Federal Court of Australia

Pooja v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 596

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The first and third applicants pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

JACKMAN J

1    By an application filed on 7 September 2021 (Application), the applicants seek an extension of time in which to seek leave to appeal from the whole judgment of the Honourable Judge Street (primary judge) delivered ex tempore on 18 August 2021 in the matter of Pooja v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2112 (Judgment), and they also seek leave to appeal against the Judgment.

2    When the matter was called for hearing at 10.15 am today, there was no appearance by the applicants. That was despite correspondence by the solicitors for the first respondent to the applicants on 3 March 2023, 9 March 2023 and 5 June 2023 advising the applicants of the time and place of the hearing, together with clear and unequivocal notice that if the applicants failed to appear, the first respondent would apply for the application to be dismissed with costs. In my view, it is appropriate to make that order, pursuant to rr 35.32 and 35.33 of the Federal Court Rules 2011 (Cth) (Federal Court Rules).

3    The primary judge dismissed the applicants’ judicial review application in the then Federal Circuit Court of Australia at a hearing held pursuant to r 44.12 of the former Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

4    On 27 June 2015, the applicants applied for Employer Nomination (Permanent) (Class EN) visas through the Direct Entry stream (the visa application). The first applicant sought to work in the nominated position of cook at Arvideep Pty Ltd (nominator). The nominator nominated the first applicant to work in a position under its employment. A delegate of the first respondent refused to approve the nomination application made by the nominator.

5    On 8 February 2016, a delegate of the first respondent refused the visa application on the basis that the first applicant did not meet the criteria in cl 186.233(3) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because the nomination by Arvideep Pty Ltd had not been approved.

6    On 9 February 2016, the applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 18 August 2017, the Tribunal sent an email to the applicants’ representative inviting the applicants to appear before it to give evidence and present arguments. On 19 August 2017, the Tribunal received an email from the applicants’ representative advising that the first applicant was not medically fit and would not be able to attend the scheduled hearing. A request was made for the scheduled hearing to be postponed and medical certificates were attached in support of that request. The medical certificates attached to the email stated that the first applicant had “a medical condition and will be unfit for work” from 15 September 2017 to 20 September 2017, inclusive.

7    The Tribunal considered the information and the request and determined that the hearing could still take place via telephone. The Tribunal informed the applicants’ representative of its position via telephone call and email on 19 September 2017. Later that day, the applicants’ representative sent an email to the Tribunal stating that the first applicant confirmed she could be “interviewed” and the representative gave the phone number the first applicant had provided.

8    On 20 September 2017, an officer of the Tribunal called the applicants to attend to preliminary matters before the hearing. The first applicant informed the Tribunal officer that she was not feeling well and requested an adjournment. The Tribunal Member attempted to contact the first applicant via telephone at the arranged time of the hearing; however, her mobile was switched off. That afternoon the Tribunal emailed a letter to the applicants’ representative confirming that it agreed to postpone the hearing and invited the applicants to a resumed hearing on 27 September 2017 (Resumed hearing letter). After sending the email, the Tribunal called the applicants’ representative and confirmed that the Resumed hearing letter had been received.

9    On 26 September 2017, the applicants’ representative confirmed that he had informed the applicants of the adjourned hearing date and that he expected the first applicant to attend the hearing on 27 September 2017. On the same day, a Tribunal Officer also attempted to call the first applicant. The call went straight to voicemail and the Tribunal Officer left a message regarding the details of the hearing.

10    The applicants did not appear before the Tribunal on the scheduled date. Pursuant to s 362B of the Migration Act 1958 (Cth) (Act) the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicants to appear.

11    The Tribunal found that information in the delegate’s decision record indicated that the first applicant was nominated by Arvideep Pty Ltd and that the nomination was refused by the Department. The Tribunal was satisfied that that was the nomination referred to in the visa application for the purpose of cl 186.233(1) of the Regulations.

12    The Tribunal found that there was no evidence before the Tribunal to suggest that the nomination to which the visa application related had been approved. The Tribunal found that the first applicant did not meet cl 186.233(3) and affirmed the decision on review.

13    By an application to show cause filed in the then Federal Circuit Court on 15 November 2018, the applicants sought judicial review of the Tribunal’s decision. That matter was listed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules.

14    At the show cause hearing, the primary judge dismissed the applicants’ application for judicial review. The primary judge noted that the Tribunal identified that the nominated position was not the subject of an approved nomination and for that reason it was satisfied the applicants did not meet the criterion under cl 186.233(3) of the Regulations. The primary judge acknowledged the reasons provided by the applicants at the show cause hearing for why they did not have an approved nomination, however found that they were not relevant matters before the Tribunal. The primary judge then proceeded to consider and reject each of the seven grounds in the applicants’ judicial review application, primarily on the basis that no arguable error was disclosed. Having rejected each review ground, the primary judge was not satisfied that the judicial review application raised an arguable case for the relief claimed.

15    By the Application, the applicants seek an extension of time in which to seek leave to appeal against the whole of the Judgment. The grounds of the extension of time application are set out in the affidavit of the first applicant dated 6 September 2021 which accompanied the application (Affidavit) and are as follows:

13. Reason for delay

14. I was not aware about filing Federal Court Application in 14 days.

15. I have received Judgment after bit late. I have taken few more days to complete my Court Application. Please delays condone and consider our application for judicial review.

The balance of the paragraphs in the supporting affidavit to the Application are not relevant to the application for an extension of time.

16    The grounds of the leave to appeal application are set out in the Application and are as follows:

1.    The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review without giving consideration.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3.    The Administrative Appeals Tribunal (AAT) erred in its judgment by not applying natural justice provision under s424 of the Migration Act – 1958.

