FEDERAL COURT OF AUSTRALIA

Adil v Minister for Immigration, Citizenship, Multicultural Services and Migrant Affairs [2019] FCA 1787

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Multicultural Services and Migrant Affairs”.

2.    The time within which the appellant may file a notice of appeal is extended to 27 June 2019, being the date upon which the Court received the appellant’s draft notice of appeal.

3.    The appellant’s draft notice of appeal stand as his notice of appeal and the requirement to file and serve a notice of appeal is dispensed with.

4.    The appeal be dismissed.

5.    The appellant pay the costs of the first respondent, to be taxed.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant seeks an extension of time within which to file a notice of appeal from final orders of the Federal Circuit Court made 20 May 2019, by which his application to that Court for judicial review of a decision of the Administrative Appeals Tribunal was dismissed with costs. The application for an extension of time was filed on 27 June 2019, and therefore ten days after the 28 day period prescribed by rule 36.03 of the Federal Court Rules 2011 (Cth) expired. The delay is not lengthy, and the first respondent (the Minister) did not allege any specific prejudice.

2    By orders made 4 October 2019, the Court directed that upon the hearing of the application for an extension of time, the parties be prepared to present full argument, as if on appeal. The Court also made directions for the filing of written submissions by the applicant, and by the Minister, and ordered that the Minister prepare an appeal book. The Minister has filed and served written submissions, and an appeal book. The applicant, who is unrepresented, relied on a short written submission that he attached to his draft notice of appeal.

The applicant’s temporary visa

3    On 5 February 2014 the applicant was granted a temporary visa which was styled –

(a)    Temporary Business Entry (Class UC),

(b)    Temporary Work (Skilled) (Subclass 457).

4    The visa was granted on the basis of the applicant’s employment as a café or restaurant manager. The applicant’s sponsor was Noodle Hut Halal Pty Ltd (Noodle Hut). The notice of grant of the applicant’s visa specified that the visa expired on 5 February 2018.

5    On 8 January 2016, the applicant was issued with a notice of intention to consider cancellation of the visa pursuant to the power in s 116(1)(b) of the Migration Act 1958 (Cth) on the ground that the applicant had not complied with a condition of the visa. The visa was issued subject to conditions, which included condition 8107, the terms of which were prescribed by schedule 8 of the Migration Regulations 1994 (Cth). At the relevant time, condition 8107(3)(b) provided that –

if the holder ceases employment, then the period during which the holder ceases employment must not exceed 90 consecutive days

6    By the notice, the applicant was informed that the Department had received notification from his sponsor and employer that he had ceased employment with it, effective 20 August 2015, and that therefore he appeared to have ceased employment for a period exceeding 90 consecutive days in breach of visa condition 8107.

7    On 15 January 2016, the applicant through his migration agent acknowledged that the applicant’s visa was subject to condition 8107, and also acknowledged that he had ceased working for his sponsor for a period exceeding 90 consecutive days, which was in breach of condition 8107. However, the applicant claimed that this breach had occurred as a result of circumstances which were not within his control, and referred to an application by a new sponsor, AMFAH (Aust) Pty Ltd (AMFAH) that had been lodged on 9 October 2015, which was within 90 days of cessation of the applicant’s employment. The applicant requested that any decision to cancel his visa be delayed pending a decision in relation to the nomination of the proposed new sponsor.

8    On 18 January 2016, a delegate of the Minister cancelled the applicant’s visa.

The decision of the Administrative Appeals Tribunal

9    On 20 January 2016, the applicant filed an application with the Administrative Appeals Tribunal seeking merits review of the delegate’s decision.

10    On 16 March 2016, the applicant’s migration agent made written submissions to the Tribunal. Those submissions accepted that, effective from 20 August 2015, Noodle Hut had ceased to employ the applicant, but submitted that on 9 October 2015 he had been recruited by a new sponsor, AMFAH. The submission stated, however, that on 19 February 2016 the nomination of AMFAH had been refused by the Department, which decision was also the subject of a separate application for merits review by the Tribunal.

11    On 29 June 2016, the applicant was invited by the Tribunal to attend a hearing on 17 August 2016, and he did so in the company of his migration agent. The Tribunal’s notes of the hearing on 17 August 2016 record that reasons were to be delayed until 19 September 2016, pending the “AAT nom Decision”.

