Akbar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 82
•29 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Akbar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 82
File number(s): PEG 7 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 29 January 2021 Catchwords: MIGRATION – Employer Nomination application – decision of the Administrative Appeals Tribunal – where the applicants failed to attend the Tribunal hearing – where remittal would be futile – application dismissed. Legislation: Migration Act 1958 (Cth), ss 349, 359, 359C, 360, 362B, 363A, 368, 476
Migration Regulations 1994 (Cth), reg 5.19
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Hossain v Minister for Immigration & Border Protection [2018] HCA 34
Lee v Minister for Immigration & Citizenship [2008] FCA 162
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 76 Date of hearing: 25 September 2020 and 21 January 2021 Place: Perth Applicants: The first applicant appeared in person and on behalf of the second applicant Counsel for the First Respondent: Ms G Ellis (25 September 2020)
Ms S Oliver (21 January 2021)Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 7 of 2020 BETWEEN: MOHAMMED SAADIQ MOHAMMED AKBAR
First Applicant
M. A. ALAWDEEN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicants in this matter are a family partnership which operates under the business name “Revolution Cars Perth” (the “business”) (Court Book (“CB”) 44). The business sells quality budget used cars and has been trading since 2016. Both applicants are directors of the business.
On 19 January 2017, the applicants lodged an Employer Nomination for a Permanent Appointment (CB 1-84). The business nominated Mr Mohamed Fehan Mohamed Nawsabreen for the position of Retail - Yard Manager at the business.
On 8 January 2018, a delegate of the first respondent (the “Minister”) refused the nomination application (CB 90-101). The delegate found that the applicants did not meet reg 5.19(4)(h) of the Migration Regulations 1994 (Cth) (the “Regulations”) as, in effect, the nominated position was not specified by the Minister in an Instrument.
The applicants lodged an application for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 16 January 2018 (CB 102-103). The applicants were assisted by a migration agent.
On 30 September 2019, the applicants were invited to provide information to the Tribunal pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”) (CB 109-112). The information sought included, amongst other things, company details, business structures, financial documents and various information relating to the nominated position. The Tribunal’s invitation continued:
The information should be received by 14 October 2019…
…
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. M.A Alawdeen & M Mohammed Akbar will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 15 October 2019, the applicants responded to the request and provided a variety of information (CB 113-141).
On 21 October 2019, the applicants were invited to attend a hearing before the Tribunal scheduled for 8 November 2019 (CB 143-145). The applicants indicated that they would attend the hearing on that date (CB 146-149).
On 4 November 2019, the Tribunal advised the applicants that it needed to reschedule the hearing to 5 December 2019 (CB 151-153). The applicants again indicated that they would attend on that date (CB 154).
The applicants failed to attend the hearing on 5 December 2019 (CB 155). The Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Act (CB 161) (the “Dismissal Decision”).
On 20 December 2019, the Tribunal confirmed the Dismissal Decision (the “Confirmation Decision”) (CB 165-166).
On 8 January 2020, the applicants applied for judicial review of the Tribunal’s decisions in this Court pursuant to s 476 of the Act. To succeed, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISIONS
Dismissal Decision
The Dismissal Decision provides as follows:
1. The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 5 December 2019 at 2:30pm AEDT (11:30am WST). The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2. The review applicants did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5). The applicants’ representative did attend the Perth registry of the Tribunal, and advised staff that her clients had contacted her this morning stating that they would not be attending the hearing due to their personal circumstances. However, no satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
Confirmation Decision
The Confirmation Decision provides as follows:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to approve a nomination under r.5.19 of the Migration Regulations 1994 (the Regulations).
2. On 5 December 2019 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4. As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
PROCEEDINGS IN THIS COURT
The judicial review application filed 8 January 2020 contains two grounds of review as follows:
1. Applicant argues that the refusal decision involved an error of law that the nomination did satisfy the legal requirement in subregulation 5.19(3) regulation and 5.19(4) of the Migration Regulations.
2. Applicant has the right to have FCC review and to have an opportunity for court hearing on his case according to SECT 476 (1) MIGRATION ACT 1958.
The applicants were given an opportunity to file an amended application, any affidavit evidence and an outline of submissions. No further documents were filed.
The materials before the Court include the judicial review application dated 8 January 2020, a Court Book numbering 166 pages (marked as Exhibit 1) and outlines of written submissions filed by the Minister on 24 August 2020 and 9 October 2020.
The matter first came before the Court on 25 September 2020. On that occasion the first applicant appeared on his own behalf and on behalf of the second applicant. The Minister was represented by Ms Ellis.
