Lee v Minister for Immigration and Border Protection

1. The name of the Second Respondent is changed to Administrative Appeals Tribunal.
2. The Application for an extension of time is refused.
3. The proceeding is dismissed.
4. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1 The Applicant in the present proceeding, Mr Hyeonjin Lee, is a citizen of South Korea. 2 In June 2013 he applied to the then Department of Immigration and Citizenship for a Temporary Work (Skilled) Subclass 457 visa. 3 There are three stages involved in the processing of a 457 visa, namely: an application made by an employer to be an approved "standard business sponsor"; the nomination by the employer of an eligible occupation; and a visa application by the person nominated to work in the nominated occupation. See: Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30 at [3]. The present case focusses upon whether there was an approved business sponsor. 4 The June 2013 application made by Mr Lee nominated Mill & Penn Management Pty Ltd ("Mill & Penn") as his "sponsoring employer". But in August 2013 Mr Lee was informed by the Department that Mill & Penn did not have an approved nomination for him. On 11 February 2014 Mr Lee accordingly changed his nominated "sponsoring employer" to GNT Dream Pty Ltd ("GNT"). 5 GNT had on 8 February 2014 lodged an application for standard business sponsorship with the Department nominating Mr Lee. But a delegate of the Minister refused that application on 27 March 2014. 6 The delegate when considering Mr Lee's application accordingly concluded that he did not satisfy the requirements of cl 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth). As at the relevant date, that clause provided as follows: Standard business sponsorship (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased as provided for in regulation 2.75 … GNT Dream Pty Ltd, the delegate concluded, was not an "approved standard business sponsor" because of the decision taken on 27 March 2014 to refuse GNT's application for standard business sponsorship approval. 7 In April 2014 Mr Lee sought review by the Migration Review Tribunal. That Tribunal was later amalgamated within the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth). 8 In July 2014 the Tribunal concluded it did not have jurisdiction to review the delegate's decision by reason of s 338(2)(d) of the Migration Act 1958 (Cth). As at the relevant date, s 338(1) provided that a decision is an "MRT-reviewable decision if this section so provides". Section 338(2) thereafter provided in relevant part as follows: A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if: …; and (d) 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 Tribunal concluded that s 338(2)(d) was not satisfied because "the applicant was not sponsored by an approved sponsor and no review of a decision not to approve the sponsor was pending". Its reasons for decision thus relevantly provide in part as follows: 3. Information before the Tribunal indicates that the application made by the applicant's sponsoring employer, GNT Dream Pty Ltd, for approval as a standard business sponsor was refused by the Department on 27 March 2014. Records before the Tribunal indicate that at the time of the application for review of the decision to refuse to grant subclass 457 visas to the applicants, GNT Dream Pty Ltd was not an approved sponsor and no review of the decision not to approve GNT Dream Pty Ltd as a sponsor was pending. 4. The Tribunal invited the applicants to comment on the validity of the application for review, however, no response was received. 5. On the material before it, the Tribunal finds that, at the time the application to review the decision to refuse to grant the visas was made, the applicant was not sponsored by an approved sponsor and no review of a decision not to approve the sponsor was pending. Accordingly, the requirements of s. 338(2)(d) were not met. 6. As such, the delegate's decision in the circumstances is not an MRT-reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4). 9 Mr Lee thereafter filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision. Before that Court the Applicants were represented by solicitors. On 7 October 2015 that Court dismissed the application: Lee & Anor v Minister for Immigration & Anor [2015] FCCA 2736. Like the Tribunal, that Court also found that the Tribunal had no jurisdiction and concluded in part as follows (without alteration): [33] … there was no evidence before the Tribunal that the applicant was identified in a nomination by an approved sponsor under s 140GB of the Migration Act. There is also no evidence that after GNT was refused as a business sponsor, a further application for nomination by an approved sponsor identifying Mr Lee was lodged with the Department before the application for review of the decision to refuse the visa was lodged with the Tribunal. Nor was there any information suggesting that GNT sought review of the sponsorship decision with the Tribunal. [34] It maybe accepted that s 338(2)(d)(i) will be satisfied if there is a nomination by an approved sponsor pursuant to s 140GB(1) of the Migration Act which is yet to be decided at the time of an application for review of a visa refusal decision to the Tribunal. Those facts, however, did not arise in the applicants' case. 10 On 5 November 2015 Mr Lee filed an Application for an extension of time in this Court. He sought an extension of time because r 36.03 of the Federal Court Rules 2011 (Cth) prescribes that an appeal is to be filed within 21 days after the date on which the judgment appealed from is pronounced. In making that Application, some confusion arises by reason of the fact that Mr Lee is identified as the sole Applicant; but the Draft Notice of Appeal identifies the proposed Appellants as Mr Lee "and another". But that matters not. The same result follows whether or not it is Mr Lee