Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 21
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 21
File number(s): SYG 3150 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 January 2023 Catchwords: MIGRATION – Administrative Appeal Tribunal – Regional Employer Nomination (Permanents) (Class RN) visa – whether the applicant denied procedural fairness. Legislation: Migration Act 1958 (Cth) ss 347, 348, 359A, 360, 363
Migration Regulations 1994 (Cth) regs 1.12, 4.10, 5.19
Corporations Act 2001 (Cth) s 601AD
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC
Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
Minister for Immigration and Border Protection v Singh [2014] FCAGFC 1
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
SZULH v Minister for Immigration and Border Protection [2015] FCA 835
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 25 October 2022 Date of hearing: 25 October 2022 Place: Parramatta Solicitor for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Strugnell of MinterEllison. ORDERS
SYG 3150 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAMUN AHMED
First Applicant
SONIA KHATUN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
24 Janaury 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs.”
2.The application is dismissed.
THE COURT NOTES THAT:
A.There has been no order as to costs as there was no appearance by or on behalf of the First Respondent.
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 HUMPHREYS
Introduction
The applicants are citizens of Bangladesh. The first applicant is the primary applicant. The second applicant is the spouse of the first applicant. The applicants applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer visa”) on 1 March 2018. On 15 April 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Regional Employer visa.
On 3 May 2019, the applicants applied for merits review of the delegate’s decision to the Administrative Appeals Tribunal (“the Tribunal”). On 5 November 2019, the Tribunal affirmed the delegate’s decision not to grant the applicants their Regional Employer visa.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
The Administrative Appeals Tribunal decision
Paragraphs 1 to 8 of the Tribunal’s decision record provide the procedural history of the applicants’ visa application.
At paragraph 10 of the decision record, the Tribunal states that the issue in the matter concerned whether there was a nomination relating to the first applicant’s visa application.
At paragraph 11, the Tribunal states that the applicant was sent a letter pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”), which provided the following information (summarised).
•The delegate refused the visa application because the applicant did not meet the requirements of cl 187.233 to Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) as he was not the subject of an approved nomination. The secondary applicant’s visa was refused because she did not meet the secondary criteria. The nomination application by APG Impex Pty Ltd (“the Nominator”) identifying the applicant as the cook was refused on 13 March 2019.
•On 28 March 2019, the Nominator lodged an application for review of the decision to refuse their nomination. The Nominator was deregistered by ASIC on 23 March 2018.
•Under s 601AD(1) of the Corporations Act 2001 (Cth), a deregistered company ceases to exist as a legal; entity and as such, did not have standing to apply for, or continue with, an application for review of the delegate’s decision. The Tribunal wrote to the nominator inviting them to comment on the above information, however no response was received. Accordingly, the Tribunal found that the Nominator did not have an approved nomination, nor did it have a pending review as at the time of the first applicant’s visa application.
•A Subclass 187 visa requires applicants to meet the criteria of cl 187.233 of Schedule 2 to the Regulations, which requires the applicant to be the subject of an approved nomination. The applicant was invited to a Tribunal hearing. The Tribunal noted that, if the first applicant was not the subject of an approved nomination they would not be able to meet the criteria for the grant of the Regional Employer visa.
At paragraph 12, the Tribunal records that the first applicant was informed that a response or comment to the s 359A invitation was due by 23 September 2019. On 23 September 2019, the first applicant’s migration agent requested an extension of time with no explanation as to why this was required. The Tribunal hearing was re-scheduled for 2 October 2019 and the first applicant was granted an additional nine days, until 2 October 2019, to respond or comment. The first applicant responded to the s 359A letter on 30 September 2019 with the following:
•A copy of the ASIC online inquiry reference page and confirmation email dated 20 May 2019;
•A copy of an email from ASIC indicating the requirements for reinstatement of registration of a company and the estimated fee payable dated 25 June 2019; and
•Payment receipt from ASIC showing $5,722 having been paid, receipt number, lodgement number, dated 17 September 2019.
At paragraph 13, the Tribunal states that the first applicant was reminded during the hearing that he had been sent the s 359A letter on 9 September 2019 and the contents of that letter. At paragraph 14, the Tribunal records that at the hearing, the first applicant said that the Nominator had recently been re-registered by ASIC and that they had lodged a new review application with the Tribunal. The Tribunal noted that this information had not been previously been provided to the Tribunal. The First applicant was asked whether he could provide documentary evidence. The Tribunal afforded the first applicant 10 minutes to allow the applicant to speak to his migration agent.
