FEDERAL COURT OF AUSTRALIA

Maskey v Minister for Immigration and Border Protection [2018] FCA 1268

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    This is an appeal against orders of the Federal Circuit Court of Australia made on 9 March 2018 consequential upon reasons for judgment published on the same day: Maskey & Anor v Minister for Immigration & Anor [2018] FCCA 500. The primary judge dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal, affirming the Minister’s refusal to grant the appellants a Temporary Business Entry (Class UC) subclass 457 visa on the basis that they had not satisfied the requirements of Part 457 of Sch 2 of the Migration Regulations 1994 (Cth).

2    For reasons that follow, the appeal must be dismissed.

Interlocutory application

3    The first appellant filed an interlocutory application dated 13 July 2018 seeking to have the hearing of the appeal vacated as a result of pain and stress he was experiencing leading up to surgery on his knee scheduled for the day after the hearing. The Minster opposed the application, which was returnable for hearing on the same day as the appeal hearing.

4    The second appellant appeared in Court but the first appellant did not. The second appellant said the first appellant could not make it to Court due to knee pain and anxiety about his operation. I then arranged for the first appellant to appear by telephone. He pressed his application for an adjournment. In effect, his position was that while he was capable of seeking an adjournment over the telephone he could not present his case on appeal because he had not prepared to do so despite knowing that the Minister opposed his application for an adjournment.

5    Having heard from the first appellant, and on the basis that he would be able to continue to appear by telephone during the hearing of the appeal, I dismissed the interlocutory application, giving reasons as follows:

The second appellant is present in court; the first appellant is present on the telephone. In respect of the interlocutory application which has been filed, as I have said, it is not accompanied by evidence that would persuade me that the first appellant is incapable of appearing [by telephone]. In fact, I am not even persuaded that he is incapable of appearing in the court. That is, physically in the court. The evidence of the impacts on his mobility are not sufficient to even reach that conclusion, let alone the conclusion that he is incapable of dealing with his own matter today.

Indeed, what has emerged from the telephone conversation is that the only reason he asserts he cannot deal with the matter today is not because of the surgery tomorrow to his knee, not because of any issue of pain he might be suffering, and not because of any anxiety or distress he might be suffering because of the impending surgery, (which is the third surgery to his knee), but because despite knowing that the Minister opposed the interlocutory application, the first appellant chose not to prepare himself for a hearing today, and, I infer, chose not to appear in circumstances where it is his primary application and he must know the facts on which he relies and matters on which he relies in support of it.

Having regard to the nature of the issue which arises on the application, which is within a very narrow scope relating to employer nomination, I do not accept that the hearing should be vacated and I do not accept or consider that I should proceed as if the appellants had not appeared today.

For those reasons, my order is that the interlocutory application dated 13 July 2018 be dismissed.

The Appeal

6    The appellants identified two grounds in their notice of appeal:

1.    That the Federal Circuit Court (FCC) failed to take relevant consideration into account relating to my injuries arising out of my contract of employment with the subject sponsor in determining whether the Administrative Appeals Tribunal (ATT) erred in granting an extension of time to provide further information or documents in relation to the question of satisfying clause 457.223 of Schedule 2 to the Migration Regulations 1994 (Cth); and

2.    That the FCC failed to ask relevant questions whether my sponsor’s representative (who was also my representative) did sufficiently enough to contact me (by invitation from the AAT) to provide further information resulting in lack of procedural fairness by the Tribunal's refusal to grant me a fair hearing in relation to the issue before the FCC.

7    The first appellant made no submissions in support of the appeal on the basis he was unprepared because he had applied for the hearing to be vacated. The appeal of the second appellant, who is married to the first appellant, depends on the position of the first appellant. The second appellant also said nothing in support of the appeal. The Minister relied on written submissions. Those submissions explain why these appeals cannot succeed.

8    The issue before the Tribunal was whether the first appellant met the requirements of cl 457.223(4)(a) of the Regulations in relation to an approved employer sponsor.

9    Clause 457.223(4) of the Regulations (as it was at the time the appellants lodged their visa application) provided:

(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; …

10    The Tribunal found at [20]-[24] that there was no evidence that the first appellant had met any of the requirements of cl 457.223(a)(i), (ii) or (iii). As a result, at [25] of its reasons, the Tribunal found no evidence that the second appellant satisfied the requirements of cl 457.321 of the Regulations, which allowed for a 457 visa to be granted to an applicant who is a member of the family unit of a person who (having satisfied the primary criteria) is the holder of a 457 visa.

11    The primary judge was correct to conclude at [21] that no jurisdictional error was disclosed by the Tribunal’s reasons. Information regarding the first appellant’s claimed injuries was not before the Tribunal and was not relevant. The Tribunal had to decide whether the appellants met the requirements contained in Pt 457 of Sch 2 of the Regulations. Given that the appellants had not provided the Tribunal with any information regarding an employer nomination and the subsequent confirmation of the first appellant’s employer that it did not wish to proceed with the relevant nomination, the Minister’s submission that the “only conclusion” open to the Tribunal was that there was no evidence that the requirements of cl 457.223(4)(a) had been met must be accepted.

12    Further, under s 359(1) of the Migration Act 1958 (Cth), the Tribunal may seek information relevant to a review. If no information is given by a person to whom a s 359 request was made by the nominated due date, then s 359C(1) applies, which provides that the Tribunal may make a decision on review without obtaining further information. And if s 359C(1) of the Migration Act applies to a review applicant, s 360(3) provides that “the applicant is not entitled to appear before the Tribunal”.

13    On 15 August 2016 the Tribunal made a request pursuant to s 359(1) to the appellants (through their representative) for information regarding the first appellant’s sponsorship status. The appellants did not provide the information by the nominated date. Instead, the appellants’ representative wrote to the Tribunal on 24 August 2016 requesting an extension of time to provide a response. The Tribunal was not bound to grant the extension, but the Tribunal wrote to the appellants on 1 September 2016 informing them that they had lost their entitlement to a hearing but now had until 16 September 2016 to provide the requested information. This process accorded with s 363A of the Migration Act which provides that “[i]f a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person”: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [29]).

14    In any event, and as noted, after this on 13 September 2016 the appellants’ representative notified the Tribunal that the first appellant’s employer did not wish to continue with the nomination. The Tribunal then decided to proceed with the review. As the primary judge found these circumstances do not disclose any legal error by the Tribunal. As the Federal Circuit Court said at [17]:

That the Sponsor may have initially represented to the applicant it would nominate the applicant but then decided not to nominate the applicant, apparently because of an injury or injuries he suffered, is unfortunate and, perhaps, unfair to the applicant. Any misfortune or potential unfairness, however, is the result of what the Sponsor did or did not do; it is not the result of any jurisdictional error by the Tribunal.

15    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    21 August 2018