4.    Substantial injustice would be caused if leave is refused as the Hon. Federal Circuit Court judgment:

a.    Not consider my attempt to provide evidence of the compelling and compassionate circumstances that evolved due to this matter. I have been affected by psychological and mental illness with the ongoing stress and anxiety such as, I have developed depression and have been seeing a doctor regarding my illness. Further to this, I have been taking medication to assist with my mental condition.

The grounds of the leave to appeal application reproduced above are identical to the proposed grounds in the draft notice of appeal annexed to the First applicant’s affidavit.

17    This matter was dismissed by the primary judge at a show cause hearing held pursuant to r 44.21 of the Federal Circuit Court Rules. Leave to appeal is required as the Judgment and resulting orders are interlocutory.

18    Pursuant to r 35.13 of the Federal Court Rules, an application for leave to appeal must have been filed within 14 days after the date on which the Judgment was pronounced or the resulting orders were made. As the Judgment and orders were made on 18 August 2021, the application for leave to appeal therefore had to be lodged by 1 September 2021 to be in time. Accordingly, the Application lodged is 6 days out of time and requires an extension of time, which is sought pursuant to r 35.14 of the Federal Court Rules.

19    In Li v Minister for Immigration and Border Protection [2018] FCA 730 at [13], Moshinsky J succinctly summarised in the following terms the relevant factors to be taken into account when considering an application for an extension of time and the relevant test to apply for leave to appeal:

… In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.

See to similar effect in relation to the application to extend time BUD17 v Minister for Home Affairs [2018] FCAFC 140; (2018) 264 FCR 134 at [82] (Robertson, Steward and Thawley JJ).

20    A delay of 6 days is not particularly substantial. In the Affidavit accompanying the Application, the first applicant states that she was not aware of the timeframes to file the application for leave to appeal and that she received the orders of the primary judge a “bit late”. The explanations offered do not justify the grant of an extension of time. The fact that the applicants were not aware of the relevant timeframes is not an adequate explanation for the delay. Additionally, the applicants were notified of the primary judge’s orders by email on 18 August 2021 (the date of the orders and judgment).

21    The first respondent accepts that no prejudice would be suffered in the grant of an extension of time that could not be remedied by an order for costs. However, the absence of prejudice is not in itself a sufficient basis to justify the grant of an extension of time.

22    Turning to the merits of the proposed appeal grounds, as to Ground 1, the applicants do not particularise what the primary judge failed to consider. Having regard to the written reasons for Judgment, his Honour:

(a)    laid out the material facts to the matter (at [2]-[7]);

(b)    set out submissions advanced by the applicants at the show cause hearing (at [9]-[10]);

(c)    reproduced the applicants' review grounds as contained in their judicial review application (at [11]); and

(d)    made findings specific to each review ground (at [12]-[18]).

23    There is no matter of any materiality that was omitted in reaching the Judgment. There is simply no arguable case for error by the primary judge in this regard.

24    As to Ground 2, pursuant to r 44.13 of the Federal Circuit Court Rules, the primary judge was limited to considering only the review grounds in the judicial review application before him. No ground in the applicants' judicial review application called for his Honour's consideration of whether the Tribunal correctly applied cl 186.233 of the Regulations, being the dispositive clause for the visa refusal. That is, the judicial review application did not raise a question for the primary judge to consider the proper application of that clause. Notwithstanding that matter, his Honour did make findings in respect of cl 186.233 in that he found the applicants could not have succeeded at the Tribunal stage if the first applicant did not have an approved nomination before the Tribunal (at [10] and [17]).

25    There is simply no arguable case for error by the primary judge in this regard.

26    As to Ground 3, this proposed ground does not engage with the Judgment. It raises a new issue which was not before the primary judge. Accordingly, the applicants need to seek the leave of the Court to raise this new ground, and in doing so demonstrate that such leave is expedient in the administration of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ) . No such grounds are established, and no explanation has been provided as to why this argument was not raised below.

27    In any event, there is no arguable case for error on the part of the Tribunal. Section 424 of the Act does not apply to the conduct of Tribunal reviews in connection with subclass 186 visa decisions, being the relevant visa in this matter. The provisions in Pt 5 of the Act apply to the review conducted by the Tribunal in this matter. The relevant provision in Pt 5 which corresponds to s 424 is s 359. There was no lack of natural justice or procedural fairness by the Tribunal, nor is there any other basis on which it could be contended that the Tribunal erred by not invoking s 359.

28    As to Ground 4, this proposed ground substantially reproduces Ground 6 in the judicial review application before the primary judge. Contrary to the position of the applicants, the primary judge did, in fact, consider the alleged matter at [17]. There is simply no arguable case for error by the primary judge in this regard.

29    The draft notice of appeal has no merit and, as such, does not warrant the Court exercising its power to grant the extension of time.

30    Even if the Judgment were affected by error, the applicants would not be able to satisfy the relevant criteria should the matter be remitted to the Tribunal for reconsideration. That is because there is no approved nomination as required under cl 186.233 of the Regulations. That fact is not in dispute and there is no evidence before the Court to suggest otherwise. The Application is futile.

31    Accordingly, I refuse the application for an extension of time in which to seek leave to appeal.

32    Even if an extension of time were to be granted (contrary to the conclusion which I have expressed above), I would not grant leave to appeal because:

(a)    the Judgment is not attended with sufficient doubt to warrant its reconsideration on appeal, for the reasons given above in relation to the lack of merit in the proposed appeal grounds; and

(b)    no substantial injustice would result if leave to appeal were refused, assuming the Judgment to be incorrect, for the reason given above in relation to the futility of the Application given the lack of an approved nomination as required by cl 186.233 of the Regulations.

33    Accordingly, the Application should be dismissed, and the first applicant and third applicant should be ordered to pay the first respondent's costs.

Associate:

Dated:    6 June 2023