At paragraph 15, the Tribunal noted that at the hearing it was told that the migration agent’s office would send to the Tribunal the relevant documentary evidence. Although the Tribunal did not receive the above email, it was shown the contents of the email which the first applicant received during the hearing and this was accepted. The information contained within the email included:
•From the ASIC website, the Nominator being registered with their next review being on 26 October 2019; and
•The Nominator’s review application from 21 October 2019 of the same refusal decision dated 9 May 2019 that was before the Tribunal and in which the Tribunal decided that it had no jurisdiction, on 15 May 2019.
At paragraphs 16 and 17, the Tribunal states cl 187.233 of Schedule 2 to the Regulations as being applicable in this matter. This clause requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia.
At paragraph 18, the Tribunal notes that the Nominator had lodged a second review application four days before the Tribunal hearing in this matter and that it was still awaiting allocation. The Tribunal further noted that the nomination was still not approved and, on review, decided it had no jurisdiction to review the delegate’s decision because the Nominator was not lawfully operating.
At paragraph 19, the Tribunal accepted that the Nominator had its ASIC registration reinstated and that the Nominator had lodged a second review application with the Tribunal relating to the 2018 nomination refusal. The Tribunal made a ‘no jurisdiction’ decision in May 2019 and the May 2019 decision was functus officio. At paragraph 20, the Tribunal states that where an applicant lodges a repeat application, the Tribunal has no jurisdiction where it has previously carried out its statutory duty in relation to the first application. At paragraph 21, the Tribunal accepted that another review application had been made by the Nominator, however this review application was a repeat application and therefore futile for want of jurisdiction.
At paragraph 22, the Tribunal noted that it had considered all relevant facts and matters and found that, on the evidence before it, that it was satisfied that the nomination had not been approved and there was no review application pending relating to the refusal of the Nominator’s nomination application. Accordingly, at paragraph 23, the Tribunal found that cl 187.233 of Schedule 2 to the Regulations was not met.
At paragraph 24, the Tribunal notes that the first applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direst Entry stream and that no claims had been made in respect of any other visa stream. As the requirements for seeking a visa in the Direct Entry stream had not been met, the Tribunal found that the decision under review must be affirmed.
Paragraphs 25 to 27 deal with the second applicant’s visa application as a secondary applicant. The Tribunal states that the second applicant is the spouse of the family head, being the primary applicant, and is considered a member of the family unit pursuant to reg 1.12 of the Regulations. The Tribunal states that to satisfy the secondary criteria in cl 187.311 of Schedule 2 to the Regulations, the secondary applicant must have made a combined application with, and be a member of the family unit for, a person who holds a Subclass 187 visa. As the Tribunal affirmed the decision of the delegate to refuse the first applicant’s visa, and because there was no other information before the Tribunal to indicate that the secondary applicant was a member of the family unit of a person who holds a subclass 187 visa, the Tribunal also affirmed the decision to refuse the second applicants Regional Employer visa.
Grounds of judicial review
The applicants’ grounds of judicial review are contained within an Initiating Application filed with the Court on 23 January 2020. The grounds are reproduced below as they appear in the application verbatim:
1. The tribunal should have given me more time before making the finding, considering the circumstances where my employer APG Impex Pty Ltd has re-registered and successfully lodged nomination review dated 21st October 2019.
2. The tribunal denies procedural fairness by refusing my case while nomination review is still pending.
The applicants’ submissions
The applicant appeared before the Court unrepresented. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and the respondent’s written submissions. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case.
The applicant, in a very frank and honest manner, told the Court he understood that as he did not have an employer sponsor he could not succeed in the application before the Court. He was asked, if that was the case, whether he wished to withdraw the application. He stated he would like a decision by the Court as it would give him some more time to make other arrangements to stay in Australia.
Consideration
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In relation to ground one, the first respondent notes that the applicant does not appear to have sought an adjournment at the hearing. Therefore, the first ground should be understood to contend that the Tribunal should have adjourned the review in relation to the applicants until the second review application by the nominating employer had been determined, before proceeding to make a decision in relation to the applicant.
On behalf of the first respondent, it was submitted the Tribunal has a general power to adjourn a review under s 363(1)(b) of the Act. The discretion to adjourn must be exercised reasonably, and an assessment of whether the Tribunal acted unreasonably in the exercise of a discretion is invariably fact dependent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84]. The Tribunal’s reasons are the focal point for any such assessment: Minister for Immigration and Border Protection v Singh [2014] FCAGFC 1 at [46] – [47].
