FEDERAL COURT OF AUSTRALIA

Barua v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1946

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is an appeal from the decision of the Federal Circuit Court in Barua & Ors v Minister for Immigration & Anor [2018] FCCA 2841 delivered on 28 August 2018. In that decision, the primary Judge dismissed the appellants’ application for review of a decision of the Administrative Appeals Tribunal (Tribunal) that affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant Mr Barua, the first appellant, a Temporary Work (Skilled) (Subclass 457) visa (temporary work visa).

2    I note that Mr Barua is a citizen of Bangladesh and applied for a temporary work visa in October 2014 sponsored by Bulk Industrial Trade Pty Ltd. The second and third appellants are citizens of Canada and are Mr Barua’s dependent teenage children.

3    Relevant to the issues in this appeal is cl 457.223 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) which at relevant times stipulated the criteria to be satisfied for the grant of a temporary work visa. Clause 457.223 provided requirements relating to applications for temporary work visas that are sponsored by businesses:

457.22 – Criteria to be satisfied at time of decision

…

457.223

(1)    The applicant meets the requirements of subclause (2) or (4).

…

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; and

(aa)     the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and

(ba)     either:

(i)     the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

(ii)     each of the following applies:

(A)     the applicant is employed to work in the nominated occupation;

(B)     if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

(C)     if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

(d)     the Minister is satisfied that:

(i)     the applicant’s intention to perform the occupation is genuine; and

(ii)     the position associated with the nominated occupation is genuine; and

(da)     the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

(e)     if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation - the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

(ea)     if:

(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

(ii)    in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

(eb)    if:

(i)    the applicant is not an exempt applicant; and

(ii)    subclause (6) does not apply to the applicant; and

(iii)    at least 1 of subparagraphs (ea)(i) and (ii) does not apply;

the applicant:

(iv)    has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

(ec)    if the Minister requires the applicant to demonstrate his or her English language proficiency - the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

(f)    either:

(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

(ii)    it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

…

(11)    In subclause (4):

exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

4    Of further relevance to Mr Barua’s circumstances was reg 2.75 of the Regulations which at relevant times provided:

2.75    Period of approval of nomination – Subclass 457 (Temporary Work (Skilled)) visa

(1)    This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.

(2)    An approval of a nomination ceases on the earliest of:

(a)    the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

(b)    12 months after the day on which the nomination is approved; and

(c)    the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

(d)    if the approval of the nomination is given to a standard business sponsor – 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

(e)    if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act – the day on which the person’s approval as a standard business sponsor is cancelled; and

(f)    if the approval of the nomination is given to a party to a work agreement (other than a Minister) – the day on which the work agreement ceases.

5    Bulk Industrial Trade Pty Ltd’s approved nomination ceased on 6 January 2016. On 15 January 2016, the Department of Immigration and Border Protection (Department) wrote to Mr Barua, stating:

…One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. Your prospective employer, BULK INDUSTRIAL TRADE PTY LTD ATF SAIKAT PRIYANKA FAMILY TRUST, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful…

6    The Department invited Mr Barua to, inter alia, comment on his intentions regarding his visa application or provide any other information in response to the adverse information. On 15 January 2016, Mr Barua’s representative replied to the Department acknowledging its request for:

… some additional evidence/information as the sponsorås Business Nomination approval has expired and is no longer valid.”

7    The letter continued:

…

It is our contention that our client and we, as his legal representatives, have done everything as requested by the law and regulations in relation to this application and we hope that you will be able to finalise this application.

…

(Errors in original.)

8    On 29 February 2016 the Minister’s delegate refused Mr Barua’s temporary work visa. In summary, the delegate observed that, as Mr Barua had not provided evidence that he was the subject of an approved employer nomination, the delegate was therefore not satisfied that Mr Barua met the criteria in cl 457.223(4)(a) of the Regulations. A separate decision was also made on 29 February 2016 refusing Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subsequent Entrant) (Subclass 457) visas for the second and third appellants as they, being Mr Barua’s dependants, did not satisfy the relevant provision of the Regulations.

9    I note for completeness that Bulk Industrial Trade Pty Ltd applied to the Department for a new nomination on 9 March 2016 (new business nomination).

At the Tribunal

10    On 15 March 2016 the appellants filed an application for review at the Tribunal in respect of the delegate’s decisions to refuse the temporary work visas.

