Federal Court of Australia

Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1173

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 18 May 2021 be refused.

2.    The applicants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Revised from transcript

YATES J:

Introduction

1    The applicants, who are husband and wife, apply to extend time to bring an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 7 April 2021. By orders made on that day, the Federal Circuit Court dismissed the applicants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision was that it did not have jurisdiction to review a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), which refused the first applicant’s application for a Subclass 457 visa (457 visa). The first applicant was the primary applicant for the visa. The second applicant applied as a member of the first applicant’s family group.

2    The first applicant, who is a citizen of India, applied onshore for the visa on 14 September 2016. He stated that Northern Beaches Taxi Services Pty Ltd (Northern Beaches Taxi Services) was his sponsoring employer for the purposes of the visa application. The application fell to be assessed against the criteria in cl 457.223(4) of the Migration Regulations 1994 (Cth) (the Regulations). One criterion was that the first applicant’s application be supported by a nomination that had been approved under s 140GB of the Migration Act 1958 (Cth) (the Act). A requirement of an approved nomination is that the nominating person be an approved work sponsor. At the relevant time, Northern Beaches Taxi Services was not an approved work sponsor. Consequently, an approved nomination in respect of the first applicant was not in place at the time the delegate’s decision was made.

3    For this reason, the first applicant did not meet the requirements for a 457 visa. On 17 January 2017, the delegate refused the first applicant’s application on this basis.

4    On 3 February 2017, the applicants applied to the Tribunal for a review of the delegate’s decision. However, the problem with this application was that, in their case, the Tribunal’s jurisdiction depended on whether the delegate’s decision was a Part 5-reviewable decision within the meaning of s 338(2) of the Act, as in force at the relevant time:

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:

(a)    the visa could be granted while the non-citizen is in the migration zone; and

(b)    the non-citizen made the application for the visa while in the migration zone; and

(c)    the decision was not made when the non-citizen:

(i)    was in immigration clearance; or

(ii)    had been refused immigration clearance and had not subsequently been immigration cleared; and

(d)    where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i)     the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii)     an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

…

5    In the first applicant’s case, the requirements of s 338(2)(a), (b), and (c) were met. The question was whether the requirement of s 338(2)(d) was met?

6    Realising that this might not be the case, on 19 October 2018 a letter was sent to the applicants on behalf of the Registrar of the Tribunal, stating (amongst other things):

…

I am of the view that your application for review is invalid. At the time you applied for review, you were not identified in a nomination under s.140GB of the Migration Act 1958 that was either approved or pending. Nor was there a valid and pending application for review before us of a decision not to approve the sponsor under s.140E, or of a decision not to approve the nomination under s.140GB of the Act. However this is a matter which must be determined by a Member.

If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 2 November 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

…

7    The applicants did not respond to this invitation.

8    On 8 November 2018, and in the absence of any response from the applicants, the Tribunal concluded that it did not have jurisdiction to review the delegate’s decision, specifically because the first applicant was not sponsored or nominated, as required.

The Federal Circuit Court

9    The applicants sought judicial review of the Tribunal’s decision. In essence, the applicants’ case was that the Tribunal wrongly decided that it did not have jurisdiction because, in spite of what the delegate and the Tribunal had found, an approved nomination of the first applicant was in place which satisfied the requirement of s 338(2)(d) of the Act (the other requirements of a Part 5-reviewable decision having been met). The primary judge rejected that case.

10    The primary judge noted that the Tribunal had put the applicants on notice of their need to show that the first applicant’s application for a 457 visa was supported by an approved sponsorship. His Honour said that the applicants could have placed evidence (if it existed) before the Tribunal of an approved sponsorship or pending review of a sponsorship decision, for its decision. However, the applicants did not do so. The primary judge reasoned that, in the absence of such evidence, the Tribunal’s conclusion that the first applicant did not have an approved sponsorship or nomination was a finding that was open to the Tribunal on the material before it.

11    The primary judge further held that the Tribunal’s decision was the correct decision because the evidence was that the application by Northern Beaches Taxi Services to be a standard business sponsor had been refused on 9 November 2016.

12    The primary judge concluded that, as the requirement of s 338(2)(d) of the Act had not been established, the delegate’s decision was not shown to be a Part 5-reviewable decision. It was not, therefore, a decision that could be reviewed by the Tribunal. His Honour concluded that no error had been demonstrated in the Tribunal’s finding that it did not have jurisdiction to determine the applicants’ review application.

The application to extend time

13    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules), an appeal from the Federal Circuit Court’s judgment should have been commenced within 28 days after 7 April 2021—namely, 5 May 2021. The applicants did not commence an appeal within time. However, pursuant to r 36.05, the applicants can apply to extend the time for filing a notice of appeal.

14    The applicants’ application to extend time was filed on 18 May 2021. The application is supported by two affidavits made by the first applicant on 5 May 2021 and 17 May 2021. In his affidavit of 17 May 2021, the first applicant says that he applied to the Court “to review the decision of Judge Driver” on 5 May 2021, but his application was rejected on 6 May 2021 because he had not lodged Form 121—meaning, a notice of appeal.