12    By email dated 17 August 2016, the applicant’s migration agent informed the Tribunal that the Tribunal’s hearing in relation to the nomination decision had taken place on 23 June 2016.

13    On 20 September 2016 the applicant’s migration agent emailed the Tribunal and informed it that there was no update in relation to the nomination matter that was before the Tribunal.

14    A case note of the Tribunal dated 26 October 2016 records the following –

As directed by the Member, contacted Rep and advised that the Member is planning to finalise this case on 31 October and invite any submissions as to whether the applicant is now the subject of an approved nomination by cob Friday 28 October. The Tribunal notes that it heard this matter on 17 August, over 2 months ago and, at the applicant's request, deferred its decision making while a nomination was being reviewed. However the applicant has made no contact with the Tribunal in relation to this matter and the Tribunal does not consider a further delay in finalising this case to be warranted.

Rep advised that she will be seeking instructions from her client and the nominator about any further action and will let the Tribunal know by the 28 October. Advised that I also sent an email to the Rep with the Member's instructions above.

15    As stated in the case note, an officer of the Tribunal sent an email to the applicant’s migration agent on 26 October 2016, stating (inter alia) –

Please note that the Member is planning to finalise this case on 31 October 2016 and invite [sic] any submissions as to whether the applicant is now the subject of an approved nomination by close of business Friday, 28 October 2016.

The Tribunal notes that it heard this matter on 17 August 2016, over two months ago and, at the applicant’s request, deferred its decision making while a nomination was being reviewed. However, the applicant has made no contact with the Tribunal in relation to this matter and the Tribunal does not consider a further delay in finalising this case to be warranted.

16    The following day, 27 October 2017, the applicant’s migration agent responded by email stating that she no longer acted for the applicant, and requested that all correspondence be sent to the applicant directly. Later that day, the applicant sent an email to the Tribunal stating that his lawyer was no longer acting on his behalf, and requested some more time to arrange another lawyer to assist him.

17    On 21 December 2016, the Tribunal sent an email to the applicant stating (inter alia) –

…

The Tribunal will be making a decision on his [sic] case in the week commencing 3 January 2017 and that any further submissions received before 3 January 2017 will be considered by the Member.

The Member notes that you have made no contact with the Tribunal since seeking additional time almost 2 months ago. The Member will not further delay making a decision beyond this time given the very considerable time you have had since the hearing.

18    On 2 January 2017, the applicant responded to the Tribunal by email stating –

I am writing this email in reply to the invitation to comment on Mohammed Sharf Uddin Adil’s 457 visa. My gratitude to the support provided by the tribunal. I am clarifying my position and very unusual condition and hardship that I am trying to overcome in regard to my visa.

Recently, I have been responded to show the fulfilment conditions of my visa, as the nomination was not approved with the previous sponsor I have been living in enormous stress and depression that resulted from the cancellation of the nomination and due to huge burden of debt. As such, I am trying to survive in tough financial conditions with no work rights and an uncertain future that totally rely in your hands. Moreover, I had my wedding ceremony cancelled because of my present visa condition that my family members and friends are well aware of in Melbourne. I truly believe in the fate that can not always be against my success and happiness, I am trying to be positive and hoping that I will overcome these tough days.

Apparently, As I cannot propagate with my previous sponsor that does not fulfil the immigration requirements. I have moved on and able to secure a prospective job after many interviews that I have faced with other companies, the only reason that I am unable to contact you immediately because my immigration lawyer has been busy with the Christmas festivities and New year break. I am very eager to have my prosperous Visa approval as I am confident and thorough with my work skills. I would like to request the tribunal to allow me to be presented by the lawyer that will be available soon with proper submission of the documentation. I have summed up my feeling and presented the situation please consider my humble request and show mercy and kindness as I am in need of your sympathy.

I am very thankful to you in dealing with my uneven immigration case very carefully and just and I am very genuinely requesting you to provide me some grace time so that I can have my proper presentation.

19    On 11 January 2017, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa. In its decision record, the Tribunal recorded that it had agreed to delay making its decision until 19 September 2016, but that the applicant had not advised the Tribunal by that time that he was the subject of an approved nomination. The Tribunal also recorded that it wrote to the applicant’s migration agent on 26 October 2016 inviting any submissions as to whether the applicant was the subject of an approved nomination. The Tribunal recorded that following the applicant’s advice of 27 October 2016 that his lawyer was no longer acting for him, the applicant had not initiated any further contact with the Tribunal. Finally, the Tribunal recorded the substance of its communication to the applicant on 21 December 2016, and the applicant’s response of 2 January 2017 referred to above.

