Akula v Minister for Immigration
[2020] FCCA 2661
•23 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKULA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2661 |
| Catchwords: MIGRATION – Employer Nomination (Permanent) (Class EN) visa – where the applicant had previously held a Subclass 457 visa – where the applicant had been employed by an organisation related to the company listed as nominee for visa application – where the company and applicant informed nomination was refused – where the applicant claimed a denial of natural justice based on failure to refer the matter for Ministerial intervention – no evidence that Ministerial intervention sought – show cause hearing – no reasonably arguable case shown – otherwise futile – no basis for exercise of residual discretion – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 349, 351, 359A, 417, 476, 501J Federal Circuit Rules 2001 (Cth), rr.44.11, 44.12, 44.13 |
| Cases cited: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 Spencer v The Commonwealth (2010) 241 CLR 118 |
| Applicant: | UDAY AKULA |
| Second Applicant: | NANDHINI CHETTI |
| Third Applicant: | AKIRANANDAN PATEL AKULA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1754 of 2018 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 17 September 2020 |
| Date of Last Submission: | 17 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2020 |
REPRESENTATION
| The First Applicant: | In person |
| Counsel for the First Respondent: | Mr T. Creedon |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The first applicant be appointed litigation guardian of the third applicant.
Pursuant to r 44(1)(a) of the Federal Circuit Court Rules 2001, the application dated 15 June 2018 be dismissed.
The first applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1754 of 2018
| UDAY AKULA |
Applicant
| NANDHINI CHETTI |
Second Applicant
| AKIRANANDAN PATEL AKULA |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 15 June 2018 the applicants seek judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 18 May 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant an Employer Nomination (Permanent) (Class EN) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. Despite the opportunity afforded to him, the first applicant (applicant) has not demonstrated an arguable case upon which jurisdictional error could be established. Indeed, he accepts that the delegate and Tribunal alike were bound to refuse it but complains of a want of procedural fairness in failing to exercise power to recommend that Ministerial intervention was warranted. As the Minister correctly observed, it has always been open to the applicant to seek Ministerial intervention and he has not done so. In any event, the Tribunal was bound to affirm the decision under review. An essential criterion for the grant of the visa was that the applicant’s sponsor held a valid nomination approval in relation to which: (1) the employer’s application had been refused; (2) an application for merits review of that refusal had been refused; (3) no application for judicial review of that refusal has been lodged; (4) even if jurisdictional error was ultimately established, referral of the application would be futile.
Background
The applicant, a male citizen of India aged 35 years, first came to Australia in 2009 where he undertook study in hospitality (patisserie) and business management in the period 2009-2011.
On 26 February 2015, the first and second applicants were married. The third applicant is their son who was born on 2 August 2016.
Before coming to Australia the applicant had obtained tertiary qualifications in hotel management, desktop publishing and a post-graduate qualification in computer applications, doing so in the period 2005-2008. The second applicant also holds post graduate qualifications, a Masters in Science, Business and Technology, which she obtained after studying at the Chaitanya Bharati Institute of Technology, India, in the period 2013-2015.
On 11 November 2016, the applicant applied for an Employer Nomination (Class EN) Employer Nomination (Subclass 186) visa in the Temporary Residence Transition stream and in which his wife and child were named as migrating family members. By his application the applicant’s migration agent specified that his nominated occupation was ICT Customer Support Officer and that he had been employed for the prior 10 years by Vensys Australia Pty Ltd (Vensys). Accompanying his application was a detailed submission in which the applicant set out his career objective, education, skills and contributions over the period 2008 – 2016 together with a series of supporting documents.
So far as material, cl 186.223(2) of the Migration Regulations 1994 (Cth) (regulations), provides that a criterion which must be satisfied for the grant of the visa was that the Minister had approved the nomination for the position to which the application related.
On 20 April 2017, a delegate of the Minister notified:
a)Vensys that a decision had been made refusing its application;
b)the applicant of the decision made refusing Vensys’ application;
seeking approval of its nomination of the position to which his visa application related. The applicant was further advised that, as a consequence: his own visa application could not be approved; if he did not respond to that communication his application would be refused; and, he would have a right to apply for review by the Tribunal.
It appears the applicant did not respond to that communication.
On 23 May 2017, a delegate refused the applicant’s application, doing so on the basis that the visa could not be granted unless the applicant satisfied the applicable criteria which, relevantly included that the Minister had approved the nomination made by the applicant’s employer to an application which met applicable requirements. The delegate refused the application on the basis that the applicant did not satisfy the requirements of cl 186.223(2) of the regulations and that he satisfied no other stream for which the visa might have been granted.