At that hearing, the Court highlighted an issue that appeared to arise from the materials. That issue is discussed in detail below. Noting that the Minister might need to make further inquiries, the Court adjourned the matter and provided the Minister and the applicants an opportunity to file further written submissions and affidavit evidence.
Written submissions were provided by the Minister in relation to the “new issue”. The hearing of the matter took place on 21 January 2021. The first applicant again appeared on behalf of himself and the second applicant. The Minister was represented by Ms Oliver of Counsel.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that “the business has closed down” but that he had come to the Court for assistance as “the nominee did everything right and met the requirements”.
With the agreement of the Minister and the first applicant, the first applicant was affirmed. He provided evidence that the business had ceased operations and was no longer a registered business.
The Court will address these oral submissions and the impact of the first applicant’s evidence below.
CONSIDERATION
Ground 1 of the judicial review application appears to take issue with the delegate’s decision. The Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4).
To the extent that ground 1 relates to the Tribunal’s decision, it must fail. The Tribunal did not determine if the applicants met reg 5.19 of the Regulations. It dismissed the application without taking any steps to consider whether the visa should be granted. Further, the applicants merely express disagreement or assert a belief that the nomination should have been accepted. Emphatic disagreement or a “strong belief” that the criteria had been met does not amount to jurisdictional error.
Ground 1 is, accordingly, dismissed.
Ground 2 does not identify jurisdictional error. It states that the applicants have a right to review under s 476 of the Act. This is uncontroversial. It does not, however, identify any error in the Tribunal’s decisions.
Ground 2 is, accordingly, dismissed.
Additional Issue
In its duty to self-represented litigants (as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the Court has considered the Tribunal’s decision for any error.
As noted above, a matter arose which required the Court to adjourn to enable the Minister to make further inquiries.
The issue that the Court identified arose from the invitation to provide information sent to the applicants by the Tribunal on 30 September 2019. The invitation was sent pursuant to s 359 of the Act. Critically, the invitation required that a response be received by 14 October 2019. Further, a request for an extension of time to respond had to be received by 14 October 2019.
The applicants’ representative emailed the Tribunal on 15 October 2019 at 3:41am as follows (CB 113):
…
As requested please see attached requested documents for my captioned client.
I have been trying to upload documents on online portal but it was not getting uploaded.
May I request you to accept the documents through email.
Appreciate your cooperation in this matter.
…
Section 359B(4) states:
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
Relevantly, the applicants’ response was received after 14 October 2019. No request was made on or prior to 14 October 2019 for further time to respond. As per the authority of Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, the Tribunal thereby had no power to extend time.
The effect of the failure to respond or request an extension by 14 October 2019 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicants lost any right and entitlement to appear. The Tribunal had no power to permit the applicants to attend a hearing. The Tribunal was to determine the application, in effect, on the papers.
However, the Tribunal here did invite the applicants to attend a hearing. The Tribunal then dismissed the application for non-appearance at a hearing that the applicants arguably had no right to attend.
At the hearing on 25 September 2020, the Court raised this with the Minister and made orders in the following terms:
1.By 9 October 2020, the first respondent file and serve any affidavit evidence and further written submissions addressing:
a. whether the applicants had a right to attend a hearing before the Tribunal; and
b.if the answer to that question is no, whether the Tribunal erred in proceeding under s.362B(1A)(b) of Migration Act 1958 (Cth).
2. By 23 October, the applicants have leave file and serve any affidavit evidence and written submissions in response.
3. The matter be adjourned for hearing on 27 October 2020 at 10.00am.
The Minister filed written submissions on 9 October 2020. The applicants did not file any written submissions. When asked at the hearing whether they had anything to add, understandably (given the legal complexity of the issue) the applicants did not raise any issues of relevance.
Did the applicants have a right to attend a hearing before the Tribunal?
The first question for the Court to consider is whether the applicants had a right to attend a hearing. If the answer is yes, then the issue goes no further. If the answer is no, then the Court must proceed to determine whether the Tribunal had the power to act as it did.
The reason that it is necessary to determine if the applicants had a right to attend a hearing arises from the fact that a response to the invitation to provide information was received in the early hours of 15 October 2019 which provided:
As requested please see attached requested documents for my captioned client.
I have been trying to upload documents on online portal but it was not getting uploaded.
May I request you to accept the documents through email.
Appreciate your cooperation in this matter.
The Minister made inquiries of the Tribunal to determine if any documents had been received prior to this email from the applicants’ agent. The Minister confirmed that the Tribunal had no record of any documents being received prior to 14 October 2019.