20    The Tribunal determined not to delay further its decision for the following reasons –

37.    The Tribunal has considered this request to further delay its decision making but has decided to proceed given that the applicant has provided no evidence that he is now the subject of an approved nomination or even provided details of any proposed sponsor. Given that 20 weeks has now passed since the hearing, the Tribunal does not consider that further delaying this decision is appropriate given the significant period of time the applicant has already been granted. The Tribunal places significant weight on the fact that the applicant has provided no evidence of when or if he might be the subject of an approved nomination.

38.    In deciding to proceed to finalisation the Tribunal notes the judicial authority of the High Court of Australia when considering the Tribunal's discretion in relation to adjournments: MIAC v Li [2013] HCA 18. The Court discussed a range of factors that should be considered. Among other things the Court said that "it may be accepted that the Tribunal is to act with some efficiency" (per Hayne, Kiefel and Bell JJ. at [80]); and that the Tribunal "is entitled to have regard to legislative objectives including timeliness in its processes" (per French CJ at [10])).

39.    In any case the applicant would be unable to continue to meet the requirements for a Subclass 457 visa, given he has not provided any evidence to the Tribunal of a sponsor and an approved business nomination in respect of him. It is a requirement of cl.457.223(4)(a) that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased.

40.    The Tribunal finds that the purpose of the applicant's stay in Australia was to work as a Café or Restaurant Manager for Noddle [sic] Hut Halal Ply Ltd on a temporary basis. The applicant is no longer in this employment.

The application to the Federal Circuit Court of Australia

21    On 7 February 2017, the applicant filed an application with the Federal Circuit Court seeking judicial review of the Tribunal’s decision. The applicant’s grounds of review were stated in the application as follows –

Lack of natural justice from Department of Immigration and Border Protection, Administrative Appeel [sic] Tribunal

…

As I requested to the Tribunal to allow me to be presented by the lawyer that will be available soon with proper submission because my previous lawyers don’t want to act on behalf of me and same time the christmas holidays stated so I can't find other lawyers so I asked tribunal to provide more time so that I can find new lawyer because of holidays I can't able to find lawyers and new sponsor. So my lawyer left me when the tribunal ask to comment and I don't have enough time and I have already work for one and half Year as a restaurant manager an there is no problem in my application it all happens because of business close down if I 1vould have given more time I can find new sponsor and save my 457 visa.' (sic)

22    The applicant was unrepresented before the Federal Circuit Court. The hearing of the proceeding took place on 20 May 2019. The primary judge delivered ex tempore reasons and dismissed the applicant’s application. Written reasons were published on 30 July 2019, more than two months later.

23    At [20] of the primary judge’s reasons, his Honour recorded that there was no contest about the applicant’s non-compliance with condition 8107 of his visa. His Honour noted that the issue raised by the applicant concerned his request to the Tribunal for additional time. The primary judge held that the applicant had failed to establish any relevant error by the Tribunal, and reasoned as follows –

23.    The request for the adjournment sought by the Applicant was expressly dealt with by the Tribunal. The Tribunal expressly considered the final request but decided to proceed to make a decision on 11 January 2017. The Tribunal is given the power and discretion to determine whether to adjourn proceedings, and the law, as I have indicated, requires that it exercise that discretion reasonably.

24.    That the Tribunal dealt with this matter expressly is to be noted, in particular, from paragraphs 36 to 38 of its decision record which is reproduced at page 135 of the Court Book. I do not here repeat the essence of those paragraphs but refer to them in full. When those paragraphs are looked at, it is apparent that the Tribunal reasoned that 20 weeks had passed since the hearing and that it did not consider that further delaying the decision was appropriate given the significant period of time that the Applicant had already been granted.

25.    Weight was placed by the Tribunal on the fact that the Applicant provided no evidence of when or if he might be the subject of an approved nomination, noting the need for efficiency and timeliness in the Tribunal’s processes. The Tribunal also had regard to the substance of the reasons for a deferment put to it by the Applicant. The Tribunal then provided reasons in support of the refusal to allow the Applicant further time. This was not a case in which it lacked an evident and intelligible justification for doing so.

The application before this Court

24    In support of his application for an extension of time within which to appeal, the applicant prepared a draft notice of appeal in which he set out proposed grounds, which I shall consider in turn.