The delegate found that as the applicant did not satisfy the primary criteria for the grant of the visa, and as the second and third had not made any other claim satisfying the class of visa, they were not members of a family unit who satisfied such primary criteria and accordingly did not meet the requirements of cl 186.311(a) of the regulations.
On 8 June 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Following an application by Vensys for review of the delegate’s decision, on 7 March 2018, the Tribunal made a decision affirming the decision not to approve Vensys’ nomination of the position of ICT Customer Support Officer for the applicant’s role.
On 23 March 2018, the Tribunal invited the applicant to comment upon the circumstance that the position to which his visa application related was not the subject of an existing approval stating that this would be a reason, or part of the reason, for the Tribunal to affirm the delegate’s decision refusing his visa application, explaining:
·the position to which the (sic) your visa application relates is not the subject of an approved appointment made by the same organisation that nominated you as required by cl.186.233 of Schedule 2 of the [regulations] and, following the decision of the Full Federal Court in Singh v MIBPs [2017] FCAFC 105 [Singh] on 14 July 2017, this is a ‘one-off’ process. The Court observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet these schedule two criteria because the new nomination would not be the one in relation to which you made your declaration in your visa application.
(Emphasis in original).
While on 6 April 2018, the Tribunal granted an extension of time within which to respond to this information, on 20 April 2018, the applicant’s agent stated that the applicant had no further information to provide in support of his application.
On 26 April 2018, the Tribunal wrote to the agent acting on behalf of the applicants, inviting him to attend a hearing on 15 May 2018.
Following an invitation to do so, on 15 May 2018, the applicant attended a hearing before the Tribunal, such attendance being by telephone (with his representative and the second and third applicants also in attendance).
On 18 May 2018, the Tribunal made a decision affirming the decision to refuse the visa application and provided a statement of reasons for doing so (Reasons). In substance, the Tribunal referred to the Full Court’s decision in Singh and reasoned that it was not satisfied the nomination application made by Vensys had been approved and for that reason the applicant did not meet the criterion prescribed by cl 186.233(2) of the regulations. At the hearing, the applicant accepted that Vensys’ nomination application had been refused: [14]. The Tribunal further found that the applicant did not satisfy the criteria for any other stream for a Temporary Residence Transition visa and that the second and third applicants did not satisfy the requirements of cl 186.311 as members of a family unit of a person who held a Subclass 186 visa: [16]-[20].
It does not appear from the Reasons or any other documents comprised in the court book that the applicant had made any submission to the Tribunal that it should make a recommendation for Ministerial intervention on his behalf.
Procedural history
On 18 June 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons.
By his affidavit, the applicant deposed that his visa had been refused, by both the delegate and Tribunal, because his employer’s nomination application had ‘not succeeded’. In terms, the applicant deposed that he had no control over the employer’s affairs and had no part in its management but advanced a claim grounded upon a breach of natural justice stated as follows:
While I agree with the fact that the Tribunal could not have granted me the visa in absence of successful nomination, The Hon. Member did not invoke the power is conferred on them u/s 351J to recommend my case for Ministerial intervention. They could have considered other factors such as my contribution to Australian economy, my integration in the Australian Society, age of my child who was born in Australia as well as the fact that I have worked in my profession in so many years.
I therefore claimed that I was deprived Natural Justice and hence I urge your Hon. court to grant me the same by giving me an opportunity for a fair hearing and oblige. (Emphasis added)
On 27 July 2018, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 2 October 2019, orders were made, by consent, listing the matter for a show cause hearing pursuant to r. 44 of the Federal Circuit Rules 2001 (Cth) (Rules) on a date to be fixed. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken.
On 2 September 2020, the Minister filed submissions that were responsive to the matters in the application for review.
Show cause hearing
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[1] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[2] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[1]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[2] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: Act, s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Act, s 476(2).
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the Court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the Court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). In seeking to satisfy the Court that there is an arguable case, the applicants are confined to the relief sought and the grounds mentioned in the application for judicial review: r 44.13(1). If the Court is not so satisfied, it may dismiss the application: r 44.12. An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal.[3]
[3] MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).
As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled.[4]
[4] Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing. The power to grant summary judgment is expressed in permissive terms; the Court may give judgment and may order that it be dismissed generally or in relation to any claim.
In SZUTB v Minister for Immigration & Border Protection, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application.[5] In Siddique v Minister for Immigration and Border Protection,[6] Gilmour J explained that it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, a residual discretion remains to be considered.
[5] (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J)
[6] [2014] FCA 1352, [21].
Consideration
As the applicants were self-represented before me, I have examined the materials in the court book, the decisions of each of the delegate and Tribunal, the application for judicial review and supporting affidavit.
