Federal Circuit and Family Court of Australia
(DIVISION 2)

Vyas v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1374  
File number:	MLG 3879 of 2019	
		
Judgment of:	JUDGE J YOUNG	
		
Date of judgment:	11 December 2024	
		
Catchwords:	MIGRATION – extension of time application – applicant filed 1 day out of time – Temporary Business Entry (Class UC) (Temporary Work) (Skilled) (Subclass 457) visa – where Tribunal affirmed a decision of the first respondent to refuse to grant the visa – where applicant was not the subject of an approved nomination in accordance with cl 457.233(4)(a) of the Migration Regulations 1994 – where applicant conceded sole ground of review did not establish jurisdictional error – found grounds of substantive application are not reasonably arguable – application dismissed. 	
		
Legislation:	Migration Act 1958 (Cth) ss 359A, 476(1), 476A(3)(a), 477(1), 477(2)
Migration Regulations 1994 cll 457.233(4)(a), 457.321
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2	
		
Cases cited:	BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86	
		
Division:	Division 2 General Federal Law	
		
Number of paragraphs:	56	
		
Date of hearing:	11 November 2024 	
		
Place	Melbourne	
		
Solicitor for the Applicants:	Self-represented litigants	
		
Solicitor for the First Respondent:	Ms Rath of Sparke Helmore	
		
Second Respondent:	Submitting appearance save as to costs	

ORDERS
	MLG 3879 of 2019	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	ANANDKUMAR MAHENDRAKUMAR VYAS
First Applicant

HIRALBAHEN JASHVANTBHAI BHATT
Second Applicant
	
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE J YOUNG	
DATE OF ORDER:	11 December 2024	

THE COURT ORDERS THAT:

