Yasin v Minister for Immigration

[2015] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

YASIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1722

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) (Subclass 457) visa – jurisdiction of the Tribunal – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:  

Federal Circuit Court Rules, r.44.12
Migration Act 1958, ss.338(2)(d), 476

Ahmad v Minister for Immigration & Anor [2015] FCCA 1486
Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: MOHAMMED SHAKEEL YASIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1228 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent: Ms B. Rayment
Mills Oakley

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1228 of 2015

MOHAMMED SHAKEEL YASIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 7 April 2015, holding that the Tribunal does not have jurisdiction in respect of an application for review of a Temporary Business Entry (Class UC) (Subclass 457) visa.  The grounds of the application are as follows:

   1. Decision made before hearing.

   2. Application looks genuine looking hard for appeal.

2. The application for review was lodged on 2 February 2014 and on 18 March 2015 the Tribunal wrote to the applicant identifying the potentially dispositive issue as to why the Tribunal did not have jurisdiction in respect of the requirements of s.338(2)(d) and drawing attention to the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881. The Tribunal noted that the applicant was sponsored by MU & Sons Transport Pty Limited and that on 15 January 2014, the delegate refused a nomination application lodged by MU & Sons Transport Pty Limited.

3. On the same date being 2 Frebruary 2015 as the application for review of a Temporary Business Entry (Class UC) (Subclass 457) visa, the applicant also lodged an application for review of the nomination refusal.  I am informed by Ms Rayment, the solicitor for the first respondent, that in essence the timing is such that the sequence of steps is the same in substance as that in the decision of this Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486, in that there was an application for a review of the refusal in respect of the nomination that was pending at the time of the application to review the subject of the Temporary Business Entry (Class UC) (Subclass 457) visa.

4. The requirements of s.338(2)(d)(ii) refer to an application for a review of a decision not to approve the sponsor and for the reasons given in Ahmad, the Tribunal was correct in holding that s.338(2)(d)(ii) had no application to a decision to refuse a nomination. Relevantly, the Tribunal found:

   10. The Tribunal has considered the representative’s submissions but finds that it does not have jurisdiction in the case before it. The Tribunal is bound by the judgment in MIBP v Lee [2014] FCCA 2881. The Tribunal finds that, at the time the application for review was lodged by the applicant on 2 February 2014, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. The nomination by M U & Sons Transport Pty Ltd had been refused. Therefore s.338(2)(d)(i) is not met. At the time the application for review was lodged, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal, for the purpose of s.338(2)(d)(ii).

   11. As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

5. The matter was first returnable before the Court at 9.30 am on 11 June 2015 and the applicant failed to attend.  The applicant provided a medical certificate dated 10 June 2015 from a Dr Amwar Hossain that identified that he was unfit to continue his usual occupation.

6. The medical certificate did not, in fact, identify grounds on which the applicant was unable to attend the Court.  However, the first respondent did not oppose the matter being stood over until 19 June 2015 at 9.30 am for hearing.  The applicant failed to attend Court at 9.30 am this morning when the matter was called.  The applicant sent to the Court a message at 9.23am that his car had broken down and requesting the matter be adjourned until the afternoon and that he would get here as soon as he can.

7. The matter was stood down until 2.30 pm.  The solicitor for the first respondent tendered a file note, which indicates a communication between the solicitor for the first respondent and the applicant at 12.13 pm, in which the applicant maintained that his car had broken down at 8 am, that he could come to Court on Monday and that he was not coming this afternoon.  The applicant was informed by the solicitor for the first respondent that any further adjournment would be opposed, that the first respondent intended to ask the Court to proceed to deal with the matter, to oppose any adjournment and to seek costs.  The capacity of the applicant to have caught a train, bus or alternative transport was also raised.

8. There is no utility in granting an adjournment when the proceedings are clearly doomed to failure.  For the reasons I have given above, these proceedings are clearly doomed to failure.  So far as the grounds in the application are concerned, there is no obligation on the Tribunal to hold a hearing if it lacks jurisdiction and there is no substance in ground 1.  Ground 2 fails to articulate any meaningful jurisdictional error.  For the reasons I have given, the Tribunal was correct in holding it did not have jurisdiction.

9. I am not convinced that the applicant was unable to attend the hearing on the first return date and the explanation advanced, even with the medical certificate, was unsatisfactory.  In these circumstances where the applicant has advanced an explanation about a broken car for the reason of the failure to attend Court today, I find that explanation to be unconvincing and unsatisfactory. The applicant, by responding at 12.13 pm to the solicitor that he was not coming this afternoon, was clearly making a deliberate decision to avoid attending Court.

10. An adjournment in those circumstances is not appropriate. In addition to the grounds I have identified of there being no utility in any adjournment, given that the proceedings are doomed to failure, and that an adjournment will only unnecessarily further increase the costs of the parties and utilise limited Court time, the application fails to disclose any arguable jurisdictional error and this is an appropriate case to dismiss under r.44.12. The application is dismissed under r.44.12.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015