11    On 18 November 2016 the appellants’ representative wrote to the Tribunal requesting that the processing of their applications be given priority due to concerns that the new business nomination might expire before the Tribunal heard the case, thus defeating the purpose of the review. On 29 November 2016 the Tribunal responded to the request, explaining that it did not consider the appellants’ circumstances such that they should be given priority over other cases because:

…There is insufficient evidence to suggest your circumstances differ significantly from those of any other applicant applying for review within the same visa subclass. Other applicants in this visa subclass may also be in a position where their current nomination is due to expire whilst a review is pending before the Tribunal…

12    The appellants attended an oral hearing at the Tribunal on 18 May 2017 and were represented in relation to the review by their registered migration agent. In summary, the Tribunal in its reasons noted in respect of Mr Barua that he:

    was previously the subject of an approved nomination that had expired on 13 May 2017 prior to the hearing;

    was invited to the hearing on 13 March 2017, but did not arrange for a new nomination application to be lodged prior to its expiry; and

    stated that he was unable to afford the cost of an further nomination application; however, this also raised concern that the sponsor company may have breached reg 2.87 of the Regulations.

13    Ultimately, the Tribunal:

    declined to give Mr Barua further time for his sponsor to lodge a fresh application;

    held that Mr Barua did not meet the requirements prescribed by cl 457.223(4)(a);

    affirmed the decision not to grant Mr Barua the temporary business visa; and

    held that it did not have jurisdiction with respect to the second and third appellants.

At the Federal Circuit Court

14    On 26 May 2017, the appellants filed an application for review at the Federal Circuit Court which was later amended on 17 October 2017. The appellants relied on one ground of review in the amended application:

1.    The Second Respondent’s decision was affected by jurisdictional error in that:

1.    It did not act according to substantial justice and the merits of the case in breach of section 353 of the Migration Act 1958 (Act) and:

a)    It asked or focused on the wrong question;

b)    It ignored relevant material and facts;

c)    It failed or substantially failed to exercise the authority or powers given to it under the Act;

d)    The hearing, at the very least, should have been adjourned for seven (7) days to allow a third nomination to be lodged by the Sponsor (two earlier nomination grants having elapsed).

2.    It did not act in a way that is fair and just, thereby denying natural justice and violating sections 357A and 359AA of the Act.

(Original numbering.)

15    At [5] of the primary judgment, his Honour set out the principles and material facts relevant to the proceeding:

… in order for the first applicant to be granted a subclass 457 visa, the applicant must have satisfied each of the criteria in 457.223(4)(a). The criteria have not been satisfied in this case, in that the approval of the nomination of the sponsor for the first applicant ceased on 13 May 2017. It was common ground at the hearing today that the approval as a sponsor, obtained by Bulk Industrial Trade Pty Ltd, was granted on 13 May 2016. By Regulation 2.75(2)(b), such approval ceased 12 months after the date of approval, in this case on 13 May 2017.

16    His Honour continued:

8.    It was submitted on behalf of the applicant that, based upon the provisions of section 360 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal had fallen into jurisdictional error by failing to allow the applicant further time to put his house in order in relation to the approval of a fresh nomination application on the part of the sponsored company. Reliance was placed upon the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) and, in particular, to the judgment of Kirby J at [82]-[83].

9.    In that regard, the court had to consider whether prehearing delay had been established one way or another, and found that that was a question which could only be based upon factual considerations. The court is not permitted to undertake a merits review of the matters which were considered by the Tribunal but, rather, to assess whether, in its deliberations or conduct of proceedings, the Tribunal had fallen into jurisdictional error. In that regard, no jurisdictional error had been demonstrated by reason of any alleged delay in the bringing of the matter before the Tribunal for hearing.

10.    Secondly, it is apparent from the Tribunal’s reasons, in paragraphs 13 – 15 inclusive, that the Tribunal was alert not only to the expiration of the sponsor approval, but also to the fact that no application for a new sponsor approval had been made. It was conceded by counsel on behalf of the first applicant that there was no evidence before the Tribunal on 18 May 2017 which suggested, one way or the other, whether any step had been taken by the sponsor company to make any further application for approval as a sponsor, or indeed, whether the company had any intention to do so.

11.    The Tribunal considered that the applicant had had ample opportunity between 13 March 2017 and 18 May 2017 to arrange for the sponsor to at least lodge a fresh nomination application, but noted that the sponsor had not done so. The Tribunal further left open, by inference, the opportunity of an adjournment being the subject of consideration if an application for approval as a sponsor had been lodged, but not approved, by the time of the hearing, but such consideration was otiose in circumstances where no such application had been made.

12.    The Tribunal, in those circumstances, found properly that the first applicant did not meet the requirements of the criterion as set out in clause 457.223(4)(a) and, accordingly, it refused the application for the visa.

17    The primary Judge at [14] distinguished Mr Barua’s case from Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. His Honour said:

14.    What is different in this case, however, is the fact that at the time of the subject hearing before the Tribunal, not only did the first applicant not satisfy the criteria, but he was not even in the position of being able to submit to the Tribunal that a fresh sponsorship application had even been filed. In a Li sense, the applicant was unable to submit that he had good prospects of the sponsorship application either being approved, or, that it was likely to be approved. This case is clearly distinguishable from Li.

18    His Honour was not satisfied that any jurisdiction error was established and therefore dismissed the application for review (at [15]).

