Tariq v Minister for Immigration and Border Protection [2018] FCA 1409

FEDERAL COURT OF AUSTRALIA

Tariq v Minister for Immigration and Border Protection [2018] FCA 1409 Appeal from: Application for leave to appeal: Tariq v Minister for Immigration [2018] FCCA 212

File number: NSD 104 of 2018

Judge: PERRAM J

Date of judgment: 14 September 2018

Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – whether Court erred in dismissing appeal from Administrative Appeals Tribunal under show cause procedure – whether Applicant had arguable case for relief

Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12 Migration Regulations 1994 (Cth) sch 2 cl 457.223

Date of hearing: 10 September 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondents: Mr L Dennis of Minter Ellison Lawyers

ORDERS NSD 104 of 2018

BETWEEN: RABIA TARIQ Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: PERRAM J DATE OF ORDER: 14 SEPTEMBER 2018

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The Applicant 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

PERRAM J: 1 On 30 January 2018 the Federal Circuit Court dismissed the Applicant's claim for judicial review of a decision of the Administrative Appeals Tribunal ('Tribunal'). On 2 February 2018 she applied to this Court for leave to appeal from those orders. For the reasons which follow the application for leave should be refused with costs. 2 The Applicant applied for a Temporary Business Entry (Class UC) visa. One of the requirements of which the Minister (or his delegate) had to be satisfied before granting such a visa was that the Applicant held an 'approved nomination' as required by cl 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth). At the time the delegate made the initial decision the Applicant did not have an approved nomination so the delegate was obliged to refuse the application. On review in the Tribunal the Applicant still had no approved nomination. She sought from the Tribunal, and was granted, further time to obtain the approved nomination. It heard her case on 18 January 2017 and delayed determining the review application until 1 August 2017 to allow the matter to be addressed. When it gave its decision on 1 August 2017 she still had not obtained an approved nomination. 3 The Tribunal was, therefore, bound to dismiss her review application which it did. 4 The Applicant then applied for judicial review in the Federal Circuit Court. The matter was listed for a show cause hearing on 30 January 2018. On that day it was dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 5 The three grounds pursued in the Court below were recorded at [24] of the primary judge's reasons: '24. The applicant then confirmed that she relied on the grounds of her Amended Application filed on 21 September 2017 as follows: "1. Nomination was approved but visa was not granted. 2. Fight for custody being single decision did not made on time and company shutdown. 3. Because of changes in laws occupation came out from the list and application got invalid even my case was applied before the law came through." (Errors in original)' 6 The first ground suggested that an approved nomination now existed. At the hearing in the Court below the Applicant sought to tender an approved nomination which she said she had, by then, received. The primary judge rejected the tender on relevance grounds. The basis of this appears to have been that the fact that an approved nomination now existed did not alter the fact that at the time of the Tribunal's decision it had not. What occurred at the hearing in the Court below is recorded at [17]-[23] of the primary judge's reasons: '17. The applicant sought to tender a new approval of nomination that she now has for a new business visa application. That document was objected to on the grounds of relevance. I explained to the applicant that such a document was not relevant to the issue before this Court and it was accordingly rejected. 18. However, as the new visa application may provide the applicant with an ability to pursue an application that may have better prospects of success than the present application before the Court, I stood the matter down for a short time to give her an opportunity to speak with the solicitor for the first respondent. 19. The applicant indicated when she came back that she may still wish to proceed with her hearing. I indicated that if the applicant did proceed with her application and was unsuccessful, she was likely to be ordered to pay costs in accordance with the relevant costs schedule. 20. I said to the applicant that if she wished to withdraw her application and file a Notice of Discontinuance in Court today, whilst the first respondent may well still seek costs in the scale amount of $3667, the Court may make an award substantially less than that. I indicated that the amount I had in mind was $500. 21. I explained to the applicant that it may be in her interests and those of her son for her to withdraw this application and to pursue her present application for a 457 visa, in respect of which she appears to have an approved nomination. 