The Minister submits that it can be inferred that the Tribunal took the view that the applicants had either submitted the response to the invitation within time or that the Tribunal had extended the time to respond. This, it was argued, was based on the fact that the applicants were, in fact, invited to attend a hearing. However, the Minister also conceded that, even if that inference is drawn, it remains the case that the Tribunal had no power to invite the applicants to attend a hearing. The fact remains that the information (or the request for an extension if it was considered to be such a request) was received after the time to respond had expired. That fact itself is determinative. It means that there was no power to hold a hearing: the Act, ss 359C, 360(3) and 363A.
Despite the unfortunate circumstances here (which appear have to arisen because of a technical “glitch” in the Tribunal’s online portal) the Tribunal had no power to allow the applicants to attend at a hearing even if it determined that this was the “fair” thing to do.
Accordingly, the applicants had no right to appear at a hearing.
The answer to the Court’s first question is “No”.
Did the Tribunal have the power to dismiss pursuant to s 362B(1A)(b) of the Act?
The second question for the Court to consider is whether the Tribunal could proceed to decide the application as it did – i.e., to dismiss the application for “non-appearance”.
Minister’s Submissions
The Minister submits that s 362B is, relevantly, not stated to be subject to s 360(2) and (3). The Minister then submits that the invitation to attend the hearing was issued pursuant to s 360 and the applicants did not appear. Hence, the preconditions in s 362B(1) were met and the Tribunal had the ability to proceed under s 362B(1A).
The Minister further states that any error in inviting the applicants to a hearing was not a jurisdictional error. The Tribunal retained the jurisdiction to review the delegate’s decision. Its error in scheduling a hearing only went to the manner in which that review was to be conducted. It did not lack the characteristics necessary for it to be given force and effect by the statute as the Tribunal has the power to make a decision pursuant to s 362B(1A)(b): the Act, s 349(e).
The Minister further submits:
33… whilst the Applicants had (on the proper construction of sections 359C, 360(2), 360(3) and 363A) lost their entitlement to attend a hearing, the Tribunal’s decision to invite them to attend the hearing did not result in any unfairness to the Applicants. It did not deprive them of the possibility of a successful outcome; rather the error worked in their favour, in that it provided them with the opportunity to attend a hearing and make arguments that otherwise would not be available to them. That is particularly so when regard is had to the first hearing invitation letter that was sent by the Tribunal (CB 144), where the Tribunal indicated that it had considered the material before it and was unable to make a favourable decision on that information alone. Having been invited to attend a hearing, and having failed to attend, the Tribunal’s power under section 362B was enlivened. In those circumstances, the decision to dismiss the application under section 362B(1A)(b) was within the jurisdiction of the Tribunal and does not amount to jurisdictional error.
34 Further, in the Minister’s submission, the reference in the hearing invitation to the fact that Tribunal was unable to make a favourable decision in the matter on the basis of the material before it (CB 144) indicates that, had the Tribunal determined the matter on the papers alone, the outcome of the review would have been that the decision under review would have been affirmed. In those circumstances, any error that might be considered as going to jurisdiction in this case cannot have been material, and jurisdictional error cannot be established.
Consideration
The circumstances of this case are novel.
The Minister argues that s 362B is not “subject to” the operation of s 360(2) or 360(3) and, therefore, it is open to the Tribunal to dismiss an application under s 362B(1A)(b) if the preconditions in s 362B(1) are met.
The Court disagrees.
A consequence of the Minister’s construction is that the Tribunal could exercise the power in s 362B(1A)(b) in circumstances where an applicant, pursuant to s 360(2)(b), consents to the Tribunal deciding the review without a hearing. It is difficult to envisage how the Tribunal could dismiss an application for “non-appearance” in circumstance where an applicant has agreed to the Tribunal deciding the review without a hearing.
The Court is aware of matters where the Minister has conceded that if the Tribunal was to do so (i.e., dismiss an application under s 362B(1A)(b) of the Act when the applicant has consented to a decision without a hearing pursuant to s 360(2)(b)), then jurisdictional error arises.
It cannot be suggested that only s 360(2)(b) is “excluded” from s 362B. This would result in a strained, or compartmentalised, construction of the relevant provision. This is particularly so when the power to hold a hearing and the right to attend a hearing does not differentiate between any of the matters in s 360(2). The provisions are, in effect, “grouped”.
Accordingly, the Court is not satisfied that s 362B is available to the Tribunal if an applicant loses an entitlement to appear before it. As such, here, the Tribunal exceeded its jurisdiction in dismissing the application for non-appearance.
What remains, therefore, is to consider whether the error was, in any event, jurisdictional. An error is only jurisdictional if it has the effect of realistically depriving an applicant of a successful outcome.