Ground 1 – The Federal Circuit Court erred in dismissing the case unfairly without any evidence

25    On the following page of the draft notice of appeal, the applicant set out the following, which I shall treat as particulars of his proposed ground 1 of appeal –

Evidence of facts Ignored

•    The Honourable Judge ought to have seen that the standard of proof applied should be the criminal standard of beyond reasonable doubt is not applicable in the present case to the applicant.

•    The appellant has been facing serious Financial hardship and family health issues including his health issues since the last year. The fact that the relevant evidence has been provided has been ignored before making a dismissal decision.

•    The Federal Circuit Court erred in not providing a fair Trail [sic] to the Appellants

•    The Federal Circuit Court did not make any findings on the evidence and submissions made by the applicant

•    It is unclear on what basis and evidence the Federal Circuit Court finds that the Tribunal was correct in reaching the conclusion.

•    The Federal Circuit Court did not provide any reason for arriving at the conclusion set out.

26    In relation to the first point, I do not accept that the application of any standard of proof was material to the primary judge’s decision. The primary judge was concerned with the legality of the Tribunal’s decision having regard to the grounds of the applicant’s application for judicial review before the Federal Circuit Court. That was primarily directed to the applicant’s request to the Tribunal for more time. The evaluation of that claim did not involve the application of any standard of proof to any facts in issue.

27    As to the applicant’s claims of financial hardship, and family health issues, these matters were referred to by the applicant in his email of 2 January 2017 to the Tribunal, set out at [17] above, and they were specifically referred to by the Tribunal at [36] of its reasons. They were not ignored by the Tribunal.

28    The third particular, which is a claim that the Federal Circuit Court did not provide a “fair trial” to the applicant is undeveloped, and is without any apparent foundation.

29    The claim in the fourth particular is without substance. The merits of the applicant’s underlying application for review of the decision to cancel his visa were not in issue before the Federal Circuit Court. Furthermore, no particular evidence or submission of the applicant which it is alleged the Federal Circuit Court did not take into account has been identified.

30    As to the fifth and sixth particulars, the claims that the reasoning of the Federal Circuit Court was unclear, and that the Court did not provide any reasons for arriving at its conclusions must be rejected. I have set out the material part of the primary judge’s reasons at [22] above.

Ground 2 – Ignored that the visa applicant has not been provided opportunity in the hearing

31    This ground is vague and imprecise. It is not clear whether the applicant’s complaint is directed to the Federal Circuit Court, or to the Tribunal. In either case, the ground is undeveloped, and has no apparent foundation.

Ground 3 – The Federal Circuit Court erred in acknowledging the appellants [sic] situation and therefore denial of natural justice

32    In support of this ground, the applicant set out in his draft notice of appeal the following particulars –

Denial of Natural Justice:

The applicant believes that he was denied the Natural justice procedural fairness by Federal Circuit Court while making my decision. The notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of my case has not been followed by the Federal Circuit Court. The statutory power must be exercised fairly in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be considered as legitimate consideration and I believe that the Tribunal and the Federal Circuit Court Ignored it in my case as an individual.

33    The third ground of appeal, as framed, is confusing. The primary judge heard the applicant, and addressed his grounds of review. His Honour recorded at [13] of his reasons that –

The matter proceeded for hearing before me today, and the Applicant was unrepresented. When I asked the Applicant what his case was about, he said, in effect, that his complaint was that he had not been granted sufficient time to obtain a new lawyer because of the Christmas period. …

34    There is no support for any claim that the applicant was not treated fairly by the primary judge. The primary judge gave consideration to the case which the applicant advanced.

Additional ground

35    There is a final paragraph in the applicant’s notice of appeal to this Court which is in the following terms –

It is submitted that the determination of the Federal Circuit Court is unsafe and unlawful and materially erred in law and that an order allowing this appeal by setting aside the orders of the Federal Circuit Court and remitting the matter either to the Federal Circuit Court for rehearing according to law may be granted.

36    I shall treat this claim as a generalised ground of appeal that the primary judge was in error in failing to uphold the applicant’s claim to that court that the Tribunal fell into jurisdictional error by failing to afford the applicant more time, as he had requested in his email to the Tribunal of 2 January 2017.