Application for adjournment

19    A week before the hearing of the appeal the appellants sought to have the substantive hearing of the appeal adjourned. On 10 June 2019 the Federal Court received from Mr Barua a letter dated 9 June 2019 titled “REQUEST FOR ADJOURNMENT OF COURT HEARINGS ON 18 June 2019”. In the letter, Mr Barua requested that the proceeding be adjourned “to a next date which would be suitable somewhere next year 2020” to allow him the opportunity to find a “reputable and appropriate Barrister”.

20    On 17 June 2019, the Queensland Registry received via email a scanned letter from Mr Barua dated same titled “Request for an Adjournment of proceedings on 18 June 2019 on case number: QUD620/2018”. Mr Barua wrote to the Registry’s Senior Legal Case Manager:

Dear Sir/ Madam,

With due respect and humble submissions I Rathendra Barua, the appellant of the the above captioned case do hereby request an adjournment on the proceeding date 18 June 2019 to a future date sometimes in the next year 2020 due to the fact that I shall require an adjournment as I do not currently have any legal counsel to represent my case and shall require an appropriate Law Firm to represent my proceedings as the legal rights of the appellant as per Australian Law Reform Commission under Clause 10. "Fair TRIAL" " RIGHT TO LAWYER" under rule 10 and 10.10.109 and other sub rules under 10.111-10.114 clearly stated that there is a legal right to the counsel or, lawyer until there is any serious crime issue or, any public interest of the case and whether any money or, expenses would be used in the Counselling or, not.

Here in this case there will be no harm or, losses neither any cost involvement would be done from the Government sector and the appellant is also happy to bear the costs of hearings that had been paid off and no such damages would occur in terms of public interest neither the Federal Court system.

I have enclosed here with all the necessary supporting documents to satisfy the criterion to grant me an adjournment on the proceedings.

May I therefore request an adjournment of the proceedings and all other necessary submissions in this regard has been enclosed here with for your kind consideration and the Hon. Judge to decide and grant me and adjournment of the case proceedings on 18 June 2019 for which I shall be highly beneficial and obliged thereby.

Yours Truly,

[signed]

Rathendra Barua.

(Errors in original.)

21    Attached to the letter of 17 June 2019 was what appears to be an extract from an Australian Law Reform Commission report which discusses an individual’s right to a lawyer in the context of the right to a fair trial. I note that this extract is mainly concerned with criminal matters. Also attached to this letter was the transcript in Shrestha; Ghimire; Acharya v Minister for Immigration and Border Protection & Anor [2017] HCATrans 179, and various correspondence between the Court, Mr Barua and the legal representative for the first respondent.

22    On 17 June 2019, I directed that the matter remain listed and indicated that I was prepared to hear the adjournment application on the date the appeal was listed for hearing. The Registry’s Senior Legal Case Manager advised the parties as follows:

Dear Parties

The Registry received the attached document via email this afternoon in which the appellant requested an adjournment of tomorrow afternoon’s hearing.

Justice Collier has directed that the matter will remain listed tomorrow, 18 June 2019 at 2.15pm. Her Honour is content to hear the parties on the proposed application for adjournment in open Court. Therefore all parties should:

1.     be prepared to make submissions on the proposed application for adjournment; and

2.    be prepared for the full hearing to proceed if an adjournment is not granted.

Regards

23    At the hearing, Mr Barua provided a lengthy document which contained what appears to be written submissions in relation to the substantive proceedings and authorities. Mr Barua also made oral submissions in relation to his application for adjournment for a period of four to six months. In summary, Mr Barua submitted that he had a right to legal representation; that he had had lawyers but did not like them; that procedural fairness would favour the granting of the adjournment, that there was merit in his grounds of appeal; and that his opportunity to acquire legal representation in the period from when he was notified of the appeal has been compromised by his personal circumstance including health issues and working overseas. Mr Barua also submitted that he had a reasonable prospect of retaining lawyers to represent him, which distinguished his case from the other cases, and that he had no issue in relation to funds. Mr Barua further consented to the payment of costs to the Minister incurred as a result of the proposed adjournment.

24    The Minister opposed the application for adjournment, relying upon the affidavit of Ms Hannah Anderson, a lawyer in the employ of Clayton Utz representing the Minister in this proceeding, filed 18 June 2019. In her affidavit Ms Anderson set out a timeline of the correspondence between the parties.

25    The Minister also relied on WZARX v Minister for Immigration and Border Protection [2014] FCA 423, SZHTI v Minister for Immigration and Multicultural and Indigenous affairs [2006] FCA 702 and in particular Timu v Minister for Immigration and Border Protection [2018] FCAFC 161.

