VASUDEVA v Minister for Immigration

[2017] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

VASUDEVA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 409

Catchwords:
MIGRATION – Visa – where Tribunal affirmed decision of delegate – where applicants elected unsuccessfully to pursue Ministerial intervention – where application for judicial review filed out of time – extension of time – delay – no adequate explanation for delay – merit – no reasonable prospect of success – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 359A, 476, 477(1) & (2)

Migration Regulations 1994 (Cth), cl.187.233 of Schedule 2

Cases cited:

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395
Gallow v Dawson (1990) 93 ALR 479

First Applicant: SHRUTI VASUDEVA

Second Applicant: VISHAL SHARMA

Third Applicant: ANAYA SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 201 of 2016

Judgment of: Judge Heffernan

Hearing date: 7 February 2017

Date of Last Submission: 7 February 2017

Delivered at: Adelaide

Delivered on: 20 March 2017

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Ms C Stokes

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 1 July 2016 is dismissed.

2. The applicants do pay the first respondent’s costs fixed in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 201 of 2016

SHRUTI VASUDEVA

First Applicant

VISHAL SHARMA

Second Applicant

ANAYA SHARMA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time in which to apply for constitutional writs in relation to a decision of the Administrative Appeals Tribunal. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Regional Employer Nomination (Permanent) (Class RN), subclass 187, visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’). The first and second applicants appeared in person. The third applicant is the child of the first and second applicants.

2. This application was filed on 1 July 2016, and is accordingly some 4 months out of time.  The grounds identified in the application to extend time are as follows:

   “1.Financial hardships to make arrangement federal court fee & charges.

   2.Medical reasons for ongoing stress and anxiety.

   3.The hon’ble Minister for immigration refused to accept my application irrationally.”

   (grammar and spelling retained from the original)

3. If successful in the application to extend time, the applicant’s propose the following grounds of application for judicial review:

   “1.The delegate has made findings which appears irrational or incomprehensive.

   2.The merits of application could properly be taken into consideration to determine a legal issue of some importance.

   3.The determination of application has resulted in unfairness to us.”

   (grammar and spelling retained from the original)

4. To support the application, the first applicant has filed an affidavit which annexes a copy of the decision of the Administrative Appeals Tribunal, but adds no other information that might assist in the determination of either the application for an extension of time, or the substantive application.

5. On 26 July 2016, the Registrar made orders giving the applicants leave to file and serve an amended application.  The applicants were also given leave to file such further material, including the transcript of proceedings, if they sought to rely on it.  The applicants were ordered to file an outline of submissions 10 business days prior to the hearing.  No amended application has been received and the applicants did not file and serve any further material or an outline of submissions.

6. At the outset of proceedings, I explained to the applicants that the application for an extension of time would be determined as a preliminary matter.  I informed the applicants that one of the things that would be relevant to that application would be whether there was any merit to the proposed application for judicial review.  In doing so, I explained in general terms the nature of judicial review and the types of matters commonly considered by courts when deciding if an error of the relevant kind has been made by the Tribunal.

7. It was immediately apparent when the hearing commenced that the applicants had information they wished to convey to the Court about why they delayed in lodging the application for judicial review.  After hearing brief submissions from the first applicant, I indicated that I was prepared to hear some brief evidence from either the first or second applicant on that matter.  Counsel for the first respondent did not oppose that course.

8. The second applicant then gave some brief evidence on oath.  He told the Court that after receiving the decision from the Tribunal, he and the first applicant, having taken advice, decided to make an application for Ministerial intervention.  That request was refused.  The second applicant regarded that as a tactical error on the part of their legal advisor.  He said that he did not consider making an application for judicial review as well as applying to the Minister.  He and his wife found out, on approximately 26 June 2016, that the request for Ministerial intervention had been refused.  After discussing it with their legal advisor, they were told that the only option left for them was to make an application to this Court.

9. Mr Sharma said he and his wife were under considerable financial stress during the process of applying for the visas.  He currently has a permanent part-time job, but his wife is unable to work.  They incurred very significant costs in paying for the migration agent.

10. With respect to the question of medical reasons and anxiety, which the applicants submit would support an extension of time, he said that he and his wife had been under too much stress.  This had been exacerbated by the fact that he had had an accident in his car.  He said that he did not know how the refusal of their application could be his fault.  His wife was always under stress.  For both of them this is exacerbated when they think of their daughter, who is now 5 years of age.  He and his wife have been in Australia since 2008 and he regards the refusal of the Minister to intervene as being irrational.  He could not understand why the Minister would not accede to their request for intervention.  He emphasised that the Minister had taken several months to respond during which time he and his wife were required to keep paying fees to the migration agent.  It seems that he and his wife had received different advice from different migration agents, and the situation was confusing for them. 

