FEDERAL COURT OF AUSTRALIA

Gulati v Minister for Immigration and Border Protection [2017] FCA 255

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal, together with the supporting affidavit annexing a draft notice of appeal, be treated as an application for an extension of time to file a notice of appeal.

2.    The application for an extension of time to file a notice of appeal be dismissed.

3.    The applicant pay the respondents’ costs of and incidental to the proceedings in this Court as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This judgment concerns two applications, being an interlocutory application for an extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia, and an application to adjourn the scheduled hearing of that interlocutory application. The primary judge:

(1)    declared that the Administrative Appeals Tribunal as successor to the Migration Review Tribunal did not have jurisdiction to review the 16 May 2014 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Temporary Business Entry (Class UC) subclass 457 visa;

(2)    reinstated the applicant’s proceedings before that Court which had previously been summarily dismissed for non-appearance;

(3)    quashed the 7 August 2014 decision of the Tribunal by reason of the lack of jurisdiction to entertain the application for review before it;

(4)    ordered the Minister to pay the applicant’s costs of the proceedings before his Honour; and

(5)    ordered the applicant to pay the Minister’s costs thrown away by reason the reinstatement order referred to above.

2    The decision of the primary judge was final and not interlocutory, a conclusion conceded as being correct by the Minister. While the hearing before the primary judge was that of an application in a case by the applicant to reinstate proceedings that had been summarily dismissed, his Honour then proceeded to dispose of the matter by issuing a writ of certiorari quashing the Tribunal’s decision.

3    The applicant therefore achieved the final and determinative objective of setting aside the Tribunal’s decision, albeit not for the reasons he advanced, and without the benefit of the remittal he was effectively seeking. Such a remittal would have been futile in light of the finding and declaration that the Tribunal did not have jurisdiction. There was, therefore, no need for the applicant to obtain leave to appeal. Again, the Minister did not dispute this conclusion.

4    The process by which the applicant sought relief in this Court was electronically lodged and accepted for filing on 16 August 2016. That was seven days after the expiry on 9 August 2016 of the time for filing a notice of appeal: r 36.03 of the Federal Court Rules 2011 (Cth). The Minister did not object to the Court treating the present application for an extension of time and leave to appeal, together with the affidavit of the applicant dated 16 August 2016 to which was annexed a draft notice of appeal, as in combination constituting an application for an extension of time to file a notice of appeal. That is the course the Court adopted at the hearing.

5    The draft notice of appeal, now treated as a notice of appeal filed out of time, contains no intelligible grounds. However the Minister did not object to this Court treating the draft notice of appeal as raising the only possible meaningful ground of appeal, namely an assertion that the primary judge erred in concluding that the Tribunal did not have jurisdiction to entertain the application for review before it. For the reasons that follow, that ground, taken to have been raised in the manner most beneficial to the applicant, is unsustainable.

The applicant’s adjournment application

6    On 9 March 2017 at 10.41 am, the day before the scheduled hearing, the applicant sent an email to the Court’s “NSW Appeals Unit” email address. That email was forwarded a short time later to my associate. The text of the email was as follows:

My name is sahil gulati and I have a hearing on 10th march on Friday but I cannot be able to attend this hearing because I am not well and because of that have some asthma related problem as well if you can give me another hearing date I will be thankful to you . I am sending my doctor certificate with this email as well . 

Please if you can give me another hearing date .

Thank you . 

Sahil gulati 

Case no. -

NSD1356/2016

7    Annexed to that email was a medical certificate in the following terms:

[Letterhead of Auburn Health Care Centre]

Medical Certificate

8th March 2017

THIS IS TO CERTIFY THAT

: Sahil Gulati [street address omitted] Blacktown 2148

Sahil Gulati has a medical condition and will be unfit for work and needs bed rest from 09/03/2017 to 10/03/2017 inclusive.

Best regards

Dr Kwok Chung Wan

8    For present purposes only I have assumed in the applicant’s favour that the above medical certificate he has provided is genuine.

9    The application by email to adjourn the hearing of the appeal was refused. An email was sent by the Court’s appeals unit to the applicant to that effect at 1.57 pm on 9 March 2017, copied to the Minister’s solicitors. The text of the email, omitting the sender’s name and details, was as follows:

Dear Mr Gulati

I refer to your email below.

Please be advised that his Honour has refused your application for an adjournment. The hearing of your application for an extension of time and leave to appeal will proceed as scheduled at 11.15 am on Friday, 10 March 2017.