1.	The Applicants have leave to amend the Application filed 7 November 2019 to seek a writ of mandamus directed to the Administrative Appeals Tribunal.
2.	The Application filed on 7 November 2019 be dismissed.
3.	The Applicants pay the First Respondent’s costs in the fixed amount of $5000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
JUDGE J YOUNG
1	Before the Court is an Application filed on 7 November 2019 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek a judicial review of a decision of the second respondent (Tribunal) dated 2 October 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Temporary Business Entry (Class UC) (Temporary Work) (Skilled) (Subclass 457) visa (Visa). 
Context
2	The applicants are citizens of India. The first and second applicants are husband and wife, respectively.
3	On 1 December 2016 the first applicant (Applicant) applied for the Visa. The second applicant was included in the Visa application as a dependent of the Applicant. In the Visa application, the applicants’ nominated a migration agent as their authorised recipient and provided the email address <xxx@xxx.com> for correspondence. The Visa application provided that NJ Bakers Pty Ltd as the Trustee for Shah & Jain Family Trust would be the nominating employer (Proposed Sponsor). The nominated position was listed as Pastry Cook.
4	On 20 July 2017, the Department of Immigration and Border Protection (Department) emailed the applicants’ migration agent inviting the applicants to comment on adverse information received in relation to the Visa application. The Department advised that the applicants’ Proposed Sponsor did not have an approved nomination and as such, the applicants’ Visa application was unlikely to succeed. The applicants did not provide a response to the Department. 
5	On 29 August 2017, the Delegate refused to grant the applicants’ the Visa. 
6	On 14 September 2017, the applicants applied to the Tribunal for review of the Delegate’s decision. 
7	On 19 August 2019, pursuant to s 359A of the Act, the Tribunal emailed the Applicant inviting the applicants to comment on Department records which indicated the Applicant was not the subject of an approved nomination by a standard business sponsor and that on 14 August 2019, the Tribunal had affirmed a decision of a delegate to refuse the nomination of the Proposed Sponsor (s 359A Letter). The invitation was sent pursuant to s 359A of the Act which relevantly provides (as in force at the time): 
(1)	Subject to subsections (2) and (3), the Tribunal must: 
(a)	give to the applicant, in the way that the Tribunal considers appropriate 	in the circumstances, clear particulars of any information that the 	Tribunal considers would be the reason, or a part of the reason, for 	affirming the decision that is under review; and 
(b)	ensure, as far as is reasonably practicable, that the applicant 	understands why it is relevant to the review, and the consequences of 	it being relied on in affirming the decision that is under review; and 
(c)	invite the applicant to comment on or respond to it.
8	The s 359A Letter further informed the applicants’ that if the Applicant held an approved nomination which has ceased at the time of the Tribunal decision, or a nomination of an occupation has never been approved, the Applicant will not meet the criterion in cl 457.233(4)(a) of the Migration Regulations 1994 (Regulations), which is a mandatory criterion of the Visa. Clause 457.233(4)(a) of the Regulations at the relevant time provided as follows:
(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
9	On 30 August 2019, the Applicant provided a response to the s 359A Letter. In his response, the Applicant submitted that he had ceased employment with the Proposed Sponsor due to the nomination refusal and that he had been working part time as a baker with Coles, but that Coles were unable to provide sponsorship. The Applicant informed the Tribunal he had been living in Australia with his wife and daughter for 11 years. The Applicant requested the Tribunal reconsider his Visa application as he did everything required for the grant of the Visa at the time of the application.
10	On 2 September 2019, the Tribunal emailed the Applicant inviting the applicants to attend an in-person hearing on 2 October 2019 at 8.30am. 
11	On 2 October 2019, the applicants attended the hearing before the Tribunal and the Applicant gave evidence. The second applicant did not give evidence and the employer, Nehal Shah, was present as a witness. 
12	At the hearing on 2 October 2010, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicants the Visa. 
Tribunal decision
13	The Tribunal issued its statement of decision and reasons on 7 October 2019 (Tribunal Decision).
14	At paragraph [7] of the Tribunal Decision, the Tribunal identified that the issue was whether the Applicant satisfied the requirements of cl 457.223(4)(a) of the Regulations. The Tribunal stated that this clause required there to be an approved nomination of an occupation relating to the Applicant by a standard business sponsor that had not ceased.
15	At paragraph [8] of the Tribunal Decision, the Tribunal noted that the applicants were advised on 20 July 2017 that the Proposed Sponsor did not have an approved nomination for the Applicant. 
16	At paragraphs [9] – [11] of the Tribunal Decision, the Tribunal summarised the contents of the s 359A Letter and the Applicant’s response.
17	At paragraph [13] of the Tribunal Decision, the Tribunal noted that the Applicant agreed that he was not the subject of an approved nomination and that he had ceased working for the Proposed Sponsor in December 2017 before it closed in June or July 2018.
18	At paragraph [14] of the Tribunal Decision, the Tribunal found that a period of 21 months had passed since the Applicant had ceased working for the Proposed Sponsor and considered this to be a very adequate period in which the Applicant could have sought another sponsor to lodge a valid nomination in respect of him. 
19	At paragraph [16] of the Tribunal Decision, the Tribunal found the Applicant did not satisfy cl 457.223(4)(a) of the Regulations as there was no relevant nomination in relation to the Applicant by a standard business sponsor.
20	At paragraph [17], the Tribunal found that as the Applicant had not satisfied the primary criteria of cl 457.223(4)(a), the second applicant did not satisfy cl 457.321 of the Regulations.
21	Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicants the Visa.
Application for an extension of time
22	At the hearing of this matter before the Court, the Applicant appeared on his own behalf and on the behalf of the second applicant. The second applicant also addressed the Court.
Was the Application filed late?
23	Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the migration decision. 
24	The Tribunal Decision was made on 2 October 2019. An application for judicial review of that decision in this Court was required to be filed by 6 November 2019. The Application for judicial review was not filed until 7 November 2019. 
25	Accordingly, the Application was made one (1) day after the expiry of the statutory timeframe.
Should the Court be satisfied to make an order extending time?
26	Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order. 
27	The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension. 
28	The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)	the extent of the delay and the explanation for it;
(2)	any prejudice to the respondent if an extension were granted;
(3)	the impact on the applicant if the time was not extended;
(4)	the interests of the public at large; and 
(5)	the merits of the substantive Application.
29	In the Application filed 7 November 2019, the applicants stated the following with respect to why they say it is necessary in the interests of the administration of justice to extend time (without alteration):
I have been notified by the Tribunal on 7th October 2019. As per the guideline I am eligible to apply within 35 days from the date of notification. I would like the extension on the grounds of procedural fairness. It was beyond my control that Tribunal took the decision on 2nd October but notified only on 7th of October. If my application is not accepted, it will jeopardize my and my family’s future.