11. The second applicant was cross-examined about ground one of the grounds for an extension of time.  He said that his cousin had essentially handled all of the financial aspects.  It was his cousin who paid various fees, and even paid petrol money on their behalf.  They themselves did not have enough money, and they relied on his cousin and relatives to pay for things like groceries.  He admitted that enquiries were made with respect to the Court fees, and he was told that he could get a waiver of fees.  He did not say when he received that advice.

12. There is no reason to doubt the evidence of the second applicant that he and his wife have found themselves under considerable stress.  The effect of his evidence was essentially that they had both been worn down and exhausted by the process of applying for the visa, the rejection, and the Tribunal process. 

13. No evidence from any medical professionals or psychologists was submitted to support the submission that medical reasons and anxiety experienced by them played a role in the lateness of this application.  As I have said, I accept the evidence of the second applicant that both he and his wife are under considerable stress. 

14. She relied on the evidence of the second applicant.

Background to visa applications and Tribunal process

1. The relevant background to the applications for visas and the Tribunal process has been summarised by the first respondent in its Outline of Submissions.  I do not understand the contents of that summary to be disputed by the applicants and accordingly, I have paraphrased it below.

2. The first applicant is the primary applicant, having applied for the visa on 2 September 2014.  The application was made on the basis of her proposed employment in the nominated position of Café or Restaurant Manager.  The nominating employer was Trehan & Sharmas Pty Ltd (‘the employer’).  Her application listed the second and third applicants as dependent.[1]

   [1]     Court Book (‘CB’) pp 10 – 40.

3. A delegate of the Minister refused the nomination lodged by the employer on 13 January 2015.[2]  On the day that was made, the Department wrote to the first applicant advising her of the outcome of the nomination.  She was advised that this meant her visa application could not be approved.  She was informed that there were two options available to her, namely, withdrawing the visa application, or to contact the Department about the application.[3]  The letter commenced by inviting the applicant to comment on adverse information for her application.  The letter informed the first applicant that if she did not withdraw the application, and did not respond to the letter within 28 days, then it would be refused.  The letter also informed her that should she withdraw her application, the bridging visa would cease in 28 calendar days from the date that she was advised that the Department had received her request to withdraw the application.

   [2]     Delegate’s Notice of Decision, CB pp 154 – 161.

   [3]     CB pp 107 – 110.

4. On 10 February 2015, the migration agent for the applicants wrote to the Department requesting a further 14 days in which to consider the letter sent to the applicant.  His email also indicated that the employer had lodged an appeal against the nomination refusal.  It advised that the applicants were still in the process of deciding whether or not to accept the refusal and withdraw the visa application.[4]  The Department responded to that email the following day saying that it was unable to grant a further 14 days and noting that a response was due on 10 February 2015.

   [4]     CB p 112.

5. Apart from the correspondence referred to above, no response was made to the Department on behalf of the applicants.

6. A delegate of the Minister refused the visa application on 23 February 2015. The basis for refusal was that the first applicant did not meet cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). This is because the nomination had not been approved.[5]  It followed, that as the primary applicant had been unsuccessful, the second and third applicants were also unsuccessful.

   [5]     CB pp 127 – 129.

7. The applicants applied for a review of the delegate’s decision to the Migration Review Tribunal.  That application was made on 13 March 2015.

8. The Tribunal wrote to the applicants on 7 December 2015 inviting them to comment on, or respond, to information that it considered would be the reason or part of the reason for affirming the decision under review.  That information was that the employer’s application to the Tribunal to review the delegate’s refusal to approve the nominated position had been unsuccessful.  This meant that the employer nomination was not approved.[6] That was provided to the migration agent for the applicants on 7 December 2015. The email to the applicants’ migration agent had attached both letters advising him that a s.359A response was required by 21 December 2015.

   [6]     CB p 145.

9. The Tribunal did not receive a response from the applicants or their representatives.

10. As no response was received by the applicants, the Tribunal proceeded to make a decision on the review without taking any further action to obtain information from the applicants.  As no response had been received by the applicants, the Tribunal was not required to invite them to appear before it.  The Tribunal affirmed the delegate’s decision on 23 December 2015.  The applicants were notified of that decision by letter dated 4 January 2016.[7]

    [7]     CB pp 147 – 153.

11. On 19 January 2016, the applicants sought Ministerial intervention.  That was refused on 26 May 2016.[8]

    [8]     CB pp 134 – 135.

12. As I have noted above, the applicants applied for an extension of time in which to make this application on 1 July 2016.  The application was filed 4 months and 23 days late.