The allocated Courtroom is likely to be court 19D, however, you should confirm the location of the hearing upon your arrival at the Court. This information will be available on the noticeboards in the Court lobby.

10    The applicant appeared in person when the matter was called for hearing shortly after 11.15 am. While he seemed hesitant and perhaps was not feeling altogether well, he made no further complaint in that regard. He was physically able to participate in the hearing, which was very short. His greater difficulty was in not being legally represented, but in the circumstances of this case it is doubtful that made any difference either. However because the adjournment application was refused, it is appropriate to give some short reasons for reaching that conclusion and making that order.

11    The applicant’s application by email for an adjournment, supported only by the medical certificate described above, was an insufficient and unacceptable means by which a scheduled hearing before this Court should be sought to be adjourned, let alone a hearing in this Court’s appellate jurisdiction. This is reinforced by three factors in this case.

12    The first factor is the lack of merit in the underlying application and proposed appeal, which is addressed in more detail below. Put shortly, the applicant cannot, on any view of the matter, succeed in his proposed appeal. It follows that in this case the discretion to grant an extension of time in which to file a notice of appeal has no practical content because there is no proper basis upon which to exercise the discretion in the applicant’s favour. Any delay in the hearing cannot make any difference to the outcome and will only result in further costs being unnecessarily incurred. While such a clear situation is not a prerequisite for denying an adjournment, it is a powerful, if not overwhelming, consideration in this case.

13    Secondly, the applicant’s evidence, comprising only the medical certificate annexed to the email, does not compel the conclusion that the applicant was unfit to appear before the Court at the scheduled hearing on 10 March 2017. The certificate was produced a short time before the hearing and stated only that the applicant was certified “unfit for work and needs bed rest from 09/03/2017 to 10/03/2017 inclusive”. There is nothing to indicate that Dr Wan was told anything about any court proceedings. Certainly he (or possibly she) expressed no opinion on whether or not the applicant was fit to attend court proceedings listed for only one hour’s duration (and in fact taking much less time than that). There is no indication of what the applicant’s “medical condition” was to enable the Court to make any assessment of that. That only bed rest for two days was said to be required suggests a relatively minor ailment for which attendance at Court may have been entirely feasible. Dr Wan might well have concluded that the applicant could interrupt any bed rest required for a one-hour court hearing, as indeed occurred.

14    The third factor reinforcing my view that this is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3]–[6]; followed in Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a “formulaic document” but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant’s inability to attend Court. That is especially so when a matter was fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing.

15    For the above reasons, on 9 March 2017 the adjournment application was refused. The adjournment application was not renewed at the hearing on 10 March 2017.

Application for an extension of time to file a notice of appeal

16    The Full Court has recently confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is an acceptable explanation, the merits of the appeal, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

17    The delay in filing the present application was relatively small. Although this remained unexplained, it was not suggested by the Minister that this of itself was a sufficient reason to refuse an extension of time if the application was otherwise meritorious. The Minister also properly conceded that there was no relevant prejudice. The main barrier advanced to the grant of an extension of time was the lack of merit in the proposed appeal.

18    There is nothing before me by which the applicant has addressed the substance or prospects of success of his underlying judicial review application in the Federal Circuit Court. For the reasons that follow, that is not surprising. I have read the reasons of the Tribunal and of the primary judge, and I have also had regard to the Minister’s written and oral submissions. The Tribunal’s reasons are of no assistance as they address the merits of the application for review, upholding the delegate’s decision on the facts and evidence before it, rather than declining to deal with that application by reason of having no jurisdiction.

19    The Minister’s written submissions helpfully restate the submissions that were made to the primary judge and assert that his Honour was correct to find that the Tribunal did not have jurisdiction.

20    The primary judge summarised the applicant’s application, the relevant legislation and case history in a manner that was clear and concise and that I cannot usefully improve upon. His Honour said as follows:

1.    The applicant, who is a citizen of India, applied for a Business (Long Stay) subclass 457 visa on 27 January 2012. On 22 February 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the English language requirements for the grant of the visa. The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. On 11 March 2014 the Tribunal remitted the applicant’s matter to the Department of Immigration and Border Protection (“Department”) for reconsideration. On 16 May 2014 a second delegate of the Minister refused the applicant’s application on the basis that he did not satisfy cl.457.223(4)(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he was not the subject of an approved nomination by an approved sponsor. The applicant again sought review with the Tribunal and on 7 August 2014 the Tribunal, differently constituted, affirmed the second delegate’s decision to refuse the applicant a visa.