26    In WZARX, McKerracher J considered the rights of an appellant to legal representation noting:

[12]    The notice of appeal to this Court is confined to the argument that the appellant did not have a lawyer and could not ‘defend himself”. The Minister makes the point that his Honour’s order that the Minister show cause was made on 24 April 2013 with the final hearing being on 16 October 2013, leaving the appellant ample opportunity to arrange for legal representation if he wished. Further, the course followed by his Honour in granting an extension of time and identifying issues not advanced by the appellant was manifestly in favour of the appellant.

[13]    There is no automatic entitlement for an appellant to have legal representation in a civil claim of this or any other nature. The appellant explained that he had declined the opportunity for legal advice at a point in time when he anticipated being able to afford his own legal representation. By the time of the hearing before his Honour, he had been unable to do so. Be that as it may, this is not a ground of appeal on which the appellant can succeed.

(Emphasis added.)

27    Further, McKerracher J considered the observations of Flick J in SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30]-[31] where Flick J held:

[31]    Dietrich, it has been further concluded, has no application in respect to a decision of the Administrative Appeals Tribunal in deportation proceedings: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265, 101 FCR 20. Sackville, Marshall and Lehane JJ there declined to extend Dietrich so as to require the provision of legal representation to the appellant who had invoked the jurisdiction of the Tribunal when seeking review of a decision to deport him from Australia…

28    In SZHTI, Gyles J at [4] observed that:

…there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.

29    In SZQRU v Minster for Immigration & Citizenship [2012] FCA 1234, Katzmann J made a similar observation at [24]:

…There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it…

30    In Timu at [7] the Full Court said:

The primary judge refused the adjournment application on the following bases: Although Mr Timu raised an issue about his receipt of the Court’s email it appears that he in fact consulted one or more lawyers about his case. Having been aware of the scheduled date of the hearing for some months, Mr Timu took no steps to obtain legal advice or arrange legal representation for the hearing. Mr Timu was not entitled effectively to do nothing further to obtain legal representation. In all the circumstances it was not unreasonable to proceed with the hearing without granting an adjournment. Additional to these factors was the lack of obvious merit to the grounds put forward by Mr Timu. The grounds invite “merits review” and do not raise issues going to the identification of jurisdictional error by the Assistant Minister. Whether another lawyer might discover further grounds of review is speculative and that approach to adjournment is not appropriate.

31    After a brief adjournment I refused the application to adjourn the hearing of the appeal. I took the view that analogous circumstance to Timu existed in this case. Whilst Mr Barua may have had some personal circumstances which compromised his ability to retain lawyers, nonetheless he has had ample opportunity to seek legal advice and has, for various reasons of his own, chosen not to engage the lawyers with whom he has had discussions.

32    The parties were aware since December 2018 of the prospect of the appeal being listed for hearing. Notwithstanding the fact that the appellant is prepared to pay the costs of the Minister, that is not in itself a point. Costs do not necessarily answer the inconvenience to the other party of adjournment. The parties were put on notice that it was not a foregone conclusion that an adjournment would be granted, and that they should be prepared for the hearing of the appeal to proceed.

33    In such circumstances the adjournment was refused.

Appeal to the Federal Court

34    The appellants appeal from the whole of the primary judgement. They rely on the following six grounds of appeal, namely:

1.     The decision was infected with Jurisdictional error as the applicant were denied the procedural fairness by the decision makers failure to make a decisions in a timely manner and refusing to discuss the merits of the case.

2.    The Minister had a duty to revisit a decision, as we requested, due to the jurisdictional error in accordance with the principles of the "Bhardwaj Case" (Minister for Immigration and Multicultural affairs Vs Bhardwaj -(2002-)2009 CLR 597.

3.    The Honourable Judge found on the hearing that was a Jurisdictional Error but, without proper reason and particular relevant matters the Honourable Judge dismissed the court and even though the Second and Third Applicant was not given any judgement in AAT tribunal and the Judge just was reluctant to give any fairness decision despite asking the DIBP (Department of Immigration and Border protection) counsel about the judgement or, neither any decision was given at AAT hearing at the beginning and should be treated as Jurisdictional Error on the part on a whole and Federal court should consider the decision to be made in my favour to review the case .

4.    As being mentioned in addition the decision was also infected with Jurisdictional error as the Second Respondent wrongly refused to make a decision for Ms. Tisha Dhanabadi Barua and Mr. Thomas Denis Barua, claiming that no decision about their application has been made by the Department of Immigration and Broder Protection.

5.    The decision was infected by the Federal Circuit Court with Jurisdictional Error because it has produced upon wrong factual basis (allegedly provided non-genuine and forged documentation about work experiences from non- existing company/employer). This was completely a Jurisdictional Error as the company still is active in Thailand and the company is completely registered under the Thai Civil Jurisdiction which is legal and complete and true as per the documents enclosed in the last exhibits under the same file. The company was co0mpletely active and always an active at this moment as well but, due to the Jurisdictional error or, Linguistic difficulties from the Australian Embassy in Bangkok, Thailand the company information could not be found by the assessing agent in Australian Embassy which was completely a Jurisdictional Error on the system of DIBP (Department of Immigration and Border Protection).