Tribunal decision

1. The Tribunal correctly noted the nature of the visa being sought by the applicants. It noted the requirements of cl.187.233 of Schedule 2 to the Regulations. That clause was a time of decision criteria. In particular, cl.187.233(3) required that in order for the visas to be granted, the Minister had to have approved the nomination. The Tribunal found that this proved to be fatal to the application for review and noted that it had already made a decision to affirm the nomination decision. For that reason, the applicants could not meet cl.187.233(3).[9]

   [9] CB p 153 at [13].

2. The Tribunal correctly noted that no other claims had been made with respect to other streams of the relevant visa.

Application for an extension of time

1. Pursuant to s.476 of the Act, an application to this Court for judicial review of a migration decision made by the Tribunal must be made within 35 days of the migration decision.[10]

   [10] Section 477(1) of Migration Act.

2. Pursuant to s.477(2), I have discretion to extend that period in circumstances where a written application has been made to the Court specifying why the applicants say it is necessary in the interests of the administration of justice to make the order, and if I am satisfied that it is necessary in the interests of the administration of justice to make the order.[11]  The applicants have made a written application requesting an extension of time.  The operative consideration here is whether the Court is satisfied that it is necessary, in the interests of the administration of justice, to make the order.

   [11] Section 477(2) of Migration Act.

3. Section 477 of the Act does not delineate the type of matters of which the Court must be satisfied when considering whether extending time is “necessary in the interests of the administration of justice”.  It is necessary that the matters I take into account, and to which I give weight, must logically and sensibly relate to the interests of the administration of justice.[12]  Matters which have been taken into account by Courts in past applications of this kind include the reasons for any delay, the length of the delay, whether the respondent has been prejudiced by the delay, the merits of the proposed application for review, and the effect on the applicants if time is not extended.  Those factors appear to be the relevant considerations in this matter and I will consider each of them in turn.

Delay

[12]    SZRIQ v Federal Magistrates Court of Australia [2013] 139 ALD 252.

1. The first respondent submitted, in its written submissions, that the reasons advanced for the delay in the written application were not compelling.  In my view, it is not necessary for an applicant to demonstrate reasons that amount to a compelling explanation for a delay.  The relevant question is whether there is an adequate or acceptable explanation for the delay in all of the circumstances.[13]

   [13]    MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at 3, citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348.

2. In any event, the submission of the first respondent, having had the benefit of hearing the evidence of the second applicant, was that the explanations advanced did not amount to an adequate explanation. I accept that submission. The applicants were legally represented at the time the Tribunal decision was made. On the evidence of the second applicant, they accepted the advice given to them that the most appropriate course was to request the intervention of the Minister for Immigration and Border Protection to substitute the decision of the Tribunal with a more favourable decision pursuant to s.351 of the Act.

3. On the evidence of the second applicant, a conscious decision was made electing to seek Ministerial intervention.  In MZZYC, Davies J had the following to say about such an election:

   “I am not satisfied that the Applicant has offered a satisfactory explanation for his failure to appeal within the prescribed time. The request for ministerial intervention was an alternative course of action taken by him in lieu of pursuing his appeal rights and a conscious decision on his part not to pursue appeal rights. The Applicant chose not to pursue appeal rights by reason of changing circumstances in his country of origin which he considered, rightly or wrongly, meant that there was no place in Pakistan to which he could reasonably relocate. His belief was that his circumstances, in consequence, fitted within the guidelines for ministerial intervention.  It was only after the request for ministerial intervention was refused that he took steps to seek to appeal the decision of the FCC. …”[14]

   [14]    MZZYC op cit at [4].

4. In that matter, it was submitted for the applicant that he had not “rested on his rights” and that his request for Ministerial intervention in fact evinced an intention to contest the finality of the decision.  The applicant in that case relied on Hunter Valley Developments Pty Ltd for that proposition.  This was rejected by Davies J, who found that pursuit of the alternative avenue was not consistent with an intent to pursue appeal rights and contest the correctness of the decision.  In reaching that conclusion, I respectfully note that the Court in MZZYC was following what has been described as “a long line of authority”.[15]

   [15]    Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395 at 7 per Weinberg J.

5. I do not regard the fact that the applicants elected to pursue to Ministerial intervention as an adequate explanation for the delay in all of the circumstances.