In Lee v Minister for Immigration & Citizenship [2008] FCA 162 (“Lee”), the Federal Court dismissed an appeal from this Court where the primary judge withheld relief in the exercise of the Court’s discretion. In that case, the Tribunal invited the applicant to attend a hearing in circumstances where the applicant was not entitled to attend a hearing. The applicant appeared, and participated, in that hearing. The Court found that, while the Tribunal had exceeded its jurisdiction in holding a hearing when it had no power to do so (such that the Tribunal fell into jurisdictional error), the hearing did not deny the applicant procedural fairness or cause any injustice or prejudice. Accordingly, the Court withheld relief. It is noted, however, that in Lee relief was withheld as the Tribunal would have been bound to have affirmed the decision in any event (as the applicant did not have a sponsor).
While the Court withheld relief on the basis of “discretion” in Lee, in light of recent authorities, including Hossain v Minister for Immigration & Border Protection [2018] HCA 34, an error will only be jurisdictional if it had the possibility of depriving the applicant of a successful outcome.
Lee can be distinguished from what arises here. In Lee, a substantive decision on the merits was provided. Further, the Tribunal was “bound” to affirm the decision. Here, this is not the case. Nevertheless, the Court considers that there has been no denial of procedural fairness or injustice to the applicants as a result of the Tribunal exceeding its authority.
First, there was no “practical unfairness” or “practical injustice” caused by the Tribunal inviting the applicants to attend a further hearing. The invitation, by all accounts, was positive for the applicants. It gave them an opportunity that they otherwise should not have had to obtain a favourable outcome.
Second, in terms of proceedings under s 362(1B)(b), the Court cannot identify any practical injustice or practical unfairness. The Tribunal complied with the procedural fairness obligations that would otherwise have been owed to the applicants if they were in fact entitled to attend a hearing.
Finally, the Tribunal’s approach could not have realistically deprived the applicants of a successful outcome.
While the Tribunal was not “bound to affirm” the delegate’s decision in this case (as was the case in Lee), here (the Minister submits) the Tribunal was “going to affirm the decision in any event”. This is evidenced by the fact that the invitation to attend the hearing sent to the applicants stated:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
The Minister contends that this statement demonstrates that, had the Tribunal not invited the applicants to a hearing (which is the course it should have taken) the Tribunal would have come to the same conclusion in any event.
The Court agrees.
At its highest, the Tribunal’s decision to dismiss the application pursuant to s 362B(1A)(b) deprived the applicants of a written statement (as per s 368) which would have explained why their nomination was refused. That is, had the Tribunal not exceeded its jurisdiction by inviting the applicants to a hearing, the Tribunal would have come to the same outcome - the application would have been dismissed. A breach of s 368 does not itself amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. Nor does a failure to comply with s 368 invalidate a decision: Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108. Hence, the fact that the applicants did not have an explanation detailing any merit (or not) in the application does not change the fact that the outcome here would have been the same.
Accordingly, any error was not material. Where an error is not material, it does not amount to an error of a jurisdictional nature.
The Additional Issue fails to identify jurisdictional error.
FUTILITY
As noted above, the first applicant gave oral evidence on affirmation that the nominating business in which he is a partner (and which was, in effect, the subject of the decision) no longer exists. The first applicant explained that the business was “not doing well” and closed in or around November/December 2019. The business no longer employs anyone and is not trading.
This is critical because, in circumstances where the business is no longer operating and the “nominated position” is no longer available, the Tribunal would have no choice but to affirm the delegate’s decision were the matter remitted. The applicants simply could not meet reg 5.19(4)(b) or (d)(i). The business no longer operates and the nominated employee cannot be employed for a minimum of two years (as the business is no longer active).
The Minister also queried whether the applicants would have standing to continue with the application at the Tribunal given that the business is no longer operating. Without the benefit of further explanation on this point, the Court is not prepared to accept that this is the case. However, the Court considers that such an argument is certainly open to be made. Nonetheless, in light of the first applicant’s evidence that the partnership has dissolved and the business no longer operates, the Court accepts that even if the Court determined that there was jurisdictional error any remittal would be futile. The Tribunal would have no choice but to come to the same decision.
CONCLUSION
This is an unusual case. The circumstances that have arisen are novel. However, the Court is not satisfied that any jurisdictional error arises. Further, and importantly, the applicants’ business is no longer operational and the partnership (as nominator) cannot, in the circumstances, satisfy the requirements of reg 5.19 of the Regulations. Remittal would thus, on the evidence, be futile.
The application is, accordingly, dismissed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 January 2021
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