6.    Requesting Federal Court to consider the previously served sworn Affidavit as a part of the cause pertaining to the Jurisdictional Error by the Federal Circuit court which should be requested to the Honourable Federal Court to consider the case.

(Errors in original.)

35    The appellants seek the following orders:

1.    The Appellant is seeking a fair decision from the Federal Court of Australia to re- consider the case for 457-Visa which the applicant applied for staying and working in Australia as per 457 Visa regulation under subclass 457 (Temporary work) Skilled visa r, any substitute Visa thereby .

2.    The Appellant is seeking a reverse all the decision of the decision maker of AAT and Federal Circuit Court and re-consider the Temporary work skilled visa or, a direct entry Visa for the amount of time lost since 2014 and a subsequent type of visa or, working visa should be substituted to the applicant with a fair decision by the Honourable Federal Court of Australia.

36    On 10 June 2019 the appellants filed written submissions. These submissions were in the form of a letter and are extracted below:

…I AM KINDLY DRAWING YOUR HONOURABLE ATTENTION IN MY CASE PERTAINING TO THE REF.NO. QUD620/2018 TO THE FACT AS FOLLOWINGS:

(1) On the first case the whole system of DIBP or, Department of Immigration and border Protection was a big Jurisdictional error as the Visa refusal decision was made on the circumstances that the reason was given on " Forged Documentation" was submitted of Tishtom Alcosteel Recycling Thailand and also given reason that the Company does not exist or, whatsoever which was completely a false information provided by the Australian Immigration counterpart and case officer's decision and the crosscheck procedure of Australian Immigration system was completely a full Jurisdictional error on the first part and seems to be a planned nature of refusal of the visa decision by the Immigration Australia.

(2) Secondly when my lawyer of Bell legal group pointed out the jurisdictional error on system procedure on cross check of the company existence and the written submission was given on 16/01/2015 and 19/01/2015 subsequently as per evidence submitted in the green book bundle referring page no. 173 ,175 and also necessary supporting documents about the real existence of the company TISHTOM ALCOSTEEL then Immigration Australia or, DIBP at that time did not response on the issue on their failure Jurisdictional error procedures and all of a sudden the nomination got expired and seems it was a planned response on pointing out the nomination expiry and followed by a refusal of the visa.

(3) The nomination was extended and been renewed two subsequent times and no decision was given until 17 months since the application was made on the first case while the Jurisdictional error was made on the first case and the business nomination expired and no extra time was given and AAT just refused to hear any thoughts or, reasons neither considered any legal rights of being described any matter and the hearing was just less then a five minutes hearing which I believe a very short hearing without letting myself explaining any reasons of my long time waiting for years . Even though the business nomination was expired but, the business sponsorship was still valid for 4 years and was also valid until that period . So, at least everything should be considered to achieve my goals but, no opportunity or, fair decision was made at all in this case.

(4) The whole system of Immigration Australia and AAT decision was a big Jurisdictional error as on the first case when I had a valid sponsorship and also been notified by Bell Legal group on 18 November 2016 on page 73 by email about priority of the application and the nomination was renewed twice in that due time and on 29/11/2016 priority request on page 72 of green book bundle submission as we were worried about the expiration of nomination and also the Authority and case officer was reluctant to answer any of the comments and existence of the company Tishtom Alcosteel .

(5) I also refer to the page no. 119 of the green book bundle to consider the case of "BHARDWAJ CASE" under 2002 ,209 CLR 597 and it was totally ignored as well. I brought the attention that the Business sponsorship and business nomination and 457 Visa application e lodged on 10th October 2014 and the sponsorship and nomination was approved on 6th January 2015. The 457 visa application has been under consideration since the lodgement and almost 17 months later simply refused because the validity of nomination has expired.

We asked the decision maker in the light of the natural justice principle and the silence of the administration principle to approve the 457 visa but he simply refused the visa application regardless of the fact the decision maker had been sitting on file for 17 months and about the fair decision as well expedient decision maker procedure was just a unfair decision as well Jurisdictional error as he was not considering the real fact and issues of his first fact and cross check of the " Forged Documents" that he was referring that the company Tishtom was not found on the system which was completely a Jurisdictional error as the company was legal and necessary supporting documents were submitted to proof all the evidences to satisfy the criteria's to issue the 457 visa instead of refusal. Then he was waiting until the nomination was expired and waited until it expired and caused the reason as it expired the nomination. Thus it is just a completely tricky Jurisdictional error concept which is not fair for me the Federal court of Australia must form an investigation team and requesting to order to squash the decision of the Federal Circuit court to be overruled and to reverse the decision of Federal Circuit court .