and his spouse who are jointly making the Application for an extension of time and jointly seeking to appeal or whether it is Mr Lee who alone is seeking an extension of time. 11 The Application in this Court did not proceed smoothly. It was first listed for hearing on 12 February 2016. But on that date the proceeding was stood over for hearing on 8 March 2016. On 8 March a solicitor appeared on behalf of Mr Lee. He sought an adjournment because he had only been instructed the previous evening to appear. The adjournment was opposed by the Respondent Minister but was nevertheless granted. The proceeding came back before the Court on 10 March 2016 when a further adjournment was sought. Again, any adjournment was opposed. The hearing was nevertheless stood down for a couple of hours in order to enable Mr Lee's solicitor a further opportunity to identify any arguable basis upon which it could be said that either the Tribunal erred or that the Federal Circuit Court Judge had committed appellable error. Some care was taken to identify for the benefit of Mr Lee's representative the basis upon which the Tribunal had proceeded. At the resumed hearing, no arguable contention emerged. The submission that was advanced, with respect, focussed erroneously upon the merit in permitting a further sponsorship application to be made rather than seeking to identify any potential error in the Tribunal's reasons for decision. No further adjournment was granted. The issue to be resolved was within an extremely narrow compass and the adjournment from 8 to 10 March 2016 was an adequate opportunity to structure any available argument. 12 The hearing of the Application for an extension of time, accordingly, proceeded on 10 March 2016. The extension of time is to be refused. 13 Notwithstanding the prescription in r 36.03 as to the time within which an appeal is to be filed, the power to extend that time remains discretionary. In Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Tracey J, said in respect to the discretion to extend time: [12] … The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that "the respondent to the application has a vested right to retain the judgment, the subject of the appeal": see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A "full rehearsal" of the argument on appeal is not required. Any assessment of "the merits" must necessarily be undertaken "in a fairly rough and ready way": see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to. Even where the period of time for which the extension is sought may be short and even where a respondent suffers no prejudice, an extension may be refused: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [37] to [39], (2001) 117 FCR 424 at 439 to 440 per Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [36] per Rares, Flick and Griffiths JJ. An extension of time may also be granted but the appeal itself may be dismissed: e.g., AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193. 14 The discretion is to be exercised adversely to Mr Lee simply because the decision of the Tribunal that it lacked jurisdiction was clearly correct. 15 The ambit of the review jurisdiction entrusted to the former Migration Review Tribunal has changed over time. The history of the evolution of this jurisdiction was traced in considerable detail by Katzmann, Robertson and Griffiths JJ in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. On the facts there presented, the Full Court concluded: Consideration [95] In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, "is sponsored by an approved sponsor". [96] It was common ground between the parties that being "sponsored by an approved sponsor" is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision … [97] The next question is the meaning of the words "sponsored by an approved sponsor" in s 338(2)(d)(i). [98] The definition of the word "sponsored" in s 337, which applies to s 338 … picks up the meaning of the word "sponsored" in the regulations … [99] Turning to s 338(2)(d)(ii), the expression "decision not to approve the sponsor" includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB. [100] On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made. [101] It follows that the Tribunal had jurisdiction. … [106] At the time Mr Ahmad was refused a subclass 457 visa, he was "sponsored by an approved sponsor" in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision, and the review was pending. 16 Even though the extension of time sought by Mr Lee in the present case is for a limited period and the Respondent Minister quite properly does not claim any prejudice by reason of delay, there is little point in granting the extension and thereafter proceeding to dismiss the appeal. 17 On the facts presented, Mr Lee did not fall within either s 338(2)(d)(i) or (ii) because: at the time he made his application to the Tribunal to review the delegate's decision in April 2014 a decision had previously been taken in March 2014 to refuse GNT's application for approval; and at the time when Mr Lee made the application for review of the decision to refuse the visa, no application was pending to review the refusal to approve GNT as the sponsor. The facts of the present case are thus distinguishable from those in Ahmad. On the facts of that case, and as noted by the Full Court, there was a pending application for review of the decision not to approve the sponsor. A like conclusion was also reached by the same Full Court in Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180, and El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181. 18 The Federal Circuit Court Judge was also correct to dismiss the application that was before that Court. It may be noted that the decision of that Judge was published prior to the three decisions of the Full Court of this Court in Ahmad, Sharma and El Masri. 19 There is no reason why costs should not follow the event.