…

Relevant legislation

8.    The criteria for the grant of a subclass 457 visa are found in pt.457 of sch.2 to the Regulations. One of the primary criteria which the applicant had to satisfy at the time a decision was made on his application was cl.457.223(4). At the time the decisions of the second delegate and the reconstituted Tribunal were made, cl.473.223(4) provided:

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 ...

9.    The Act and the Regulations provide for a scheme under which employers who wish to employ overseas employees may apply to the Minister to be approved as sponsors for such a purpose. Section 5 of the Act relevantly defines an “approved sponsor” as:

(a)    a person:

(i)    who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

(ii)    whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class ...

10.    Section 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more prescribed classes of sponsorship if the person satisfies the prescribed criteria. Regulation 2.58 of the Regulations prescribes a number of classes of sponsors, among which is a “standard business sponsor”.

11.    By operation of s.140GB(1) of the Act and reg.2.56(k) of the Regulations, an approved sponsor is able to nominate an applicant for a subclass 457 visa. Section 140GB(2) provides that the Minister must approve an approved sponsor’s nomination of an applicant if the prescribed criteria are satisfied. An approved nomination ceases twelve months after the day on which it is approved: reg.2.75(2)(b) of the Regulations.

Background facts

12.    In his application form lodged on 27 January 2012 the applicant indicated that he was sponsored by a business named Jai Sachidanand Pty Ltd for the position of Cook. On the same day the applicant’s proposed sponsor also applied to the Department for approval as a standard business sponsor. At some undisclosed point, the applicant’s proposed sponsor was approved as a standard business sponsor and it also obtained an approved nomination in favour of the applicant. As already noted, on 22 February 2012 a delegate of the Minister refused the applicant’s application on the basis that he did not satisfy the English language requirements for the grant of the visa.

13.    On 20 March 2012 the applicant filed with the Tribunal an application for review of the delegate’s decision. While the applicant’s application for review was still pending, on 22 February 2013 the approved nomination which had been obtained by his sponsor in his favour expired. On 6 May 2013 the Tribunal wrote to the applicant requesting, amongst other things, evidence that he was the subject of an approved nomination by a standard business sponsor which had not ceased. In a written response dated 3 June 2013 the applicant’s representatives submitted that although the applicant’s approved nomination had lapsed, his sponsor was willing to file a new nomination application once the applicant had received the results of an English language test he had undertaken. Accompanying the submission was a letter from the director of Jai Sachidanand Pty Ltd confirming that Jai Sachidanand Pty Ltd intended to lodge a new nomination in favour of the applicant. The applicant’s representatives later provided to the Tribunal a copy of the applicant’s sponsor’s further nomination application in relation to the applicant made on 5 September 2013. The outcome of that nomination application is unknown to the Court.

14.    On 11 March 2014 the Tribunal found that the first delegate’s decision concerning the applicant’s English language ability was erroneous and remitted the applicant’s application to the Department for reconsideration. Following that remittal, on 3 April 2014 the Department wrote to the applicant advising him that he was required to provide evidence of a new nomination because his approved nomination had expired. On 16 April 2014 the applicant’s migration agent responded and stated that the applicant was looking for a new sponsor and required some time for that.

15.    On 16 May 2014 a second delegate of the Minister refused to grant the applicant a visa. In reaching that decision, the second delegate noted that the approved business nomination which had been lodged by the applicant’s sponsor had expired on 22 February 2013 and that despite being asked to provide evidence of an approved nomination the applicant had not done so. The second delegate therefore found that the applicant did not meet the requirements of cl.457.223(4)(a).

16.    The applicant then sought review of the second delegate’s decision with the Tribunal. On 7 July 2014 the Tribunal wrote to the applicant in the following terms:

You are invited to provide the following information in writing:

Information to demonstrate that you are the subject of an approved nomination of an occupation, which has not ceased, as required by cl.457.223(4)(a);

OR

Information to demonstrate that you will meet this requirement in the near future and before a decision is made on your review application – for example, information to demonstrate that your sponsoring employer is an approved business sponsor and has made a nomination application relating to you which is currently being processed by the Department of Immigration and Border Protection.

17.    On 18 July 2014 the applicant responded stating that his previous sponsor had diversified its business into the transport sector and was no longer able to sponsor him. He stated that one of his prospective employers was taking steps to lodge a nomination application in his favour. At a hearing before the reconstituted Tribunal on 7 August 2014 the applicant said that he had ultimately been unable to secure the support of the employer referred to in his letter dated 18 July 2014 and asked for more time to find another sponsor. He also said that he had had difficulties securing a position as a Cook because he suffered from asthma.