The Tribunal accepted that the nominating employer had been reregistered with ASIC and had lodged a second review application. However, it found that the Tribunal had made a ‘no jurisdiction’ decision in respect of the first Tribunal application made by the nominating employer. As a result, the Tribunal considered it was functus officio. Further, the Tribunal found the second review application lodged by the nominating employer was in respect of the same decision and was therefore a “repeat application” which the Tribunal had no jurisdiction to review and was therefore futile.
As the Tribunal was satisfied that the nomination was not approved, and that there was no review application pending in relation to the refusal of the nominating employer’s application, clause 187.233 was not met, and the Tribunal determined to affirm the delegate’s decision.
The Minister acknowledged in their written submissions the Tribunal made an error in finding the Tribunal had no jurisdiction to review the nominating employer’s application because it was “a repeat application”. As the Tribunal found it had no jurisdiction, it did not carry out a review and expend its statutory power.
However, the Minister submitted that this error was not material as it did not deprive the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2]-[3]. This is because the Tribunal would not, and did not, have jurisdiction in respect of the second application because it was made out of time. That is to say, the Tribunal was correct to find that it did not have jurisdiction, its error was in respect of the reason it identified for coming to that correct conclusion.
It was submitted that where the Tribunal has received a valid application for a review of a reviewable decision and has carried out its statutory duty to review, the decision is no longer a reviewable decision: SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164. The Tribunal has no jurisdiction to review a delegates decision twice Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551. The Tribunal had no jurisdiction to review the nominating employer’s first application because the nominating employer did not have standing to apply for review of the employer nomination decision made pursuant to with reg 5.19 of the Regulations whilst the nominating employer remained deregistered, by virtue of its ceasing to exist as a legal person under s 601AD(1) of the Corporations Act 2001 (Cth).
In those circumstances, the first application was invalid and, as noted in SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [17] a review under s 348 of the Act cannot be carried out where no valid application has been lodged.
The second review application lodged by the nominating employer was lodged with the Tribunal 138 days out of time: reg 4.10(1)(d) of the Regulations and s 347(1)(b)(iii) of the Act. The time period in which the application for review must be filed is absolute and the tribunal has no discretion to extend the time in which an application may be made: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [49]. It was submitted the Tribunal did not have jurisdiction in relation to the second review application albeit for different reasons.
The Court is satisfied that the Tribunal did not have jurisdiction to hear the first review application, as at the time of the review application, the nominating employer was deregistered and therefore ceased to be a legal identity. Having found there was no jurisdiction, the Court accepts the submission of the first respondent that in fact the Tribunal did not carry out a substantive review of the first application. The Court does not accept that a finding by the Tribunal that it had no jurisdiction to carry out a substantive review of the second application on the basis it was a second review.
In the circumstances of this case however, the above point matters little. The second review application was filed out of time. The Court accepts that there is no capacity for the Tribunal to accept an application that is filed out of time and accordingly, the Tribunal was correct to find it did not have jurisdiction in respect of the second review application, but as conceded by the first respondent, for incorrect reasons.
The Court is satisfied that in the particular circumstances of this case, the error was not material, in that the error of the Tribunal could not have realistically changed the outcome. The Tribunal had no capacity to undertake a second review as the second review application was filed out of time. Ground one has no merit.
Ground two is an allegation that the Tribunal denied the applicant procedural fairness by refusing his case of a nomination review was still pending. This is a variation on ground one.
The first respondent submitted that the Tribunal complied with his procedural fairness obligations under Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule is applicable to reviews conducted under that Part of the Act: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [66].
It was submitted the Tribunal complied with s 360 of the Act by inviting the applicant to attend the hearing to give evidence and present arguments. The applicant attended. Further, it is apparent from the Tribunal’s reasons that it discussed with the applicant the dispositive issue in the matter being that cl 187.233 of Schedule 2 to the Regulations was not met, in that the applicant did not have an approved nominating employer. The Court agrees with this submission. There is no lack a procedural fairness on behalf of the Tribunal. Ground two has no merit
On behalf of the first respondent, it was also submitted that it would be futile to remit the matter back to the Tribunal for further consideration. Even if the Tribunal decision was affected by jurisdictional error (which was not conceded by the Minister) the operation of the legislative scheme is such that the applicant could never satisfy cl 187.233 of Schedule 2 to the Regulations which imposes “a singular requirement, which is either fulfilled or not fulfilled at the time of the decision’: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88].
Evidence was provided which indicated that the refusal of the initial nomination application was not the subject of any judicial review application. Further, as noted above, the Tribunal found the second review application that it had no jurisdiction. It would thus be futile to remit the matter as the Tribunal would have no choice but to make the same finding: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378 at [76]-[80]. The Court agrees with this submission.
As none of the grounds of judicial review have merit, the court has no option other than to dismiss the application with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 24 January 2023
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