In fact the substantial justice and the merits of the case was completely a Jurisdictional error as it was a breach of section 353 of the Migration Act 1958 (ACT) and

Focused on wrong questions by ignoring the fact on the decision maker's wrong selection of facts and also failed or, subsequently failed to exercise the authority or, powers given to it under the act .

The hearing at the very least should have been adjourned for at least a short period of time such as 7 ( seven) days to allow a third nomination to be lodged by the sponsor as two earlier nomination grants having elapsed.

(6) The decision was made just a Jurisdictional error as thereby denying natural justice and violating sections 357A and 359AA of the act.

I therefore request to your kind honour to kindly reverse the decision of the Federal Circuit court and requesting to revisit the decision of the decision maker in the Jurisdictional error for which I shall be highly obliged thereby .

…

37    In submissions dated 11 June 2019, the Minister submitted, in summary:

    These proceedings are an appeal pursuant to ss 24(1)(d) and 25(1AA) of the Federal Court of Australia Act 1976 (Cth). An appeal pursuant to s 24(1)(d) is not conducted as a hearing de novo but by way of rehearing, that is, to correct error.

    The grounds of appeal, apart from ground 3, are the original grounds of review before the Federal Circuit Court which were deleted by the amended originating application before that Court.

    Leave is required to raise these grounds for the first time in the appeal. Leave is not sought, and should only be granted where it is ‘expedient in the interests of justice to do so’. Without an explanation of why the appellants failed to raise these grounds in the Federal Circuit Court and the poor prospects of these grounds, leave should be refused.

    Although expressed in a variety of ways, the ground of appeal have two central themes, being:

1.    An allegation of procedural fairness.

2.    Potentially an allegation of unreasonableness in refusing an adjournment.

38    In relation to the allegation of procedural fairness, the Minister submitted:

    The critical question for consideration is what the duty to act fairly requires in the circumstances of the particular case. The enquiry must relate to the specific statutory context in which the decision arose and the requirements are to ensure a fair hearing not a fair outcome, and to avoid practical injustice.

    The delegate’s decision turned on whether the appellant had an approved nomination. The background facts support the submission that the appellants were aware of the importance of the approved nomination.

    The appellant was notified on 13 March 2017 that the date of the Tribunal hearing was 18 May 2017. The approved nomination expired on 13 May 2017. At the time the appellant received the hearing invitation it would have been apparent to the appellant that the approved nomination would expire prior to the hearing. The appellant had ample opportunity to lodge a fresh nomination application, and there was no evidence that the appellant had made a fresh nomination application in circumstances where that had been the central issue throughout the visa application process.

    In the particular circumstances of this matter, there is no practical injustice. The appellants have not lost the opportunity to advance their case or to put any information or argument that was available to them at the time of the Tribunal’s decision.

    Procedural fairness requires only that a party be given a reasonable opportunity to present his case, and does not require a Tribunal to ensure that a party takes the best advantage of the opportunity to which he is entitled. A relevant inquiry is whether a party or their legal representation should have reasonably apprehended that the issue was or might become a live issue. In this matter, there is no doubt, given the prominence and ongoing requirement for the approval of the nominated occupation that the appellant and his representatives at the time were aware of that issue.

    The Court is required to evaluate the circumstances of a particular case in order to decide whether or not there has been a denial of procedural fairness.

39    In relation to whether the Tribunal had been unreasonable in refusing an adjournment, the Minister submitted:

    If there is no request for an adjournment the principles in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 may not be applicable. It is not clear that a request for an adjournment before the Tribunal was actually made.

    The principles of legal unreasonableness can be applied to a decision regarding an adjournment.

    Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 establishes that the appellate Court must decide for itself whether the decision being reviewed for unreasonableness was legally unreasonable.

    The Tribunal’s reasons reveal two justifications for any refusal to adjourn or any decision not to defer the making of a decision on review. No jurisdictional errors are established on this basis.

40    The appellants filed submissions in reply on 13 June 2019. The appellants submitted:

1)    On the outlined submissions by the first respondent it was mentioned that “LEAVE TO APPEAL” was not sought but should only be granted if it is expedient in the interest of justice to do so and ordinarily, the substantial issues should be settled at the first instance. Even though there was no explanation by the appellants for failing raise these grounds in the Federal Circuit Court but, explanations were given strongly by the barrister of the appellant at the time of hearing that meets the criteria to revisit the decision by AAT and should have been reversed by the Honourable Judge of the Federal Circuit Court. Hence this type of substantive issues fell into the Jurisdictional Error by the Federal Circuit Court Judge. It was completely outlined by the Appellant barrister as well that was questioned by the Honourable Judge that seek already a leave to appeal to the case.

