Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3264

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3264

File number(s):

BRG 397 of 2020

Judgment of:

JUDGE VASTA

Date of judgment:

19 November 2020

Catchwords:

MIGRATION – review of administrative appeals decision – show cause hearing – cause not shown – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth) r.44.12

Number of paragraphs:

29

Date of last submission/s:

19 November 2020

Date of hearing:

19 November 2020

Place:

Brisbane

Solicitor for the Applicants:

The Applicants appearing on their own behalf

Solicitor for the First Respondent:

Ms Cody Allen

ORDERS

BRG397 of 2020

BETWEEN:

DUC NANG VU

First Applicant

THI HUONG TRAN

Second Applicant

DUC NANG VU AS LITIGATION GUARDIAN FOR DUC THANG VU

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.That the Applicant’s oral application for an adjournment of these proceedings is refused.

2.That pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the Application filed 16 July 2020 is dismissed.

3.That the First Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 19 June 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, and his two dependents, regional employer nomination visas.  On 16 July 2020, the Applicant asked this Court to review that decision. 

2. The background to the decision is this:  the Applicant is a 47 year old citizen of Vietnam.  The other Applicants are his 32 year old wife and his eight year old son.  Their applications rise or fall upon the application of the main Applicant.  The Applicant’s application was based on the situation where he was applying to work as a retail manager for JS Park Enterprise Pty Ltd.

3. It is a requirement for the visa that JS Park Enterprise be an approved nominator; that is, that the department had approved JS Park Enterprise as being an employer who could nominate for this particular position.  It turns out that JS Park Enterprise was not an approved nominator. 

4. Because the Applicant did not have an approved nominator, his application was doomed to fail. 

5. The AAT hearing was held on 20 May 2020.  The AAT allowed the Applicant to make the submissions that he wished to make.  In the hearing, the Applicant attended with his representative.  Straightaway the Applicant, through his migration agent, asked for the matter to be adjourned because the migration agent had only just been engaged by the Applicant. 

6. The Tribunal member did not grant the adjournment but said it would think about the adjournment later on but wished to proceed with the hearing.  The Applicant said that it was unfair that the employer nomination had been refused in the first place.  The Applicant said that the nominator did not have a chance to provide more financial information to the department or Tribunal.

7. The Tribunal explained that the only issue before it was whether there was an approved nomination, not why there might not be an approved nomination.  The Tribunal told the Applicant that the nominator was deregistered on 2 September 2019 and, therefore, could not be an approved nominator.  The Applicant complained that he was not allowed to go to the February 2020 hearing where the Tribunal did not allow the application of the nominator.  The Tribunal explained to the Applicant that there was no hearing because the Tribunal had no jurisdiction to consider the nominator’s application because the nominator was deregistered.

8. The Tribunal gave the Applicant a 15-minute adjournment to allow him to consider his position.  The Applicant, upon resumption, complained that his former migration agent had not kept him updated.  Because of this he said that he had not had the chance to understand the position he was in, and he needed time to evaluate his position. 

9. The Tribunal said that, even though there would be very little utility in granting additional time because the circumstances would not change, they, nevertheless, acceded to a 14-day adjournment where the Applicant could put in some further written submissions.

10. The Tribunal gave the Applicant until 8 June 2020 to put in more submissions.  On 17 June 2020, the Applicant’s representative did put in a written submission.  Relevantly, the submission said this at page 110 of the Court Book: 

    We understand that the Tribunal has stated there is no jurisdiction to review the Applicant’s employer’s application for review for the refusal of the nomination application because the employer is now deregistered.  Therefore, the Application for Review of the decision to refuse the grant of a Regional Sponsored Migration Scheme (subclass 187) visa may have to be affirmed because there is no approved nomination.

11. The submission then went on to talk about some sympathetic circumstances of the Applicant.  These circumstances were the time that it took for the delegate, and then for the AAT, to review the decisions and the fact that the wife and son had now become used to Australia and had a life in Australia. 

12. The submission then asked that the Tribunal refer the case to the Minister for the exercise of ministerial discretion.  The Tribunal did not propose to recommend the matter to the Minister but said that it remained open to the Applicants to make a request if they so wished to do so. 