15    The draft notice of appeal accompanying the application to extend time raises three grounds, expressed as follows:

1.    The Federal Circuit Court made an error in accepting that the AAT did not have jurisdiction to review the Department of Home Affairs decision to refuse the Applicant’s application for a Temporary Entry (Class UC) visa.

2.    The Federal Circuit Court did not take into account that the AAT did not take all the relevant information into account.

3.    The Federal Circuit Court did not take into account that the AAT ignored the fact that the Applicant’s Sponsorship and Nomination was approved for the position he applied for.

16    These grounds appear to repeat, in substance, the three grounds of review raised in the proceeding before the primary judge. The second ground is not supported by particulars, but it appears to cover the same subject matter covered by the third ground—namely, the applicants’ contention that an approved sponsorship and an approved nomination were in place. As presented in the proceeding below, the three grounds centre on the contention that the Tribunal wrongly decided that it did not have jurisdiction because, according to the applicants, Northern Beaches Taxi Services was an approved sponsor, and an approved nomination was in place for the first applicant, at the relevant time.

17    The approach to considering applications to extend time was discussed in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (Hunter Valley Developments) at 348 – 349. The following principles, relevant to the present application, were identified:

(a)    The prescribed period of 28 days within which to bring an appeal is not to be ignored. It sets the prima facie rule that proceedings commenced outside that period will not be entertained. Therefore, an application to extend time will not be granted unless the Court is positively satisfied that it is proper to do so. It is a precondition to the exercise of the discretion to extend time that the applicant for the extension shows an “acceptable explanation for the delay” and that it is “fair and equitable in the circumstances” to extend time.

(b)    Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension.

(c)    The mere absence of prejudice is not enough to justify the grant of an extension.

(d)    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

18    The approach discussed in Hunter Valley Developments has been endorsed in many cases. In Fualau v Minister for Home Affairs [2020] FCAFC 11 the Full Court said (at [6]):

6        Pursuant to r 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court's discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]. Relevant factors include the reason for the delay; any prejudice to the respondent caused by the delay; and the merits of the substantial application. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. However, the merits of the appeal will remain a relevant factor: N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [13].

19    In relation to the present application, the Minister does not assert any prejudice, other than the significant public interest in the finality of judicial decisions, as explained in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491 at [15] – [17]. However, the Minister does oppose the application for an extension of time on the basis that the applicants have not adequately explained the reason(s) for their delay. Perhaps more importantly, the Minister contends that the grounds on which the applicants seek to appeal are not sufficiently arguable. The Minister contends that it would not be in the interests of the administration of justice to grant the extension that is sought.

Consideration

20    I am not persuaded that an extension of time should be granted. The grounds on which the applicants seek to appeal are without merit.

21    As to the first ground, it cannot be argued cogently that the Federal Circuit Court erred in accepting that the Tribunal did not have jurisdiction to review the delegate’s refusal decision. Plainly, on the material before the Tribunal, the delegate’s decision was not a Part 5-reviewable decision because the requirement of s 338(2)(d) of the Act, as it existed at the relevant time, was not satisfied. There was no evidence before the Tribunal that, at the time the review application was made, the first applicant was sponsored by an approved sponsor. Further, there was no evidence before the Tribunal that, at the time the review application was made, there was any pending application to review the decision not to approve Northern Beaches Taxi Services as a standard business sponsor. Certainly, there was no evidence before the Tribunal that an approved nomination of the first applicant as a visa applicant was in place. Absent the requirement of s 338(2)(d) being satsified, the Tribunal did not have the jurisdiction to embark on the review that the applicants sought. The primary judge did not err in rejecting the first and third grounds of judicial review.

22    As to the second ground on which the applicants seek to appeal, the relevant information which the applicants contend was not considered by the Tribunal was that, according to the applicants, Northern Beaches Taxi Services was an approved sponsor and an approved nomination in respect of the first applicant was in place at the time of the delegate’s refusal decision. However, these asserted facts were not established by the applicants, as explained above. What is more, the available evidence shows that these asserted facts could not be established because Northern Beaches Taxi Services was not an approved sponsor. Its application for approval as a sponsor had been refused. Therefore, the Tribunal did not err, as the applicants contend, and the Federal Circuit Court did not err in rejecting the second ground of judicial review.

23    For the same reasons, the third ground on which the applicants seek to appeal cannot be sustained. The asserted facts—an approved sponsorship and an approved nomination were in place at the relevant time—were not established. Therefore, the Tribunal did not ignore relevant and established facts. Once again, the Federal Circuit Court did not err in rejecting the second ground of judicial review.

24    Having reached these conclusions, it is not necessary for me to consider the Minister’s contention that the applicants have not adequately explained the reason(s) for the delay. Even if the applicants could present an acceptable explanation, it would not avail them. The appeal they wish to bring cannot succeed.

Disposition

25    For these reasons, the application for an extension of time will be refused. The applicants should pay the Minister’s costs.

Associate:

Dated:    28 September 2021