006 the Association applied for approval of a nominated position as an approved appointment under which it was proposed to employ Mr Singh. That matter was addressed in North Shore Sikh Association Incorporated, where I found no jurisdictional error in any decision of the Tribunal that affirmed the delegate’s decision to refuse that application.
Concurrent with that application, Mr Gulzar Singh, with members of his family, applied for Employer Nomination (Residence) visas (CB 1 to CB 24). They were assisted by a registered migration agent (CB 25).
For the visas to be granted, Mr Gulzar Singh was required, amongst other things, to satisfy the Minister’s delegate that he met the criteria for the visa set out in Schedule 2 cl.856.221 of the Migration Regulations 1994 (Cth). He could not do this in essence, this was because the nomination by the Association, the relevant employer, had not been approved. The family’s applications were also refused as a consequence, as the grant of any visa to them required Mr Singh to have been granted a visa (CB 93 to CB 106).
Mr Singh, his wife, and two children applied for review by the Tribunal on 25 August 2008 (CB 107 to CB 113). They continued to be represented by the same migration agent (CB 111).
By letter dated 21 August 2006, and sent to the recipient authorised to receive correspondence on their behalf, the Tribunal invited comment from the family on certain information that it said would be the reason or a part of the reason for affirming the delegate’s decision (CB 121 to CB 122).
This information in essence was that the nomination lodged by the Association was refused by the delegate. This was said to indicate that the appointment to the position in the business of the Association, that was a part of the Association’s nomination, was found not to be an approved appointment.
The Tribunal explained that if it also made that finding, it may mean that Mr Singh, and consequently his family, could not meet a relevant criterion for the grant of the visa for which he had applied.
The applicants responded through their migration agent on 25 September 2009 (CB 126 to CB 127).
Mr Singh and his family were invited to a hearing before the Tribunal (CB 129). Mr Singh and his wife attended with their representative and a number of witnesses on 9 March 2010 (CB 135). The only account of what occurred is set out in the Tribunal’s decision record ([14] at CB 140).
The Tribunal made its decision to affirm the delegate’s decision on 5 May 2010 (CB 138 to CB 141). The Tribunal’s reasons were that it had previously affirmed the delegate’s decision which found the Association’s application for appointment under the Employer Nomination Scheme was not approved. Given that Mr Singh must be nominated by an employer to meet a necessary criterion for the visa he had applied for, and given that the nomination had not been approved, Mr Singh did not meet the criteria in cl.856.221. On this basis the family also could not meet the criterion of being members of the family unit of a person who had been granted such a visa.

Before the Court

On 9 June 2010 the Association made an application to the Court seeking review of the Tribunal’s decision relevant to the Association. (See North Shore Sikh Association Incorporated.) On its face, that application had stated on it a “Gurdav Singh” as the second applicant. No reference was made as applicants to any of the other three applicants currently before the Court.
At the first Court date in that matter on 7 July 2010 it was made clear that two separate applications to the Court were required, given that there were two separate Tribunal decisions: one relating to the Association, the other to Mr Gulzar Singh and his family.
A separate application, which is now the application to the Court, was filed on 7 July 2010. It listed “Gulzar Singh” as the first applicant, his wife and two children as the second, third and fourth applicants respectively.
When this matter came on for final hearing on 27 August 2010 Mr M Newman appeared for the applicants. Mr T Reilly of counsel for the first respondent.

Extension of Time

What was immediately apparent was that the application was not made within 35 days of the Tribunal’s decision. Consequently the application was not made within the time limit set out in s.477(1) of the Act. On its face therefore, the application was not competent.
A further difficulty was that, for the purposes of s.477(2)(a), no application had been made for an order specifying why it was necessary in the interests of the administration of justice that the time be extended.
Following a short adjournment, I granted leave for an amended application to be filed in Court. This contained an application for the purposes of s.477(2).
Consideration as to whether such an order extending time should be made requires attention to a number of elements, including the extent of the delay, whether there is any satisfactory explanation for the delay, any prejudice to the respondent, the impact on the applicants, the merits of the grounds of the substantive application, and the exercise of the Court’s discretion.
The stated ground of the application for an extension of time is:
“The applicants were first joined in an application made on 9 June 2010 but at a directions hearing it was ordered the application be severed from the application made by the North Shore Sikh Association Incorporated and this led to its severed application being filed albeit out of time.”
What is immediately clear is that the second, third and fourth applicants were plainly not “joined” in the application made by the Association. Mr “Gulzar” Singh (emphasis added) was not stated as a party to these proceedings.
Mr Newman explained that there had been some “misapprehension” that, as the applications by the Association and Mr Singh were heard at the same time by the Tribunal, and as his application was dependent on the outcome of the Association’s application, that the matters could be initiated in “a rolled up plea”.
It is the case that, once the “misapprehension” was addressed at the first Court date, the applicant responded in a timely manner in making the application, albeit by that time outside the 35 day limit, and with no application for an extension.
I agree with Mr Reilly however that, in circumstances where applicants have legal representation, the explanation for the delay is not satisfactory. But this must be balanced against any prejudice to Mr Singh. There was clearly an intention that he make his application as at June 2010, within time. The consequences for him and his family would be that they would not have permission to remain in Australia, and would be denied the opportunity of judicial scrutiny of the Tribunal’s decision, because of a “misapprehension” by their legal representative, and the mistaken reference to his first name.
I note that the Minister opposed the application for an extension of time. But I cannot see that the Minister would be unduly prejudiced if any such extension were to be granted.
But ultimately, in the circumstances, these elements are not determinative of the outcome of this application. For the reasons that follow, I am not satisfied that it is in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act.