18.    The reconstituted Tribunal found that there was no evidence before it indicating that the applicant was the subject of an approved nomination which had not ceased. It considered the applicant’s request for additional time to locate an employer who was willing to nominate him but declined his request. In that regard, it noted that its letter of 7 July 2014 had invited the applicant to provide information in relation to an approved nomination but he had been unable to provide evidence which indicated that a prospective employer was willing to support him and had lodged a relevant nomination or was preparing to do so. The reconstituted Tribunal found that the applicant did not meet cl.457.223(4)(a) and therefore affirmed the second delegate’s decision to refuse him a visa.

21    Before the primary judge, the Minister did not contend that the Tribunal’s decision was free from jurisdictional error. It was submitted that the Tribunal did not have jurisdiction to review the decision of the delegate dated 16 May 2014 and was wrong to proceed to review the applicant’s application on the assumption that it did have jurisdiction to do so. However it was primarily submitted that relief should be refused on discretionary grounds. The key submissions made to his Honour and repeated in this Court, which I accept, were to the following effect:

(1)    The applicant’s “nomination” had ceased prior to the lodgement of his application for review to the Tribunal and he had not yet lodged another nomination application, a point apparently conceded by the applicant in the Court below. The applicant was therefore not “sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa was made”, such that his circumstances did not fall within s 338(2)(d)(i) of the Migration Act.

(2)    The applicant’s circumstances also did not fall within s 338(2)(d)(ii) of the Migration Act because no application for review of a decision not to approve the sponsor had been made when the applicant made his review application.

(3)    Because there was no nomination of the applicant under s 140GB of the Migration Act that had been lodged and not ceased prior to the time that the Tribunal application was lodged, and no pending application for review of a decision not to approve a sponsor at the time the Tribunal application was made, this matter was distinguishable from Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 and from Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180.

(1)    In Ahmad and Sharma, the Full Court found that the Federal Circuit Court judge in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 was correct to find, albeit as considered obiter, that the Tribunal did not have jurisdiction in circumstances where the relevant nomination had ceased before the application to the Tribunal for review, being the situation in this case: Ahmad at [111].

(2)    Because the delegate’s decision was not an “MRT-reviewable decision” the Tribunal did not have jurisdiction to review it.

(3)    If the judicial review application were to be reinstated, the only appropriate order would be a writ in the nature of certiorari quashing the decision of the Tribunal dated 7 August 2014. It would be futile to remit the matter to the Tribunal for reconsideration.

22    The primary judge accepted the burden of those submissions, but concluded that the primary relief should be granted in light of the conceded jurisdictional error, as follows:

25.    … the second delegate’s decision was not an “MRT-reviewable decision” and, as a consequence, the Tribunal did not have jurisdiction to review the second delegate’s decision. That being so, the Tribunal’s decision is liable to be set aside, although, because the Tribunal would have no jurisdiction to re-hear the matter were the applicant’s case to be remitted to it, the Court would not order a writ of mandamus issue directing the Tribunal to reconsider the review application.

26.    In those circumstances, although no practical benefit could flow from setting the Tribunal’s decision aside, nevertheless, that is an order which the applicant has sought and which it has been demonstrated ought to be granted. It is a regrettable fact that setting the Tribunal’s decision aside will not, in a practical way, improve the applicant’s position.

23    At the hearing of the appeal the Minister also relied upon a decision of Flick J in Lee v Minister for Immigration and Border Protection [2016] FCA 294 at [17] where, in effect, the obiter reasoning in Ahmad was followed to find no jurisdiction in the Tribunal when there is no nomination or sponsorship and none pending. I am of the same view. Although obiter, the reasoning in Ahmad when that situation prevails should apply.

24    In my opinion the reasons and conclusions reached by the primary judge are unassailably correct. It is plain that the Tribunal did not have jurisdiction to entertain the applicant’s application for review before it. It follows that there is no prospect whatever of the applicant’s appeal succeeding. The application for an extension of time must therefore fail because granting it would be futile.

25    The application for an extension of time to file a notice of appeal is therefore dismissed. There is no reason why costs should not follow the event. The applicant must therefore pay the Minister’s costs and any costs of the Tribunal of and incidental to this application.

Associate:

Dated:    15 March 2017