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[2022] FCA 1194
Federal Court of Australia
2022-10-06
McElwaine J
Original judgment source is linked above.
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.
Background 8 I am indebted to counsel for the Minister who, in her written submissions, accurately and with admirable clarity summarised the essential facts, which I adopt and largely reproduce from her written submissions. 9 On 15 January 2018, the first applicant applied for the visa under the Direct Entry stream including the second applicant as a family member. The first applicant was sponsored by the Sponsor to work in the nominated position as a Café or Restaurant Manager at the Sponsor's business located in Forster NSW. The application included an employment contract executed on 12 January 2018. 10 On 3 August 2018, the delegate refused the nomination lodged by the Sponsor in respect of the café manager position for which the first applicant was nominated. On 6 August 2018, the then Department of Home Affairs sent a letter to the applicants inviting them to comment on the refusal of the nomination within 28 days. The applicants did not provide any response within the timeframe. 11 On 4 September 2018, the delegate refused to grant the applicants the visa on the basis that the first applicant was not the subject of an approved nomination and so did not satisfy cl 187.233(3) of Schedule 2 to the Regulations . 12 On 18 September 2018, the applicants applied to the Tribunal for review of the delegate's decision assisted by their representative and migration agent, Mr Ali. 13 On 16 April 2020, the Tribunal invited the applicants to a hearing by telephone. 14 On 5 May 2020, the first applicant appeared at the Tribunal hearing, at which the Tribunal delivered oral reasons affirming the decision under review. 15 On 7 May 2020, the applicants requested a copy of the Tribunal's written reasons. The Tribunal subsequently produced written reasons on 8 May 2020. 16 Based on the evidence before it, the Tribunal found that the appointment of a nominated position lodged by the Sponsor on behalf of the first applicant had not been approved. As a result, the Tribunal found that the first applicant did not meet the requirements of cl 187.233(3) of the Regulations at the time of its decision. 17 The Tribunal also affirmed the decision not to grant the second applicant the visa as she was not a family member of a person who holds a subclass 187 visa. The Tribunal noted that there was no evidence that she met any of the primary visa criteria. 18 The Tribunal noted that the applicants had only sought to satisfy the criteria for a subclass 187 visa in the Direct Entry scheme and that no claims had been made in respect of the other visa streams. The Tribunal found it must affirm the delegate's decision as the requirements of the Direct Entry Scheme had not been met. 19 On 26 May 2020 the applicants applied for judicial review under s 476 of the Migration Act 1958 (Cth) of the Tribunal's decision. The application for judicial review pleaded one ground of review as follows (without alteration): The AAT has failed to determine my application in accordance with the law, resulting in unfairness to me. 20 On 17 August 2021 the then Federal Circuit Court of Australia dismissed the application for non-appearance of the applicants pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 21 On 26 August 2021 the applicants filed an application in a case seeking to set aside the orders made on 17 August 2021 and reinstate the substantive application. In support of the reinstatement application, the first applicant attached a certificate which identified that he was unfit for work dated 17 August 2021. The applicant orally raised 6 identifiable grounds of review covering contentions of bias by prejudgment, a failure to afford procedural fairness, the brevity of the Tribunal's reasons for dismissal of his application and a failure of the Tribunal to comply with unspecified laws and procedures. 22 The primary judge dismissed all of the grounds in an ex tempore decision delivered at the conclusion of the hearing on 12 November 2021 and subsequently produced written reasons on 3 March 2022. 23 On 24 November 2021, the applicants lodged in this Court a draft notice of appeal from the decision of the primary judge and a supporting affidavit of the applicant. On 6 December 2021, the applicants filed an application for extension of time and leave to appeal, which was 14 days outside the time prescribed by r 35.13 of the Federal Court Rules 2011 (Cth). On 20 May 2022, the Chief Justice allocated this matter to my docket. 