FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Home Affairs [2019] FCA 1299

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal be dismissed.

2.    The applicants pay the costs of the first respondent, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for extension of time and leave to appeal from a decision of the Federal Circuit Court given on 7 November 2018 in Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 3457. In that judgment the primary Judge dismissed the applicants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the Minister not to grant each of them a Temporary Business Entry (class UC) Temporary Work (Skilled) (Subclass 457) visa (visa). The decision was pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) which relevantly provides:

Show cause hearing

(1) At a hearing of an application for an order to show cause, the Court may:

(a) if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

2    Rule 44.12(2) provides that, to avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

Background

3    The first applicant is a citizen of India. She applied for a visa on 27 November 2015, identifying her sponsoring employer as N K Haider Pty Ltd. Mr Singh, the first applicant’s husband, was listed as a dependent applicant.

4    On 27 and 30 January 2017, the Department invited the applicant to comment on information that the sponsor did not have an approved nomination, and therefore her visa application was unlikely to be successful. The applicant did not respond to either invitation.

5    On 1 March 2017, the delegate refused the grant of the visa. The delegate was not satisfied that the applicant was the subject of an approved nomination, and therefore that the applicant did not satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

6    On 20 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

7    On 28 September 2017, the Tribunal wrote to the first applicant and invited her to comment on the validity of the application for review. The Tribunal stated that it was of the view that the application was not valid because, at the time the review application was lodged, the first applicant was not identified in a nomination under s 140GB of the Migration Act 1958 (Cth) (Act) that was approved or pending. The Tribunal also indicated that there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s 140E of the Act, or a decision not to approve the nomination under s 140GB of the Act. The first applicant did not provide a response.

Decision of the Tribunal

8    The Tribunal made its decision on 26 October 2017. The Tribunal observed that it was necessary to have regard to s 338(2)(d) of the Act which relevantly provides:

Definition of Part 5 – reviewable decision

…

(2) 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 a Part 5-reviewable decision if:

…

(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or

(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or

(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.

9    The Tribunal concluded that it did not have jurisdiction to review the delegate’s decision because, in summary:

    It had jurisdiction to review a decision under the Act if an application was validly made under ss 347 or 412 of the Act.

    Sections 338 and 411 of the Act and r 4.02(4) of the Regulations set out the range of decisions under the Act that were reviewable by the Tribunal.

    For an applicant who claimed to have been sponsored by a standard business sponsor, a nomination for an occupation in relation to the applicant must have been approved under s 140GB of the Act, and the nomination was made by a person who was a standard business sponsor at the time the nomination was approved (cl 457.223(4)(a) of the Regulations): Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 at [95]-[96].

    A decision was only reviewable in circumstances where:

•    (a) the applicant was identified in a nomination under s 140GB by an approved sponsor (s 338(2)(d)(i)); or

•    (b) there was a pending application for review of a decision not to approve the standard business sponsor under s 140E, or a pending review of a decision not to approve the nomination under s 140GB (s 338(2)(d)(ii)).

    There was no pending review of the nomination refusal before the Tribunal.

    At the time the application for review was made, the first applicant was not sponsored by an approved sponsor and no review of a decision not to approve the sponsor was pending.

    The first applicant was not sponsored by the sponsor at the time the review application was lodged.

    Even if the sponsor was an approved business sponsor, the first applicant did not hold an approved nomination for a specific position by the sponsor, nor was there a pending review of a decision to refuse a nomination.

    There was no evidence that the first applicant had another relevant sponsor or that there was any relevant sponsorship pending in the Tribunal.

    It followed that the applicants did not meet the requirements of s 338(2)(d) of the Act, the delegate’s decision was not reviewable, and in such circumstances the Tribunal did not have jurisdiction to determine the review.

Decision of Federal Circuit court

10    The applicants sought review of the decision of the Tribunal in the Federal Circuit Court. The application did not specify the relief sought or any grounds of review.

11    After summarising relevant facts the primary Judge observed:

10.    It was the case that there was no pending application for review before the tribunal of either a decision not to approve the sponsor under section 140E, nor was there a decision not to approve the nomination under section 140GB of the Act.

11.    There also was no pending review of the nomination refusal before the tribunal. At [9] the tribunal found that at the time the application to review the decision to refuse to grant the visas was made, the applicants were not “sponsored by an approved sponsor”, and that no review of the decision not to approve the sponsor was pending. That finding necessarily had the effect of establishing that the first applicant was not sponsored by the prospective employer identified in the application. There was never any approved nomination.

12    His Honour concluded that, in the circumstances, no jurisdictional error in respect of the Tribunal’s finding was demonstrated. His Honour was satisfied that the applicant raised no arguable case for the relief claimed, and accordingly dismissed the application pursuant to rule 44.12 of the Federal Circuit Court Rules.

Application for extension of time and leave to appeal

13    In the application filed on 28 November 2018 the applicants sought leave to appeal on the following grounds:

1.    That all relevant material was not taken into account.

2.    That I was disadvantaged in that I was not legally represented I could not understand the court process.

3.    (Appellant will be able to provide further particulars of the grounds of appeal when the Federal Circuit Court provides Reasons for the Decision).

14    It is not in dispute that the decision of the primary Judge was an interlocutory decision, hence leave to appeal is required. Leave to appeal generally requires the Court to consider:

    Whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court, and

    Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397)

15    Further, rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days of the date on which the judgment was pronounced. In this case his Honour’s decision was given ex tempore on 7 November 2018. It follows that it was necessary that any application for leave to appeal be filed by 21 November 2018. In this case the application for leave was filed out of time on 28 November 2018.

16    Relevant factors for the Court to take into account include the extent of the delay in filing the application, the explanation for the delay, any prejudice a respondent might suffer because of the delay and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305 at [348]-[349].

17    The notice of appeal on which the applicants propose to rely contains identical terms to the grounds of the application for leave to appeal and extension of time.

18    In this case the Minister not assert any prejudice for the delay in filing. I also note that the first applicant asserts that she understood that a notice of appeal must be filed within 21 days of the date of judgment. As a general proposition ignorance of time limits does not constitute a satisfactory explanation for delay.

19    Fundamentally, however, I am satisfied that the application for leave to appeal and extension of time ought be refused because the proposed substantive appeal is without merit. The three draft grounds of appeal raised fail to reveal any arguable doubt or error in the primary Judge’s decision. In particular:

    The first draft ground of appeal is a vague assertion of error and in its present form is meaningless.

    In respect of the second draft ground of appeal, while I note that the first language of the applicants is not English, and it may be that they are not experienced in Court process, nonetheless there is no statutory right to legal representation. There is no indication from the primary judgment that the applicants raised any issue with his Honour in relation to their ability to represent themselves. In my view this ground has no merit.

    The third draft ground has no substance, particularly in circumstances where further particulars were not provided.

20    At the hearing today the first applicant appeared in person, without the need for an interpreter. She submitted that she would like time to obtain more documents to support her application. When I asked her about the decision of the Tribunal, in particular its’ finding that her nominated employer was not an “approved sponsor” within the meaning of the Regulations, the first applicant was unable to assist the Court.

21    In my view the application for leave and extension of time has no merit, and should be dismissed with costs.

Associate:

Dated:    16 August 2019