Gunaden v Minister for Home Affairs

[2019] HCATrans 84

[2019] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P45 of 2018

B e t w e e n -

JANET GUNADEN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 APRIL 2019, AT 10.30 AM

Copyright in the High Court of Australia

HER HONOUR:   On 20 August 2018, the plaintiff filed an application for an order to show cause seeking relief in the nature of certiorari to quash the decision of a delegate of the defendant made on 30 January 2018 to refuse to grant the plaintiff a training visa and mandamus to compel the defendant to “determine the application according to law”. 

The defendant seeks that the application be dismissed pursuant to one or both of r 25.09.1 and r 28.01.2 of the High Court Rules 2004 (Cth).

The application for an order to show cause was filed outside the time limits stipulated in each of s 486A(1) of the Migration Act 1958 (Cth), and at the time of filing what were rr 25.06.1 and 25.07.2 of the High Court Rules, for the filing of applications seeking relief of the kinds sought.  The plaintiff seeks an extension of time.

For the reasons that I now publish, it is not necessary in the interests of the administration of justice to make an order extending the time for the filing of the application.  I would dismiss the plaintiff’s application with costs.  I direct that the reasons as published be incorporated into the transcript. 

I publish those reasons.

On 20 August 2018, the plaintiff filed in this Court an application for an order to show cause. The plaintiff sought relief in the nature of certiorari to quash the decision of a delegate of the defendant, the Minister for Home Affairs (“the Minister”), made on 30 January 2018, to refuse to grant the plaintiff a Training (Class GF) (Subclass 407) visa (“the January 2018 Decision”) and mandamus to compel the Minister to “determine the application according to law”. The Minister filed an appearance and, subsequently, an affidavit and response. The Minister seeks that the application be dismissed pursuant to one or both of r 25.09.1 and r 28.01.2 of the High Court Rules 2004 (Cth)[1]. 

[1]See High Court Rules, r 1.03.4.

The application for an order to show cause was filed outside the time limits stipulated in each of s 486A(1) of the Migration Act1958 (Cth), and at the time of filing what were rr 25.06.1 and 25.07.2 of the High Court Rules, for the filing of applications seeking relief of the kinds sought. The plaintiff sought an extension of time under s 486A(2) of the Migration Act. Under s 486A(2), the High Court may extend the period of time for making an application for a remedy to be granted in exercise of the Court’s original jurisdiction if it is satisfied that it is “necessary in the interests of the administration of justice” to do so. The Court also has a discretion under r 4.02 of the High Court Rules to enlarge any time period fixed by those Rules[2]. 

[2]See generally Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; 177 ALR 491; [2000] HCA 67.

As these reasons will explain, it is not necessary in the interests of the administration of justice to make an order extending the time for the filing of the application for an order to show cause.  The application should be dismissed with costs. 

Before considering the application, it is first necessary to set out what occurred both prior to, and since, the January 2018 Decision. 

The facts 

The plaintiff, a citizen of the Philippines, lodged a valid application for a Training (Class GF) (Subclass 407) visa (“the Training Visa”) on 21 September 2017 (“the visa application”).  In the visa application, the plaintiff authorised her migration agent to receive correspondence on her behalf, including notification of the outcome of her application.  On the same date, H and S Fresh Pty Ltd (“the sponsor”) lodged an Application for Temporary Activities Sponsorship for a Temporary Work (Class GD) visa (“the application for temporary activities sponsorship”) and, in relation to the plaintiff, an application for approval of a Nomination for a Training Position (“the application for approval of a sponsor nomination”). 