37    The Tribunal is required to act according to substantial justice and the merits of the case, and must act in a way that is fair and just: Migration Act 1958 (Cth), s 353(2), s 357A(3). The Tribunal may adjourn the review from time to time: s 363(1)(b). A refusal of a request to delay making a decision may amount to a legally unreasonable exercise of a discretionary power by the Tribunal, or a denial of procedural fairness: see Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [19] (French CJ), [58], [74], [76], [79], [85] (Hayne, Kiefel and Bell JJ), [101], [124] (Gageler J) (Li).

38    I am not persuaded that in proceeding to determine the applicant’s application for review without affording him further time, the Tribunal made any legal error, still less an error of a jurisdictional kind. The Tribunal squarely addressed the applicant’s request to defer its decision. The primary reason for deciding not to delay further the making of a decision was that the applicant had already been granted a significant period of time in order to furnish evidence that he had obtained an approved nomination. That was the specific purpose of the initial deferral of the decision on 16 August 2016. Further, the email from the Tribunal on 26 October 2016 gave the applicant further notice that the Tribunal would proceed to make a determination and invited submissions as to whether the applicant was the subject of an approved nomination. Although the applicant referred in his email of 2 January 2017 to having “moved on and able to secure a prospective job”, there was nothing in the email that indicated that the applicant had secured employment that was the subject of an approved nomination, and the applicant’s email when read as a whole indicates to the contrary.

39    The Tribunal considered that the absence of an approved nomination was fatal to the outcome of the applicant’s application for review because the applicant, having ceased his employment with Noodle Hut, had not provided any evidence of employment by another approved sponsor. The Tribunal noted that the sub-class 457 visa was a temporary visa of limited duration relating to work for a particular sponsor in a skilled occupation. The Tribunal found that the applicant had not, in the period of 16 months since he ceased employment with Noodle Hut, been able to secure another approved nomination with an alternative employer. The Tribunal was not obliged to continue to afford opportunities to the applicant to secure employment that was subject to an approved nomination: Li at [82].

40    In these circumstances, and having regard to the history of deferral, I consider that the Tribunal’s decision to proceed to make a determination on review was a reasonable choice that was open to it. The Tribunal’s reasons for doing so afforded an evident and intelligible justification for its decision and did not amount to a denial of procedural fairness having regard to the previous opportunities which the Tribunal had afforded to the applicant to secure employment that was the subject of an approved nomination. The applicant has not shown that the Tribunal’s decision not to defer making its determination on review was legally unreasonable, or that it amounted to a denial of procedural fairness. It follows that I consider that there was no error in the primary judge’s decision to reject the applicant’s application for judicial review.

Conclusions

41    I have decided to extend the time within which the applicant may appeal, but to dismiss the appeal.

42    In relation to the application for extension of time, I have given consideration to the material carefully, and not at a mere impressionistic level: cf, MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62], approved on appeal in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478. The reasons for this approach include that I was initially troubled that the Tribunal’s notice to the applicant of its intention to deliver its decision was given on Wednesday 21 December 2016, which was only two clear business days before Christmas. The period commencing 3 January 2017 during which the Tribunal foreshadowed it would make its decision commenced on the day after the New Year public holiday. Despite the time of year, the applicant provided a response. That response confirmed that he had been unable to obtain employment with a sponsor the subject of an approved nomination, notwithstanding the passage of time since the hearing on 17 August 2016, and the Tribunal’s email of 26 October 2016. As I have indicated, the Tribunal gave consideration to that response and determined not to afford the applicant any further time for the reasons to which I have referred at [19] above and in respect of which I consider there to be no jurisdictional error. Having given the parties the opportunity to present full argument, and after an evaluation of the merits of the proposed appeal, it would not be appropriate to revert to a consideration of the merits at an impressionistic level for the purposes of the application for an extension of time.

43    A second consideration is that the primary judge’s written reasons were not published until after the time for appeal expired. I made directions on 4 October 2019 giving the applicant the opportunity to file an amended draft notice of appeal, but no amended document was filed. The Federal Circuit Court is unquestionably a very busy court, and there would have been many demands on the primary judge which likely contributed to the delay in publishing written reasons. However, it is undesirable that a litigant not have a judge’s revised reasons for final orders available while the time for appeal is running: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26]. It would have been open to the primary judge to make an order under rule 36.03(b) of the Federal Court Rules deferring the commencement of the date from which the time for appeal commences to run: see also, CEV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12].

44    I will make an order that the time for filing the notice of appeal be extended, but I shall dismiss the appeal.

Associate:

Dated:    20 November 2019