22. The applicant asked if she withdrew her application, could she still appeal. I explained that she would not be able to do so. I also explained that if the applicant did appeal and was unsuccessful then her costs were only likely to be increased. 23. However, the applicant told the Court that she wished to proceed with her application.' 7 Effectively, the primary judge was confronted by the fact that the jurisdictional requirement which had been missing at the time of the Tribunal's decision had now been located. However, her Honour was, with respect, correct to conclude that this did not mean that the Tribunal's decision was wrong. The Tribunal had to base its decision on what was – or in this case – what was not before it at the time it made its decision. Her Honour's treatment of this issue does not reveal error. 8 The second and third grounds before the primary judge did not really make sense but her Honour treated them as perhaps inviting some species of rationality review which her Honour then rejected. 9 Because an appeal to this Court from an interlocutory judgment is by leave only the Applicant needs leave. The proposed grounds of appeal are in substance the same as the grounds advanced in support of the judicial review action in the Court below. 10 It would be inappropriate to grant leave. The fact remains that at the time of the Tribunal's decision there was no approved nomination. That fact cannot now be erased. The Applicant's primary point that she now holds an approved nomination is beside the point in an application for writs of certiorari or mandamus such as the application before the primary judge. The other two proposed grounds of appeal do not exhibit any cognisable ground of review 11 At the hearing of this appeal the Applicant appeared in Court apparently unable to speak. She held a number of tissues to her mouth and affected to be unable to speak at all. After some coaxing from me she was able to tell me that she had a chest infection. She said she had had the infection for two weeks and that she had seen the doctor two weeks prior to the hearing. I took this to be from the Applicant's various gestures an application for an adjournment. I asked if she had a medical certificate but she did not produce one. 12 The matter had been adjourned on several occasions prior to the hearing at the request of the Applicant for a variety of reasons which are set out below: on filing her application for leave to appeal on 2 February 2018, the Applicant provided a letter to the Court explaining that she would be travelling for work between 5 February 2018 and 25 March 2018. The Court indicated that the matter would be listed for hearing between 7 May 2018 and 1 June 2018. on 13 February 2018, the Applicant emailed to the Court a letter from "The PFS Group" stating that she would be travelling to the United States for work between 20 February 2018 and 18 March 2018, and then again between 1 May 2018 and 5 June 2018. On 13 April 2018 the Court notified the Applicant that a hearing had been listed for 21 June 2018. on 13 April 2018, the Applicant emailed to the Court a letter from "The PFS Group" stating that she would be travelling to the United States for work between 1 May 2018 and 25 July 2018. The hearing was adjourned to 27 August 2018. on 13 July 2018, the Applicant emailed to the Court a letter from "The PFS Group" stating that she would be travelling to the United States for work between 1 August 2018 and 21 September 2018. Her adjournment request was denied. on 13 August 2018, the Applicant emailed to the Court a letter from UNICEF stating that she would be travelling for work to Malaysia, Singapore and Thailand for 10 days from 7 August 2018. She also provided a medical certificate certifying that she was suffering from, inter alia, chest pain, and therefore would be unfit for work for 6 weeks and unable to attend the hearing on 27 August 2018. She further explained that she had to look after her son. I requested a detailed report from her doctor explaining why she was unable to appear at the hearing and when it was likely she would be able to appear in the future. on 20 August 2018, the Applicant emailed to the Court multiple medical documents explaining that she was suffering from a chest infection and a urinary tract infection. She also provided medical documentation explaining that her son had injured his toe. This was not the detailed report that I had requested. The Minister, however, consented to the matter being adjourned to 10 September 2018. 13 In light of the history of the matter I did not believe that the Applicant was unwell at the hearing. Rather, I took the view this was a last-ditch (and somewhat theatrical) attempt to adjourn the proceeding by any means, and not a particularly convincing one at that. Accordingly, I refused to adjourn the hearing. 14 The application for leave to appeal is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.