Delay and explanation
30	The Applicant submitted that the reason for the late filing of the Application was that the Tribunal made its decision of 2 October 2019 but notified him “only on 7 October 2019”. At the hearing, the Applicant submitted that he misunderstood the timeframe and believed the 35 days commenced from 7 October 2019 being the date he received the Tribunal Decision.
31	Firstly, I am unable to see how notification by the Tribunal of the decision five days after it was made in any way precluded the Application from being made within the statutory time frame. Secondly, ignorance of, or misunderstanding as to, the statutory timeframe cannot provide an adequate explanation for the delay. Whilst the delay is of a very short duration, I do not consider the Applicant has provided an adequate explanation for the delay.
32	This weighs against the grant of an extension of time.
Prejudice
33	Given the very short delay in filing I do not consider that the Minister will suffer any particular prejudice, other than as to costs, if an extension of time were granted.
34	However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]. 
35	I consider this to be a neutral consideration.
Public interest and impact on the applicants
36	The Applicant contends that if the application for an extension of time is not accepted by the Court, “it will jeopardize my and my family’s future”.
37	There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicants, which are considered below, will of course be relevant to this. 
38	It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17]. 
39	As to the impact upon the applicants, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, at [65]. 
40	I accept that a refusal to grant an extension of time would result in the applicants returning to their country of nationality. The Applicant has lived in Australia for 11 years and his daughter was born here. In those circumstances, I accept the Applicant’s submission that returning to India would jeopardise his and his family’s future.
41	This weighs in favour of the grant of an extension of time. 
Merits of the substantive application
42	While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time. 
43	The substantive Application provides one ground of review as follows (without amendment):
My application was refused on the ground of that my nomination for 457 visa was not approved. I had applied for 457 visa based on the nomination which was lodged by the nominator. He subsequently withdrew his nominate which is beyond my control. Now I have another employer who is wiling to nominate me for 452 visa. I am (undecipherable) for me procedural fairness and give me an opportunity to get nomination known (undecipherable) employer. Thank you.
44	The Minister contends that the proposed ground of review cannot succeed as no jurisdictional error has been identified by the applicants.
45	It is noted that the substantive Application only seeks an order that the Tribunal Decision be quashed and does not seek a writ of mandamus directed to the Tribunal. The Minister consents to the Application being amended for the applicants to seek the requisite relief to enliven the Court’s jurisdiction under s 476(1) of the Act. I will order accordingly.
Oral submissions at the hearing
46	At the hearing the Applicant further elaborated on the ground for review and made the following submissions:
(a)	the Tribunal failed to consider the volunteer work the Applicant was undertaking;
(b)	the Tribunal erred in not providing the Applicant further time to obtain an approved nominating sponsor; and
(c)	the Visa was refused on 29 August 2017. The Applicant’s daughter was born on 8 September 2017. The Applicant and his wife were busy with a newborn and economically stressed following the birth of their daughter and this impacted on the Applicant’s ability to find another employer who was willing to nominate him.
47	The above matters were not relevant to the question before the Tribunal. The only matter before the Tribunal was whether the Applicant met the requirements of cl 457.223(4)(a). On his own evidence, both before the Tribunal and this Court, the Applicant did not meet the requirements of cl 457.223(4)(a). However, and in any event:
(a)	at paragraph [13] of its decision, the Tribunal notes the Applicant’s evidence that he did volunteer work at another bakery; 
(b)	at paragraph [14] of its decision, the Tribunal noted that there was a period of 21 months between the Tribunal’s hearing and the cessation of the Applicant’s employment with the Proposed Sponsor. The Tribunal notes that this appears to have been “a very adequate period” in which the Applicant could have sought another sponsor who would lodge a nomination in respect of him but he did not do so;
(c)	at paragraph [14] of its decision, the Tribunal also noted the Applicant’s evidence that when the Visa was rejected “he had personal circumstances and also that the rules were changed in June/July 2017 after he lodged his application. At the time his first priority was to care for his wife who was pregnant.”; and 
(d)	at paragraph [15] of its decision said:
…In relation to the applicant’s request for additional time to allow him to get another employer to lodge a nomination, as the Tribunal explained at the hearing, because the 457 visa program is now closed, no other nomination can satisfy the requirements of cl 457.223(4)(a). Therefore additional time could make no difference to the outcome of this review. For this reason the Tribunal is not delaying the finalisation of this decision.
48	Accordingly, all the matters raised by the Applicant at the hearing were also raised before the Tribunal and considered by it.
Ground 1
49	By Ground 1 the Applicant contends that he did not have an approved nomination due to factors which were beyond his control, including that the original nomination lodged by the nominator was withdrawn. The Applicant further submitted that he now has another employer who is willing to nominate him and requested that the Court allow him a further period of time to submit a further nomination through an alternate employer.
50	As the Minister properly contends, the Applicant’s sole ground of review does not establish a jurisdictional error. The Applicant conceded this at the hearing. Accordingly, the Application must fail. It is uncontested that at the relevant time, being the time at which the Tribunal made its decision, the Applicant was not subject to an approved nomination. Accordingly, the Tribunal’s finding that the requirements of cl 457.223(4)(a) were not met was the only one open to it.
51	That the Applicant now contends that he has an employer willing to sponsor him is not to the point. As the Court endeavoured to explain to the Applicant, the Court’s role is to consider whether he ought be granted an extension of time; it cannot grant him a further period of time within which to find a nominating sponsor and apply for a visa, nor can it grant him a visa. Further, as was previously explained to the applicant, the 457 visa program is now closed and no nomination can now satisfy the requirements of cl 457.233(4)(a). Additionally, the Court raised with the Applicant that he may be assisted by obtaining legal advice as to his immigration status.
52	Accordingly, Ground 1 of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal. 
Conclusion
53	The Application in this case is one day outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice. 
54	Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. Most specifically, the sole ground of review is not sufficiently arguable to warrant an extension of time for the Applicant to prosecute it.
55	Accordingly, the Application is dismissed. 
56	The Minister seeks that the applicants pay its costs in the fixed amount of $5,000. I note that this is below the amount provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.	

Associate:

Dated:	11 December 2024