6. As to the evidence of the second applicant, relating to medical reasons and anxiety, I have already indicated that I accept that the period of time over which the applicant had been involved in the visa process has been very stressful for them.  That was no doubt especially so when they were advised that the Tribunal had affirmed the decision of the delegate.  However, whatever subjective level of stress the applicants regarded themselves as experiencing, they were clearly not debilitated by having learnt of the Tribunal decision.  They conferred with their legal advisor, took advice, and accepted it.  It was that which led to the request for Ministerial intervention.  Further, whilst I also accept the evidence of the second applicant that he and his wife have been under financial stress in recent times, he acknowledged that he had been told that he could get a waiver of Court fees.  Whilst he did not say in evidence when he first learnt this, it was always open to both applicants to make enquiries in this regard.

7. With respect to the third ground of application for extension of time, namely, that the Minister’s refusal to intervene was irrational, I am not satisfied that this amounts to an adequate explanation for the delay in filing this application for judicial review.  That ground simply underscores the fact that the applicants elected to take a course that did not engage the jurisdiction of this Court.  It complains of the outcome of the process for which the applicants opted but does not adequately explain the delay.

1. I have considered the various aspect of the applicants’ explanation for the delay cumulatively and am not satisfied that an adequate explanation has been provided.

The length of the delay

1. As I have noted, the application was filed 4 months and 23 days out of time.  The applicants had 35 days in which to make the application.  The time limit imposed by the legislation is of itself a relevant matter because it represents the intention of the legislature to cater for the orderly administration of justice.  In that context, the period of delay is significant.  As McHugh J observed in Gallow v Dawson:

   “A case would need to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.”[16]

Prejudice to the respondent

[16]    Gallow v Dawson (1990) 93 ALR 479 at 81.

1. The first respondent does not submit that any prejudice has been occasioned to it by the delay.  That concession is relevant but not dispositive of the question as to whether it is in the interests of the administration of justice to permit an extension of time. Given the length of the delay, I give this factor limited weight.

The effect on the applicants if time is not extended

1. If I do not permit an extension of time in which to make this application, the effect on the applicants is likely to be very significant.  They will be required to leave this country, either voluntarily or by the Department making arrangements for their removal.  As both applicants said to the Court, they have a young daughter who has never lived in India and does not speak the language.  Schooling for the third applicant is likely in those circumstances to require a very difficult adjustment.  The applicants submitted that their future in India is uncertain.

The merits of the proposed application for review

1. It is not necessary that the applicants demonstrate that they would ultimately be successful in the substantive application.  For the purpose of an application to extend time, it is necessary that they demonstrate that the application has some reasonable prospects of success. 

2. The effect of her submissions was that it would be in the interests of the administration of justice to grant an extension of time because she and her husband have been in Australia for 8 – 9 years, and that removal from this country would be very hard for their daughter, particularly with respect to her schooling.  Their daughter is not able to speak either Punjabi or Hindi, although she understands some of those languages.  With respect to the merit of the proposed application, when asked whether there was any specific error of law on which the applicants relied, she was not able to identify an error and said that the applicants simply wanted some justice.  She laid the blame for the nomination refusal on the employer.  For that reason, they elected to go to the Minister.  The effect of her submission was that they chose to go to the Minister to get justice, because they thought that he would listen to them. 

3. She told the Court that they had incurred expenses of approximately $25,000 during the visa process, money which they had to borrow from their family and they would never be in a position to repay that money if they were required to return to India.  The first applicant said that it was unfair that her employer had done the wrong thing by them. She repeated that the main reason for her application was her concern for the impact of a removal on her daughter.  Neither she or her husband had any future in India.  Whilst the first applicant conceded that the applicants and the employer were both ultimately represented by the same migration agent and legal advisor, she said that this was a requirement of her employer.  She told the Court that the applicants had previously had a good lawyer but they were required to change at the insistence of the nominated employer.  It was for that reason that they engaged the services of the migration agent.

4. I am not satisfied that the grounds for review proposed by the applicants have a reasonable prospect of success.  This is because, as the Tribunal identified, the applicant could not satisfy one of the mandatory criteria.  The nomination having been unsuccessful, it was not open to the Tribunal to do anything other than affirm the decision of the delegate. 

5. Further, it does not appear to me that the applicants were denied procedural fairness by the manner in which the Tribunal proceeded.  As the first respondent has submitted, the cascading effect of the legislation permitted the Tribunal to proceed to a determination without conducting a hearing at which the applicants were invited to attend to make submissions and present arguments.  It could not be said that the decision of the Tribunal was unreasonable in the relevant sense, irrational, illogical, or tainted by an error of law.

6. Having considered all of the above matters cumulatively, and taking into account the particular circumstances of the applicants and the proposed application, I am not satisfied that it is in the interests of the administration of justice to extend the time in which to make the application for judicial review.  Even had the application been made within time, it would not have had reasonable prospects of success for the reasons that I have identified.

7. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  20 March 2017