In relation to the visa application, on 15 November 2017, a delegate of the Minister requested that the plaintiff and the secondary visa applicants provide further information, including by undergoing medical assessments.  Under the Migration Regulations 1994 (Cth), an applicant for a Training (Class GF) (Subclass 407) visa must satisfy certain public interest criteria including, relevantly, Public Interest Criterion 4005 which requires the applicant to comply with a request to undertake a medical assessment and to meet specified health criteria[3].  The request was sent to the plaintiff’s migration agent by email and required a response within 28 days.  It was valid notice to the plaintiff[4]. The plaintiff did not provide the further information within the time specified. Pursuant to ss 62(1) and 63(2) of the Migration Act, the delegate was authorised to proceed to determine the visa application without taking any further action to obtain that information.  And, as the plaintiff did not satisfy Public Interest Criterion 4005, the delegate was required to refuse the visa application[5].  Thus, on 30 January 2018, a delegate of the Minister made the January 2018 Decision to refuse the visa application.  The plaintiff was notified of that decision by a letter dated 30 January 2018, which was sent to the plaintiff’s migration agent by email. 

[3]Migration Regulations, Sch 2, cl 407.219A(1) read with Sch 4, Pt 1, Public Interest Criterion 4005(1).

[4]Migration Act, s 494D(1).

[5]Migration Act, s 65(1)(b).

On the same date, the delegate also refused the sponsor’s application for approval of a sponsor nomination.  On 14 February 2018, a delegate of the Minister refused the sponsor’s application for temporary activities sponsorship. 

On 28 May 2018, a delegate of the Minister accepted that there was jurisdictional error in relation to the decision to refuse the sponsor’s application for approval of a sponsor nomination, but advised the plaintiff that there was no jurisdictional error in relation to the January 2018 Decision and that the visa application was therefore considered finally determined under s 5(9) of the Migration Act. 

On 20 August 2018, the plaintiff filed the application for an order to show cause.  As noted, the plaintiff requires an extension of time for the orders she seeks. 

The application for an order to show cause 

The grounds on which relief was claimed by the plaintiff were listed as follows: 

“The decision of the delegate on 30 Jan 2018 to refuse the Plaintiff’s application for visa sc407 was vitiated by jurisdictional error due to the fact that a decision by the delegate had not been reached in relation to the Plaintiff’s Temporary Activities Sponsorship application which was lodged on 21 Sept 2017. 

Alternatively, the delegate should have held that the Plaintiff’s application for visa sc407 lodged on 21 Sept 2017 to be [sic] invalid due to the fact that the Plaintiff’s employer’s Temporary Activities sponsorship application under s 140 E of the Migration Act 1958 had not been reached before the Plaintiff’s application for visa sc407 was refused on 30 Jan 2018.”

The plaintiff provided the following particulars: 

“Criterion sc 407.213 of Schedule 2 of the Migration Regulation [sic] requires that for visa subclass sc407 [to] be granted, the Plaintiff’s employer’s Temporary Activities sponsorship application must first be approved as per section 140 (E) of the Migration Act 1958.

Item 1238 Schedule 1 sub 3 (5)(b)(ii) of the Migration Regulation 1994 [sic] requires that the application for visa sc407 must identify the nomination. In this case, the nomination has been deemed not made by the delegate on 28 May 2018.

At the time the delegate refused the Plaintiff’s visa application on 30 Jan 2018, the Plaintiff’s employer’s Temporary Activities sponsorship application had not yet been decided.  The Plaintiff’s employer’s Temporary Activities sponsorship application was refused on 14 Feb 2018.” 

Disposition 

The plaintiff identifies two grounds as the bases for the relief sought:  that the January 2018 Decision was vitiated by jurisdictional error; and, alternatively, that the delegate should have held the plaintiff’s visa application invalid because the sponsor’s application for temporary activities sponsorship had not been determined when the January 2018 Decision was made.  Neither ground has any reasonable prospect of success.  Each ground proceeds on a misunderstanding of the operation of the Migration Act. 

Ground 1 − that the January 2018 Decision was vitiated by jurisdictional error

The January 2018 Decision is a privative clause decision[6].  The primary criteria for the grant of the Training Visa include, among others, age requirements, functional English requirements, sponsorship requirements, genuine temporary entrant requirements and public interest criteria.  Each must be satisfied before a decision can be made to grant the visa[7]. 

[6]Migration Act, s 474(2).

[7]Migration Act, s 65(1)(a)(i) and (ii); Migration Regulations, Sch 2, cl 407.2. See also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [37]; 207 ALR 12 at 20; [2004] HCA 32.