13. The Tribunal affirmed the decision because the Applicant did not have an approved nominator. 

14. Ground 1 of the application is this: 

    Before the hearing, the applicant representative asked for hearing adjournment because it was a new representative but the tribunal deny it.  In the hearing, the applicant representative also asked for more time, but the tribunal only gave 14 days adjournment. 

15. With respect to this ground, there is no merit in it.  For there to be a jurisdictional error the Tribunal must have committed a jurisdictional error in not allowing the adjournment.

16. The Applicant must show that it was unreasonable for the Tribunal not to adjourn the matter.  The Applicant has not been able to show why it was unreasonable for the Tribunal not to give the adjournment.  The adjournment could not fix the flaw in the application, that being that the Applicant did not have an approved nominator. 

17. Whilst it was that the Tribunal said that they would give a 14-day adjournment, it actually gave an adjournment of one month.  It was on 17 June 2020, four weeks after the adjournment, that the Applicant submitted his submissions.  The Tribunal gave its decision two days later.

18. The Applicant was given the opportunity to put what it was that he wanted before the Tribunal and he did so. 

19. Ground 2 reads as follows:

    The applicant discussed with the tribunal about the situation in his past because the delegate of the Minister for Home Affairs refuse the employer nomination based on financial paperwork without asking for more documents, even though it took 2 years to process the file. (24 March 2016 the application was lodged and 28 March 2018 the Employer Nomination was refused.)  In the tribunal it was refused again because the employer was deregistered but it took 2 years for the tribunal to open the file.  If the tribunal start the file sooner then the employer was not deregistered and the applicant may have been get the visa granted. 

20. The Applicant appeared before me today, and he has been assisted by an interpreter.  He asked for an adjournment because he wanted to get legal help, but the application to this Court was made in July 2020, and the matter has been set down now for a few months.  The Applicant has not shown to the Court what efforts he has made between his filing of the application and today to try and get legal assistance.  It is trite to say that there is no right to legal representation and no right to an adjournment to get legal representation. 

21. There is no right for an Applicant to have legal representation, and there has not been a sufficiently cogent argument put forward to me as to what benefit to the cause of justice there would be in allowing an adjournment for the Applicant to get legal representation.  I refused the adjournment and continued on with the hearing. 

22. This matter is a show cause hearing. Given the grounds of the application, and the facts as I have already relayed them, the Applicant must show to me that he has an arguable case for me to allow the matter to proceed any further.

23. I asked the Applicant what his arguments were, and he reiterated the second ground of his application.  He said to me that the AAT reached their decision without proper examination of why the Minister refused the visa.  He said that the decision did not factually consider the relationship, his application and the failed nomination had between them.  He said that, in his opinion, the AAT did not follow the correct legal procedure.  He said that the AAT did not look at the whole of his circumstances.  He said that he had put in the application two years before it was looked at, and then it took the AAT two more years to look at his review. He said that four years of waiting was too long.  He said that he did not receive any requests for more information. 

24. I should say that, it would appear from the Court Book, there were invitations for the Applicant to give more information to the Tribunal, however, I note that this submission may correlate with what he said to the Tribunal about his former representative.  He then reiterated part of ground 1 of his application that the AAT did not allow him enough time to prepare and enough time to get legal help. 

25. He said, in the end, that the AAT simply did not have enough evidence to make the decision that they did.  The problem with his submissions are that they are a plea for sympathy. 

26. His submissions really boiled down to a disagreement with the Tribunal decision.  The evidence was clear; and that was that there simply was no employer approved nominator.  The Tribunal was quite correct when it said that it does not matter why there is no approved nomination.  It is a matter of whether there is a nomination or there is not a nomination.  If there is no nomination then it does not matter how much consideration is given or how much time is allowed or how much “fairness” is afforded in the process.  The fact remains that if there is no nomination, the Applicant simply cannot meet the criteria to get the visa. 

27. I realise that this is very distressing for the Applicant.  For the past four years, or even longer, he has set up a life for himself and his family in Australia. But no matter how much sympathy I might have for an Applicant, I cannot allow that sympathy to stop me from administering the law. 

28. The applicant simply does not have an arguable case. 

29. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the Applicant has not shown cause, and, therefore, I dismiss the application with costs in the sum of $3,737. 

I certify that the preceding twenty-nine-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       4 December 2020.