2)    In the outlined submission under Background column the respondent outlined the information that on 6th January 2015, the Department invited the appellant to comment on the Information it had received regarding employment in Bangkok and also on 20th January 2015, the appellant's representative Bell Legal group provided additional information material which was certified genuinely by the Ministry of Foreign Affairs In Thailand and provided contained information was completely Genuine that should have been sealed the right decision of the decision maker to be positive on 457 visa as well met the criteria of the 457 Visa requirements in full course as at that period of time the Appellant had valid sponsorship as well valid nomination that would have been met the full criterion to enable the 457 visa .

3)    As per outlined submissions were given by the appellant it was never been justified nor any fair decision was given on the case and fell into "JURISDICTIONAL ERROR" on the first issue and no response was given on this issue of " Unfavourable information" matter that was received on 6th  January 2015 and it was never been an issue or the case officer's interest into the matter. This is completely a Jurisdictional Error on the system as well in the Immigration system and AAT Judgement facts and no such consideration was taken into the count into the point of view of Drastic issue that falls into to the "Jurisdictional error''

4)    In fact in this particular case under regulation 1994 -the DIBP or, AAT or, any other competent authority did not honour or, make any fair decision on my behalf and duly breached the regulation even I had a proper and full sponsorship approval under regulation 2.63 -of the Migration Act 1994. AAT and DIBP simply squashed the regulation and did not make any fair judgement on my behalf and just ignored the reality of the circumstances of the Migration ACT and sitting down on the file unnecessarily as well intentionally on the all violation of the all substantive rules and regulation and migration procedures from the AAT as well DIBP case officer as the decision was made just avoiding intentionally with the negligence of the fact and even though all relevant documentation/ evidence had been supported on the first part of the fact on forged documents issues and questioned but, on the reality all the documents were correct and were certified by the Ministry of Foreign affairs in Thailand and the decision maker was just quiet on the actual fact and after 17 months later suddenly decided to give negative decision where-else the nomination was renewed already and the total silence of the Administration was totally a "Jurisdictional Error" as well no indication of fact pertaining to the case and even after providing real genuine paper works was left silent and ignored real fact or, issues on issuance of genuine documents were completely a JURISDICTIONAL ERROR of SILENCE on the DIBP system.

5)    The Appellant borrowed substantial amount of money from the family members; I,e the Director of the Bulk Industrial Trade PTY LTD who led the appellant borrow to settle the family members of the appellant and also paid all the legal costs to apply the 457 visa interms of legal fees for lawyer and other administrative cost of the Immigration and that period of time the appellant was not happy to bother the family members to pay for the fees for the lawyer as the appellant already took substantial amounts of money which was not yet repaid back to him as well which was just a family matters and as long as the money was never paid to the reasons it did to breach any regulations under migration Act as well as all the earlier fees were paid by the sponsored company in all aspects. So, it is not an issue in this matter. Just to have an urge to the mercy of the AAT members it was mentioned about the fees and also the lawyer was very busy and he was not eager and ready to take this case at that period of time.

At last the appellant holds the full qualification and full potentialities to have 457 visa that meets all the criteria's as an appropriate applicant of the 457 visa that should be justified by the Honourable Judge of the Federal Court as to decide

…

(Errors in original.)

Consideration

41    In the primary proceedings, the application filed on 26 May 2017 raised four grounds of review, namely:

1.     The decision was infected with jurisdictional error as the applicants were denied the procedural fairness by the decision makers’ failure to make a decision in a timely manner and refusing to discuss the merits of the case.

2.     The Minister had a duty to revisit a decision, as we requested, due to the jurisdictional error in accordance with the principle of the Bhardwaj case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

3.     The decision was also infected with jurisdictional error as the Second Respondent wrongly refused to make a decision for Ms Tisha Dhanabadi Barua and Mr Thomas Denis Barua, claiming that no decision about their application has been made by the Department of Immigration and Border Protection.

4.     The decision was infected with jurisdictional error because it has proceeded upon wrong factual basis (allegedly provided non genuine and forged documentation about work experience from non-existing company/employer).

42     On 17 October 2017, the appellants filed an amended application which omitted the grounds of review in the application filed on 26 May 2017 and relied on one ground of review, namely:

1.    The Second Respondent’s decision was affected by jurisdictional error in that:

1.     It did not act according to substantial justice and the merits of the case in breach of section 353 of the Migration Act 1958 (Act) and:

a)    It asked or focused on the wrong question;

b)    It ignored relevant materials and facts;

c)    It failed or substantially failed to exercise the authority or powers given to it under the Act;

d)    The hearing, at the very least, should have been adjourned for seven (7) days to allow a third nomination to be lodged by the Sponsor (two earlier nomination grants having elapsed)

2.     It did not act in a way that is fair and just, thereby denying natural justice and violating sections 357A and 359AA of the Act.

(Original Numbering.)

43    Grounds of appeal 1, 2, 4 and 5 before me are almost identical to the grounds of review originally in the Federal Circuit Court, but which were subsequently abandoned. The sole ground of review which the appellants pressed before the primary Judge in the amended application related to a different issue.