24 Something also needs to be said about the employer nomination application. Section 140E of the Migration Act provides that the Minister must approve a person as a work sponsor in relation to one or more prescribed classes of employment if the prescribed criteria are satisfied. The Regulations set out the prescribed classes in relation to which a person may be approved as a work sponsor. Clause 187.233 of schedule 2 relevantly provided: (1) The position to which the application relates is the position: (a) nominated in an application for approval that: (i) identifies the applicant in relation to the position; and (ii) is made in relation to a visa in a Direct Entry stream; and (iii) seeks to meet the requirements of subregulation 5.19(12); and (b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa. (2) The person who will employ the applicant is the person who made the nomination. (3) The Minister has approved the nomination. (4) The nomination has not subsequently been withdrawn. (4A) Either: (a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or (b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person. (5) The position is still available to the applicant. (6) The application for the visa is made no more than 6 months after the Minister approved the nomination. 25 Although the applicant's employer applied to be the nominated work sponsor, the fact is that the application was refused by the Minister's delegate on 3 August 2018 and despite the review application lodged by the employer, the Tribunal correctly concluded that it could not be prosecuted beyond 3 November 2019, which was the deregistration date. For the benefit of the applicant, it must be understood that his visa application was separate from the employer nomination application and it was not and is not open to him to proceed with the employer application or its review to the Tribunal.
Resolution of the application to this Court 26 This is a case where it is necessary and desirable to examine the merit of the proposed ground as formulated in oral argument and the applicant's supplementary written submission in detail as determinative of the extension of time and leave to appeal applications: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28 at [18]-[19]. The reason is that the absence of an approved employer nomination is fatal to the applicant's argument. 27 As was explained to the applicant at the hearing, the difficulty he faces is that the legislative scheme which provides for the class of visa that he seeks requires that it be supported by an approved employer nomination. Regulation 5.19 of the Regulations provides for a person (the nominator) to apply to the Minister for approval of the nomination of a position in Australia which, in the case of a subclass 187 (Regional Sponsored Migration Scheme) visa, was required to be made before 16 November 2019 (save for a presently irrelevant exception). Subclass 187 of schedule 2 to the Regulations sets out the criteria for the grant of a Regional Sponsored Migration Scheme visa. Clause 187.2 provides, amongst other things, that all of the prescribed criteria must be met at the time a decision is made on the application. And then in the terms I have set out, cl 187.233 requires that the position to which the applicant's application relates "is the position" nominated in the application, is made in relation to the Direct Entry stream and that the Minister has approved the nomination. 28 Although the employer made an application to the Minister for approval of the nomination of the applicant, it was refused on 3 August 2018. Thereafter, and despite the Tribunal application lodged by the employer, it was not open to the Minister to grant to the applicant the visa applied for because he could not satisfy a mandatory criteria for its grant being Ministerial approval of his employer's nomination. 29 It is understandable that the applicant is confused by the difference between an application made by an employer that was eligible to make it and the requirement that it be approved as a necessary condition of the power to grant to the applicant the visa that he seeks. The question is not, as framed by the applicant, whether the employer was eligible to be his sponsor when he made his visa application. Eligibility to apply and ultimate approval of the nomination by the Minister are distinctly separate steps. The applicant must also understand that despite his claim that his employer made him pay the filing fee on its application to the Tribunal (which I accept), it is only the employer that was legally capable of pursuing the application. 30 The Tribunal was concerned in this case with review of the decision of the delegate to refuse the applicant's visa application. It made no legal error in concluding that the review must be dismissed due to the absence of an approved employer nomination. Further, the primary judge did not err in concluding that the applicant failed to make any case of jurisdictional error by the Tribunal. He was correct to dismiss the reinstatement application for the reasons given ex tempore on 12 November 2021 and subsequently published on 3 March 2022. 31 For these reasons, there is no merit in any of the applicant's proposed grounds of appeal either as initially formulated in his extension of time and leave to appeal application or as developed in oral argument before me. There is no reason why costs should not follow the event. I order as follows: (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. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.
Hasan
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
(2022) 96 ALJR 819