Haider v Minister for Immigration, Citizenship and Multicultural Affairs

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".
2. The applicant's application for an extension of time and leave to appeal be dismissed.
3. The applicant pay the first respondent's costs fixed in the sum of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for extension of time and leave to appeal, which has been filed under r 35.14 of the Federal Court Rules 2011 (Cth) (the FC Rules). The application is made in the following circumstances. 2 The applicant, Syed Zeshan Haider, commenced a proceeding in the then Federal Circuit Court of Australia (the Federal Circuit Court) seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) in respect of the refusal of his application for a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa application was made on the basis of the applicant's nomination, by Namitha Nakul Pty Ltd (the sponsor), for the occupation of "cook". 3 A delegate of the first respondent (then the Minister for Immigration and Border Protection but now designated as the Minister for Immigration, Citizenship and Multicultural Affairs) (the Minister) refused the visa application because the applicant did not provide a skills assessment for that occupation, as he was required to do. As a result, he did not satisfy the requirements of cl 457.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations), as applicable to him. 4 The applicant was informed of the refusal by a letter dated 16 August 2018 from the Department of Home Affairs. The letter told the applicant that he was entitled to apply to the Tribunal for merits review of the delegate's decision. The letter said: An application for review of this decision must be given to the AAT within 21 calendar days after the date on which you are taken to have received this letter. This review period is prescribed in law and an application for merits review cannot be accepted after that date. 5 The period of 21 days referred to in the letter expired on 6 September 2018. 6 On 4 September 2018, the sponsor lodged, online, an application to the Tribunal to review a nomination application refusal. However, there had been no such refusal. What had been refused was the applicant's visa application. 7 This appears to have been a mistake by the applicant's migration agent. Realising that a mistake had been made, the migration agent sent a communication to the Tribunal on 7 September 2018, which (leaving aside formalities) said: We are representing our client Syed Zeshan Haider for his review application. Unfortunately my staff lodged the application for review by selecting the nomination application refusal however nomination application has been approved by the department and only the 457 visa application has been refused and we suppose to lodge the review for 457 visa application and attached the correct refusal letter with the online application. After talking to the staff of the AAT they suggested us to lodge the form M1 which we are enclosing, please make the necessary amendment in the application lodged on 04/09/2018 with online lodgement number 20180904-33378 and consider the application for review for 457 Visa refusal. We are enclosing the lodged online application, Tax Receipt and the 457 visa refusal Decision. Please do not hesitate to contact us should you require any further information. 8 In conformity with that communication, the migration agent lodged an application with the Tribunal to review the delegate's decision to refuse his visa application. However, this lodgement was outside the prescribed period for seeking a review. 9 In subsequent submissions to the Tribunal, the applicant's migration agent contended that the applicant had lodged an application with the Tribunal on 4 September 2018 and that the further lodgement on 7 September 2018 should be treated by the Tribunal as an "amendment" to the earlier application. As the migration agent put it: The nomination associated with the 457 visa has been approved by Department of Human Affairs on dated 19/10/2018 (which is enclosed) and hence question of lodgement of review of nomination application does not arise and that has been lodged due to error which has been rectified and corrected by way of amendment dated 07/09/2018, hence a valid application. (As in original.) 10 The Tribunal was not persuaded. It said: 9. The Tribunal has considered the representative's submissions. The Tribunal acknowledges the representative's claim that a mistake was made in the lodgement of an incorrect application on the 4 September 2018; however the Tribunal has no power in the circumstances of this case to accept that a valid application for review was made by the applicant within the prescribed period. 10. The Tribunal has considered the M1 Application for review, online lodgement made on 4 September 2016 [sic]. It clearly states that the review applicant is the sponsor Namitha Nakul Pty Ltd. Details relating to the sponsor including the Director's name and business address have been provided. No details of the visa applicant have been supplied. In response to the question 'Capacity to apply for review' it states sponsor or nominator In the Tribunal's view these responses indicate the intention of the sponsor to lodge this application and do not suggest that it was the visa applicant who intended to apply for review on that day. The application for review clearly indicates that it is the sponsor applying for review. 11. The corrected application for review (Form M1) by the visa applicant was lodged by the representative on 7 September 2018, which was not within the prescribed period of 21 days. Having considered the representative's submission and in regard to procedural fairness and the principles of natural justice, in this instance the Tribunal has no discretion in these matters. There is no provision in the legislation to substitute the applicant who made the application for review in circumstances where the request was made outside the prescribed period. 12. As the decision that is the subject of the review application is a decision covered by s.338(2), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was made by the sponsor. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter. 11 The Tribunal's reasoning seems to be that the applicant did not make a valid application for review within the prescribed period. The application made on 4 September 2018, which was within time, was not made by the applicant, but by the sponsor. The Tribunal appears to have treated the application as a Part 5-reviewable decision under s 338(2) of the Act, but noted that the application was not made by a non-citizen. The application made on 7 September 2018, although made by the applicant as a non-citizen, was not made within the prescribed time. 12 As I have said, the applicant commenced a proceeding in the Federal Circuit Court seeking judicial review of the Tribunal's decision. However, the proceeding was dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) for non-appearance by the applicant at the first court date. The applicant sought to have the proceeding re-instated under r 16.05(2)(a) of the FCC Rules. 13 When the re-instatement application came before the primary judge, her Honour noted that only one of the eight grounds of review which the applicant wished to raise in the judicial review application, Ground 8, was a substantive ground of review: The Tribunal failed to consider that an amendment application has been lodged subsequent to initial application and I have not initiated the new application. The Tribunal considered the amended application to be a new application. 14 The primary judge accepted the applicant's explanation for not appearing at the first court date and reasoned that the success of the re-instatement application depended on the applicant's prospects of success on Ground 8. 15 The primary judge noted the applicant's submission that the application for review made to the Tribunal on 7 September 2018 had a sufficient nexus to the application for review made to the Tribunal on 4 September 2018 to render the latter a "clarification" of the former, and not a second, new application. However, the primary judge did not accept that submission. Her Honour concluded that the case before her was distinguishable from Le v Minister for Immigration and Border Protection [2019] FCA 427; 104 ALD 267 (Le) (on which the applicant relied) and that the Tribunal correctly found that it did not have jurisdiction to review the delegate's decision. Therefore, on her Honour's assessment, Ground 8 had no reasonable prospects of success, with the result that the application for re-instatement should be dismissed. The primary judge made orders accordingly.