44    It follows that the appellants requires leave to rely on grounds of appeal 1, 2, 4 and 5.

45    In ANL15 v Minister for Immigration and Border Protection [2019] FCA 1365, Jackson J set out the principles relating to circumstances where the Court considers an application for leave to raise issues in appeal which were not before the primary Judge:

[12]     In Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 the Full Court discussed the principles governing the discretion to grant leave to raise grounds of appeal to raise points that were not put below in the particular context of migration appeals. In that case Griffiths and Perry JJ denied leave to amend the grounds of appeal, although Mortimer J would have granted leave. To summarise the principles as set out in Griffiths and Perry JJ's reasons (at [19]-[20]):

(1)     leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so;

(2)     it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial, otherwise that would reduce the proceedings in the court at first instance to little more than a preliminary skirmish;

(3)     in migration appeals the court may grant leave if some point that was not taken below but which clearly has merit is advanced and there is no real prejudice to the Minister in permitting it to be agitated;

(4)     if there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave should generally be refused; and

(5)     generally speaking the court is more likely to grant leave to permit a fresh issue to be raised if the new point turns only on a question of construction or upon a point of law, or where the facts are not in controversy.

[13]     In CHZ19 v Minister for Home Affairs [2019] FCA 914 at [35]-[39], Colvin J identified a number of other considerations which can be relevant to applications for leave to amend of this sort in refugee cases. One is the serious consequences of a decision adverse to the appellant. Another is the difficulty that litigants in person often have in formulating their complaints properly, and the fact that they may sometimes receive assistance in doing so for the first time on appeal. It may also be relevant to consider that if the court, in substance, determines a case against a respondent as if at first instance by entertaining new grounds of appeal, then the respondent will have no right to appeal from that determination and will need to seek special leave to appeal to the High Court. That can, however, assume less significance if the new point is a point of law that does not require extensive consideration of the evidence before the primary judge.

…

[16] … the fact remains that he was represented by competent counsel who may be taken to have made a proper forensic choice about what grounds, if any, to press before the primary judge, and what grounds should not be pressed.

[17]     The position is therefore quite different to the position of an applicant who was entirely self-represented before the court of first instance. That is a factor which, in my view, weighs strongly against granting leave to raise new grounds now. Also, having considered the nature of the grounds and the fact that they are unparticularised, I am unable to discern any apparent merit in either of them. I have read the reasons of the Tribunal which, in my view, indicate that it reviewed the evidence before it thoroughly, and there is nothing to indicate that the Tribunal failed to accord natural justice to the appellant or otherwise failed to give him a fair hearing. Given that the appellant was represented in the Federal Circuit Court and did not raise these grounds, and given that there is no apparent merit in the grounds, leave to include the new grounds in the ground of appeal in this court was refused.

46    The appellants were legally represented before the primary Judge. The fact that they opted not to press grounds of review referable to particular issues, but chose to rely on an unrelated ground, may be taken to have been a strategic legal decision made for a proper forensic purpose. The appellants did not provide reasons for abandoning the original grounds of review before the primary Judge when they could have properly been considered at first instance, and is choosing to now rely on them in an appellate forum. I do not consider it expedient in the interests of justice for leave to be granted for the appellants to rely on grounds 1, 2, 4 and 5 now on appeal.

47    Turning now to the third ground of appeal, insofar as I understand this ground it appears to rely on the proposition that the primary Judge erred by dismissing the application for review when the Tribunal failed to provide a decision in relation to the second and third appellants. This ground raises substantially the same issues as ground 4, and leave should not be granted for the appellants to rely on this ground for the reasons set out above.

48    In relation to ground of appeal 6, it is phrased as a request for the Court to consider previously sworn affidavits. No particulars are provided in relation to this ground of appeal. In my view this ground of appeal lacks merit.

49    Before the primary Judge the appellants claimed that the decision of the Tribunal was affected by jurisdictional error. Grounds 1(1)(a), (b) and (c) were vague and unparticularised.

50    Ground 1(1)(d) claimed that the Tribunal’s decision was affected by jurisdictional error in that it did not adjourn the hearing for seven days to allow a third nomination to be lodged.

51    Ground 1(2) claimed that the Tribunal had not acted in a way that fair and just. Although it is unparticularised, I infer that this ground should be read with ground 1(1)(d).

52    At [8]-[14] of the primary decision His Honour addressed the fact that no adjournment had been granted by the Tribunal. His Honour concluded that the Tribunal had acted reasonably, and that no jurisdictional error was established. In my view, for the reasons given by his Honour, there was no jurisdictional error in the decision of the Tribunal referable to the absence of an adjournment by the Tribunal. No basis on which his Honour’s conclusion was wrong has been advanced by the appellants.

53    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    25 November 2019