Ved v Minister for Immigration

[2018] FCCA 2827

FEDERAL CIRCUIT COURT OF AUSTRALIA

VED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2827

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: VINAY KUMAR AJAY VED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1152 of 2016

Judgment of: Judge Vasta

Hearing date: 6 September 2018

Date of Last Submission: 6 September 2018

Delivered at: Brisbane

Delivered on: 6 September 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the Respondent: MINTER ELLISON

ORDERS

1. The Application filed on 9 December 2016 be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1152 of 2016

VINAY KUMAR AJAY VED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant, Vinay Kumar Ajay Ved, applied to the Minister’s department for, what is colloquially known as a 457 visa on 22 June 2015.  He identified Palace Enterprise Proprietary Limited as his sponsoring employer.  At the time of the application, the sponsor did not have an approved nomination. 

2. On 23 July 2015, the department wrote to the Applicant giving him an opportunity to comment on that information or to withdraw the application.  The Applicant responded on 18 August 2015.  He said that the sponsor had lodged a new nomination application and attached an acknowledgment by the department of that new nomination. 

3. On 22 December 2015 the department refused the new nomination application.  On 6 April 2016, the department again wrote to the Applicant giving him an opportunity to comment on the information that his sponsor had applied and such application had been refused.  The department offered for the Applicant to withdraw his application.

4. On 4 May 2016 the Applicant, via his migration agent, wrote to the department advising that the sponsor had applied for a review of the refusal of the new nomination application to the Administrative Appeals Tribunal (“the Tribunal”) and therefore he did not wish to withdraw his application and that he intended to appeal any visa refusal to the Tribunal.

5. On 9 May, a delegate of the Minister refused to grant the 457 visa simply because there was not a nomination of an occupation in relation to the Applicant that had been approved.  Because of that, the delegate’s hands were tied and he could do nothing other than to refuse that application. 

6. On 20 May 2016, the Applicant sought review of the delegate’s decision before the Tribunal.  This application for a review to the Tribunal was lodged by a different migration agent.

7. On 5 September 2016, the sponsor withdrew their application for review to the Tribunal so there was simply nothing that was pending as far as any decision as to the approval of that sponsor. 

8. On 13 September 2016, the Tribunal wrote to the Applicant via that new migration agent, advising him that it was unable to make a favourable decision on the information before it simply because there was no approved sponsor for the Applicant’s employment and so therefore an integral part of the criteria for approval of the 457 visa just simply was not there.

9. Ten days later on 23 September 2016, the Applicant returned a completed response to the hearing invitation which indicated that neither he, nor his migration agent would attend the hearing.  The Tribunal made its decision on 3 November 2016 affirming the decision not to grant the Applicant a 457 visa. 

10. The Tribunal identified that the issue in the case was whether the Applicant met the requirement which was that there be an approved nomination by standard business sponsor that has not ceased.  There was simply no evidence before the Tribunal to indicate that there was any approved nomination relating to the Applicant, therefore, the requirements of the 457 visa were simply not met.  The Tribunal affirmed the delegate’s decision.

11. That decision having been made on 3 November 2016 gave the Applicant 35 days in which to make an application for review to this Court.  That 35 day time limit expired on 8 December 2016.  This application was lodged on 9 December 2016.  It is one day outside of the 35 day statutory timeframe. 

12. There needs to be a written application for an extension of time made to this Court to specify why the Applicant considered it was necessary in the interests of the administration of justice to make the order.  This flaw in the application was brought to the attention of the Court on the first return date which was 22 March 2017.  The first return was before Judge Howard. 

13. The Applicant appeared in person and a solicitor appeared for the Minister and the competency of the application was raised and His Honour ordered that by 4.00 pm on 3 July 2017 the Applicant should file and serve any amended application upon which the Applicant intends to rely seeking an extension of time and giving particulars of each ground of review. 

14. His Honour adjourned the application to a date to be fixed.  The date of 3 July 2017 came and went.  His Honour mentioned the matter again on 23 May in Chambers and adjourned the final hearing until 16 August 2018. 

15. As I say, when His Honour gave that final date, the date for the filing had not yet expired.  It has expired by the time I made an order in Chambers on 4 April 2018 taking the matter from Judge Howard and putting it into my docket and adjourning the matter for hearing today at 10.00 am. 

16. The Applicant has failed to appear before the Court today. I gave him a grace period of 20 minutes and he still had not attended. I have decided to proceed under r.13.03C(1)(e). There is no application in writing to extend the time, therefore, the application is incompetent.

17. Even if there had been an extension of time application before me, the merits of the application would have militated against granting an extension of time.  There is no evidence that the Tribunal proceeded unfairly against the Applicant.  The fact pure and simple is that the Applicant did not have an approved sponsor and that was fatal to the application.  There could never have been found by this Court any jurisdictional error made by the Tribunal on its findings but those comments I make as an aside.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:23 October 2018