YOSHINO v Minister for Immigration

[2014] FCCA 1976

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOSHINO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1976

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 338(2)(d)

Migration Regulations 1994 (Cth), reg.1.03
Schedule 2, cl.457.223(4)

Applicant: RYO YOSHINO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2937 of 2013

Judgment of: Judge Manousaridis

Hearing date: 19 August 2014

Delivered at: Sydney

Delivered on: 29 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr N Kelvin

Kelvin Law

Solicitors for the Respondents:

Ms A Carr

DLA Piper Australia

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2937 of 2013

RYO YOSHINO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an extension of time to file an application for review of a decision of the second respondent (Tribunal). The Tribunal made that decision in response to a purported application for review of a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Subclass 457 – Temporary Work (Skilled) visa (457 visa). The Tribunal decided it had no jurisdiction to review the delegate’s decision.

Background

1. One criterion the applicant had to satisfy at the time of the delegate’s decision was that specified in clause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant had to demonstrate that a nomination of an occupation in relation to the applicant had been approved under s.140GB of the Migration Act 1958 (Cth) (Act), a person who “was a standard business sponsor at the time the nomination was approved” made the nomination, and approval of the nomination had not ceased. The expression “standard business sponsor” is defined in reg.1.03 of the Regulations as a person who is an “approved sponsor” and “is approved as a sponsor in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act”.

2. In his application for the 457 visa, the applicant stated that his sponsoring employer was Underground Coal Gasification Development Pty Limited (UCGD). On 29 April 2013, however, a delegate of the Minister sent by email a letter to the applicant which stated that UCGD did not have an approved or pending sponsorship agreement and nomination, and the applicant needed to contact his employer directly. It appears that before 29 April 2013 UCGD applied to be an approved sponsor, but that application was refused on 29 April 2013.

3. On 22 May 2013 the applicant’s agent sent an email to the delegate requesting that the delegate defer processing the applicant’s application for the 457 visa until the Department of Immigration and Border Protection determined a further application UCGD had made to be approved as a sponsor. That application was made on 21 May 2013. There is no evidence the migration agent received any response to that request. However, on 6 August 2013, UCGD’s further application for approval as a sponsor was refused.

4. On 6 August 2013, the delegate refused the application for a 457 visa on the ground that the applicant had not been nominated by a person who was a standard business sponsor, and hence, the applicant did not satisfy clause 457.223(4) of Schedule 2 to the Regulations.

Tribunal’s decision

1. On 17 October 2013 the Tribunal decided it did not have jurisdiction to review the delegate’s decision. The Tribunal found that the delegate’s decision was not an “MRT-reviewable decision” within the meaning of s.338(2) of the Act. That is so because the decision was one that did not satisfy paragraph (d). Paragraph (d) provides:

   Where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

The application for review and extension of time and course of proceedings

1. On 26 November 2013 the applicant filed an application with this Court seeking an order that the decision of the Tribunal be quashed. The only ground stated is as follows:

   The applicant is entitled to a Skilled (Provisional)(Class VC) in accordance with the relevant provisions of the Migration act [sic] and Regulations.

2. The application also seeks an order for an extension of time to file the application. That extension of time is sought because the application was filed more than thirty five days after the Tribunal made its decision. The ground stated in the application for an extension of time is that the applicant had “[f]inancial difficulties to get lawyer”.

3. At the hearing before me on 19 August 2014, the applicant, through his lawyer applied for an adjournment of three weeks. I indicated that I would not grant an adjournment unless I was satisfied there would be some utility in granting the adjournment. After I granted a short adjournment to give the applicant’s lawyer an opportunity to obtain instructions, I was informed that the applicant desired time to raise a new ground of review. The ground the applicant wished to raise was that the Tribunal erred in its decision because it failed to consider that the applicant’s not having an approved sponsor was outside the applicant’s control.

4. After I invited submissions from the parties I indicated that I would reserve my judgment on the application for an adjournment, but would consider that application having regard to the proposed ground of review the applicant’s lawyer indicated the applicant wished to raise. I also indicated to the parties that if I decide against granting an adjournment, I would also determine the application for an extension of time that is currently before the Court.

Application for an adjournment

1. Whether or not a court will grant an adjournment is a matter for the discretion of the court. One important factor is whether there is any utility or possible utility in granting the adjournment. In the case before me, the only asserted utility was to give the applicant an opportunity to amend his application to include as a ground of review the failure by the Tribunal to consider that the applicant’s not having an approved sponsor was outside the applicant’s control.

2. In my opinion, there would be no utility in granting the applicant an adjournment for the purpose of adding this ground of review, because to do so would be futile. The proposed ground has no merit because whether or not it is within the control of an applicant for a 457 visa to have his sponsor become an approved sponsor is not a matter that is relevant to the satisfaction of the criterion specified in clause 457.223(4) of Schedule 2 to the Regulations. The criterion simply requires that there be an approved sponsor.

3. Thus, if an adjournment is granted to the applicant to include this additional ground for review, the application for an extension of time is bound to fail. That is so because when determining whether it is necessary in the interests of justice to extend the time for filing an application for review in this Court, the most important factor to consider is whether the application has merit. If the application has no merit, the applicant will suffer no prejudice if an extension is not granted, because the application is bound to fail; and to order the extension of time would prejudice the Minister and the public at large because it will result in the consumption of resources in defending a claim that is bound to fail.

4. I do not propose, therefore, to grant the applicant the adjournment he has sought, and I will now consider the application for an extension of time.

Application for extension of time

1. The ground of review stated in the application has no merit. The ground does not even address the decision the Tribunal made or the grounds on which the Tribunal made the decision. The application simply asserts that the applicant is entitled to a “Skilled (Provisional)(Class VC) Visa”. Further, the ground appears to invite this Court to determine whether the applicant is entitled to the “Skilled (Provisional)(Class VC) Visa”. But the Court does not have jurisdiction to consider that question.

2. As I note above, the lack of any merit in the application impacts on the other factors the Court must take into account when considering whether to order an extension of time. The applicant will suffer no prejudice if an extension is not granted because the applicant’s case is bound to fail. And the Minister and the public will suffer prejudice if an extension of time is granted because resources will be expended in the Minister resisting a claim that is bound to fail.

Disposition

1. I propose to order that the application for an extension of time be dismissed with costs.

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

Associate: 

Date:  29 August 2014