There is no dispute that the sponsorship requirements, including that there be an approved sponsor, is a primary criterion for the grant of a Training Visa[8].  However, it is not the only criterion and it is not necessary for the determination of an application for a Training Visa, as distinct from the grant of such a visa, that any relevant application by a sponsor be determined. 

[8]See Migration Regulations, Sch 2, cl 407.213 read with Migration Act, s 5(1) definition of "approved sponsor".

That last statement needs unpacking.  Whether or not a sponsor identified in an application for a Training Visa is an “approved sponsor” is not a jurisdictional fact that must be determined before the Minister can consider the application.  It is a fact of which a Minister must be satisfied before the Training Visa can be granted.  Moreover, if other criteria are not satisfied, a Minister can determine and refuse the visa application.  Put simply, if the Minister is satisfied that any of the primary criteria has not been met, the Minister is to refuse to grant the visa[9]. 

[9]Pursuant to Migration Act, s 65(1)(b).

As has been explained, that is what occurred here. When the plaintiff’s visa application was determined, the plaintiff had not met the requirements of cl 407.219A(1) of the Migration Regulations and did not satisfy Public Interest Criterion 4005.  The fact that the sponsor’s application for temporary activities sponsorship had not been determined when the plaintiff’s visa application was refused did not invalidate the delegate’s decision and did not give rise to jurisdictional error. 

Ground 2 − visa application invalid because sponsor's application for temporary activities sponsorship not determined 

An application for a visa is valid if it meets the requirements of s 46 of the Migration Act.  The plaintiff’s visa application was valid in that, among other things, it nominated a sponsor[10] and the nominated sponsor had applied for approval as a temporary activities sponsor but its application had not yet been decided[11]. 

[10]Migration Regulations, Sch 1, item 3 of the table at cl 1238(3).

[11]Migration Regulations, Sch 1, item 4(a) of the table at cl 1238(3).

The fact that a determination had not been made on the sponsor’s application for temporary activities sponsorship did not render the visa application invalid. 

But, once a valid visa application had been lodged, the Minister was required to consider that valid visa application[12].  And that obligation continued until, relevantly, the application was withdrawn or a decision was made to refuse or grant the visa[13].  There is no basis for the Minister to treat an otherwise valid visa application as though it is invalid. 

[12]Migration Act, s 47(1).

[13]Migration Act, s 47(2).

Before proceeding to determine the plaintiff’s valid visa application, the delegate sought further information which was not provided.  The delegate was authorised to determine the visa application without taking any further step to seek to obtain the further information[14].  And, of course, there was no obligation on the delegate to provide the plaintiff with an opportunity to withdraw the application. 

[14]Migration Act, ss 62(1) and 63(2).

Conclusion 

Under r 25.09.1 of the High Court Rules, a Justice of the High Court may dismiss the application without listing it for hearing on the ground that the application does not disclose an arguable basis for the relief sought.  As has just been explained, the plaintiff’s application does not disclose an arguable basis for the relief sought. 

Second, the plaintiff has provided an explanation for the considerable delay in seeking relief from this Court.  That explanation is unsatisfactory.  The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court[15].  And here, even if the plaintiff, as she contends, did not become aware of the decision to refuse her visa application until June 2018, the plaintiff has provided no explanation as to why she made no enquiries about her visa application between September 2017 and June 2018, some eight months. 

Conclusion and orders 

For all of those reasons, I am not satisfied that it is necessary in the interests of the administration of justice to make an order under s 486A(2) of the Migration Act or r 4.02 of the High Court Rules extending or enlarging the time for the filing of the application for an order to show cause. 

The orders are: 

[15]See Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [16]; 177 ALR 491 at 496.

1.The plaintiff’s application for an extension of time under s 486A(2) of the Migration Act 1958 (Cth) is refused.

2.Pursuant to r 25.09.1 of the High Court Rules 2004 (Cth), the plaintiff’s application for an order to show cause is otherwise dismissed.

3.The plaintiff is to pay the defendant’s costs of the application.

I publish those orders.

AT 10.31 AM THE MATTER WAS CONCLUDED