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

1. The applications for an extension of time and leave to appeal filed 6 December 2021 are dismissed.
2. The applicants are to pay the respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J: 1 Rafiqul Hasan is a citizen of Bangladesh who arrived in Australia in 2009 and Shahanaj Parvin Nipa, second applicant, is his wife. It is convenient in these reasons to simply refer to Mr Hasan as the applicant. Before me is an application for an extension of time and leave to appeal orders made in the Federal Circuit and Family Court of Australia (Division 2) on 12 November 2021 (primary decision), which dismissed an application to reinstate a matter before that Court that was dismissed on 17 August 2021 by reason of the failure of the applicant to appear. 2 Essentially the primary judge reasoned that as the application to review the anterior decision of the Administrative Appeals Tribunal (the Tribunal) had no realistic prospect of success, it would be futile to reinstate it. The primary judge further reasoned that the review application to the Tribunal was "doomed to fail" in that the applicant could not satisfy a mandatory criteria for the grant of a Regional Employer Nomination (subclass 187) Visa under the Direct Entry Scheme because he could not establish that he had an approved nomination of his employer, which is a requirement of cl 187.233 in Schedule 2 of the Migration Regulations 1994 (the Regulations). The short point is that on 3 August 2022, a delegate of the Minister refused the applicant's sponsoring employer's application for an approved nomination of the applicant in respect of a proposed occupation. The employer at that time was Rose View Corporate Pty Ltd (the Sponsor). Although the employer applied to the Tribunal to review that separate decision, on 13 February 2020, the Tribunal concluded that it did not have jurisdiction to review because the employer was deregistered on 3 November 2019 with the consequence that it then ceased to exist as a legal entity: s 601AD Corporations Act 2001 (Cth). It remains deregistered. 3 The Minister did not submit to me that I should refuse the extension of time application because it was filed out of time, or by reason of identifiable prejudice suffered by the Minister. Rather, the Minister was content to interrogate the merits of the application and the proposed appeal grounds and argued that as there is no merit in those grounds the application should be refused. Unsurprisingly, the Minister makes the overall submission that granting an extension of time and leave to appeal would be inutile because the applicant cannot establish the existence of an approved employer nomination. 4 The applicant appeared in person at the hearing before me on 20 September 2022. He did not require an interpreter and had good written and oral English comprehension. I have endeavoured to express my reasons simply and succinctly to assist the applicant. I took time during the hearing to question the applicant about his leave application and proposed appeal grounds, which appear to have been copied form other documents and which fail to illuminate the question whether the primary judge erred in the exercise of his discretion not to reinstate the review application that was dismissed on 17 August 2021. In consequence of my exchange with the applicant he was able to state and I was able to comprehend the real point that he has sought and seeks to make. He submits that the Tribunal and the primary judge each failed to consider his arguments about why he did have the benefit of an approved nomination by an approved sponsor as required by the Regulations. His point is that when he first made the application for the grant of the visa on 15 January 2018, his employer had applied to be the approved sponsor and that a delegate of the Minister therefore wrongly refused the employer nomination on 3 August 2018. The employer applied to the Tribunal for review of that refusal. The Tribunal concluded that it was without jurisdiction by reason of the deregistration of the employer for reasons shortly expressed on 13 February 2020. The applicant submits before me that because the employer was a registered corporation when he applied to review the delegate's decision to refuse his visa application, which he lodged with the Tribunal on 18 September 2018, that, and to use his words: "the legal question is at the time of the application was the company ineligible to sponsor someone? Was the company a liquidated entity?" 5 As these reasons explain, the fact that the employer was incorporated throughout 2018 and was not deregistered until 3 November 2019, does not address the issue which the applicant faces. He could not be granted the visa applied for unless at the date of the grant, either by the Minister's delegate or by the Tribunal, there existed the necessary jurisdictional fact being that he was nominated by an approved employer sponsor. He was nominated but it was not approved. 6 Understood in that way, it is unnecessary to replicate the grounds relied on in support of the extension of time application or the draft grounds of appeal from the decision of the primary judge as the drafting of those grounds simply do not address the central question that the applicant wants to agitate. In proceeding to the question as it developed in oral submissions before me, I am indebted to Ms Ren as counsel for the Minister who did not take technical points and responded to the argument as it developed. In my view, by adopting a conversationalist style with the applicant, I was able to tease out his essential point that was obscured by the drafting of his grounds with the result that the appeal was dealt with expeditiously, efficiently and fairly. 7 Despite the submissions of the applicant, I have concluded that the application to extend time and for leave to appeal must be dismissed for the reason that it has no realistic prospect of success.