The Originating Application

The application before the Court, as amended, asserts the ground:
“The Tribunal in failing to comply with either s 359A and or s 359AA of the Act and thereby failing to accord the applicant procedural fairness made a jurisdictional error such as to render its decision void.”
Mr Newman referred the Court to the Tribunal’s letter of 21 August 2009 (CB 121). The submission was that the Tribunal’s letter, with s.359A in mind, was deficient in that it simply set out events, such as the fact that both Mr Singh and his family had lodged applications for visas, the Association had lodged an application for employer nomination approval, and that this nomination had been refused.
The argument was that the Tribunal should have provided greater particularity by giving details as to why that nomination approval had been refused, so that Mr Singh would properly address it before the Tribunal in relation to his application.
Mr Newman also submitted that the disadvantage and failure of procedural fairness to the applicant is illustrated by the subsequent letter from the migration agent. In particular (at CB 127):
“… However, should the Tribunal note that there are other matters which may indicate that the Application may be refused, I would kindly request the Tribunal to send a further Invitation with regard to such information and a response could then be made which will address those concerns.”
In essence, the particularity that Mr Newman says should have been put to the applicants in this letter were the issues put to the Association. Namely, that the Association was “not a true religious organisation” and that “the wages did not meet the gazetted threshold”.
The reference quoted above is said to reveal that Mr Singh was therefore still left in a position of not knowing what was put against him: “… other matters which may indicate…”.
I agree with Mr Reilly that what constitutes information for the purposes of s.359A, as explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”), is analogous with s.424A.
Section 359A(1) obliges the Tribunal to give to an applicant, in the way it considers appropriate in the circumstances, clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision under review. As the High Court said (at [17] in SZBYR):
“… The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.”
The relevant issue to be determined from the criteria for the making of the delegate’s decision in relation to Mr Singh and his family was that cl.856.221 required that the applicant has been nominated by an employer, in this case the Association, which has an approved appointment still in effect at the time of decision.
The Association did not have such an approval at any material time. This is the information that the Tribunal gave the applicants in its letter. I agree with Mr Reilly that, with regard to the relevant visa criteria, the information that the Tribunal was compelled to give pursuant to s.359A was that the application by the Association for approved appointment had been refused by the delegate who made the decision under review.
Further, the Tribunal’s letter plainly explained why this information was relevant to the review. That is, that if the Tribunal were to affirm the delegate’s decision in relation to the Association, that is that the appointment was not an approved appointment, then it may find that Mr Singh (and consequently his family) did not meet one of the criteria for the grant of the visa for which he had applied.
I do not accept that the Tribunal was obliged to give further particulars going to how the applicant could address or challenge any possible conclusion in a separate review process about another decision before it. Albeit that his application was dependant on the outcome of that other application, it was for the Association, and not Mr Singh, to address that matter.
I understood the reference to s.359AA in the pleading to be that the Tribunal (with reference to its decision record (at [21]) “repeated” the error asserted above.
However no error is revealed in this regard. As set out above, the ground in the application as pleaded and argued is not made out.
Mr Reilly fairly raised the question of whether it could be said that the Tribunal’s failure to put to Mr Singh and his family, pursuant to s.359A and by extension s.359AA, the information that it had affirmed the delegate’s decision in relation to the application by the Association constituted a breach of its obligation under that section.
In my view there was an obligation on the Tribunal to put such information to Mr Singh and his family pursuant to s.359A for precisely the same reason that it put the other information to them in its earlier letter.
That is, the relevant criterion for the making of the delegate’s decision which was the subject of the review was that there be an employer who had an approved appointment in respect of Mr Singh’s proposed employment. That the Tribunal had decided that the Association did not have such an approval was clearly information arising from an issue in the relevant criteria.
As the date of the hearing before the Tribunal in this matter predated the decision in relation to the Association, the Tribunal could not have used the facility available through s.359AA to meet its obligation pursuant to s.359A (SZMCD v Minsiter for Immigration and Citizenship [2009] FCAFC 46). There is no evidence of any other hearing where this could have been done. Given the timing of the respective decisions it would have needed to have been done on 5 May 2010. Plainly there was no such hearing.
The Tribunal’s decision therefore is affected by jurisdictional error.
Ordinarily such a finding would be a basis for extending the time for the making of the application pursuant to s.477(2) and even granting the relief sought.
However, the relief sought by Mr Singh and his family is discretionary (see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1).
What is abundantly clear is that even if the matter were to be returned to the Tribunal, in circumstances where the Tribunal had affirmed the delegate’s decision in relation to the Association, and I could find no jurisdictional error in that decision (North Shore Sikh Association Incorporated), then in relation to Mr Singh’s visa application the Tribunal would be bound to affirm the delegate’s decision in relation to him, even after attending to its s.359A obligation. (See Barkat v Minister for Immigration & Multicultural Affairs [2000] FCA 510, Hao Jiang v Minister for Immigration & Citizenship [2007] FCA 907 and Wang v Minister for Immigration and Citizenship [2007] FCA 488.)
Nothing that Mr Singh could say, in the circumstances, would alter that outcome. It would only be an exercise in futility in making the orders sought in these circumstances.
In light of this I am not satisfied that it is in the interests of the administration of justice to extend the time for the making of the application. Even if I accept the explanation for the delay and note the impact on Mr Singh and his family, what is left is an originating application, as amended, that on the one hand does not have merit as argued. But in circumstances, on the other hand, where the error in the Tribunal’s decision has nonetheless been fully explored, and given the inevitability of the outcome before the Tribunal, it cannot be said to be in the interests of the administration of justice to extend time for no real purpose or use.

Conclusion

The application made pursuant to s.477(2) to extend time is therefore refused. As a consequence, the application made to the Court, as amended, is dismissed as not competent.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 29 October 2010