The grounds of review acknowledged that his employer’s nomination application had ‘not succeeded’ and accepted that the Tribunal could not have granted his application in those circumstances. In substance the applicant contends that the Tribunal committed error by reason that it did not make a referral for Ministerial intervention pursuant to s 351 of the Act. The grounds of review read:
My visa was refused since my employer did not succeed in the application of nomination on grounds that they did not meet certain requirements such as training benchmark. I have no control whatsoever in the company's affairs since I am just an employee and not part of the management.
My visa was refused by the Delegate of the Minister and the same was affirmed by the Hon. Member of the Tribunal since I did not meet the requirement of having successful nomination by my employer.
While I agree with the fact that the Tribunal could not have granted me the visa in absence of successful nomination, The Hon. Member did not invoke the powers conferred upon them u/s 351 J to recommend my case for Ministerial Intervention. They could have considered other factors such as my contribution to Australian economy, my integration in the Australian society, age of my child who is born in Australia as well as the fact that I have worked in my profession in so many years.
I therefore claim that I was deprived of Natural Justice and hence I urge your Hon. court to grant me the same by giving me an opportunity for a fair hearing and oblige.
In substance, the applicant contends that: he had no control over the company’s affairs; the Minister had the power to intervene; and he had been denied natural justice. The apparent basis on which a claim of the breach of natural justice arose was from the supposed failure of the ‘Hon Member’ to recommend Ministerial intervention in the case. Before me, the applicant reiterated his request for such intervention.
Resolution
I do not accept that there has been a want of procedural fairness. Division 5 of Pt 5 of the Act which concerns Conduct of review of Part 5-reviewable decisions provides that that division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: Act, s 357A(1).
Section 349, which lies within Div 3 of Pt 5 of the Act, identifies the powers of the Tribunal on review of Part 5-reviewable decisions and provides that the Tribunal may for the purposes of the review exercise all the powers and discretions that are conferred by the Act on the person who made the decision. Otherwise, the Tribunal may affirm vary or set aside and substitute a new decision or exercise the powers conferred by s 349 of the Act. However, s 349(4) of the Act provides that for the avoidance of doubt, the Tribunal “must not, by varying a decision or setting aside the decision and substituting a new decision, purport to make a decision that is not authorised by the Act or regulations.”
By s 351 of the Act, if it is thought to be in the public interest to do so, the Minister may substitute for the decision of the Tribunal made under s 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. This power may only be exercised by the Minister personally.
It would be inconsistent with the scheme of the Act to suggest that because the Tribunal may exercise all the powers and discretions that are conferred by the act on the person who made the original decision that the Tribunal could exercise the discretion conferred on the Minister by s 351 of the Act when that power may only be exercised by the Minister personally: Act, s 351(3).
I agree that there is no requirement in the Act that obliges the Tribunal to make, or consider making, a referral for Ministerial intervention and that this is not part of the Tribunal’s review function: cf Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251, [81]; AFG20 v Minister for Immigration & Anor [2020] FCCA 1361, [124]-[128]. Accordingly, had any error been committed in deciding whether or not to refer the applicant’s case to the Minister (which was not sought), any such failure could not amount to jurisdictional error.
The Procedural Advice Manual 3 (PAM3) Minister’s guidelines on ministerial powers ss 351, 417 and 501J states that a Tribunal may refer a matter to the Minister if it is satisfied there are unique or exceptional circumstances. Those guidelines, dated 11 March 2016, are expressly issued for the purposes of ss 351, 417 and 501J of the Act. They are not, and are not to be misunderstood as, a direction having effect under s 499 of the Act and do not expand the Tribunal’s review function: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43, [45].
Insofar as a complaint of natural justice is made, before any hearing the applicant had been notified pursuant to s 359A of the Act of the decision not to approve Vensys’ application for approval of the nominated position of ICT Customer Support Officer. The applicant was also notified, in advance of the hearing, that Vensys’ application for a merits review by the Tribunal had also been refused. He was also notified of the Full Court’s decision in Singh and of its effect. The applicant was invited to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: Act, s 360. He did so. The applicant had also been supplied with a copy of the delegate’s decisional record relating to the refusal of his application. Accordingly, the applicant was aware that the dispositive issue arising on review was, following the refusal of Vensys’ nomination application, whether he could satisfy the criterion prescribed by cl. 186.223(2) of the regulations. The applicant attended such hearing and it appears he made submissions. There is no evidence to suggest that the applicant requested the Tribunal to refer the matter for Ministerial intervention.
Further, by reason that cl. 186.223(2) of the regulations imposes a requirement that an employer’s nomination of the position for which the visa application relates has been approved, I accept that any error would be immaterial to its decision, as the Tribunal was bound to affirm the decision under review and would not involve jurisdictional error: Kaur v Minister for Immigration & Anor [2017] FCCA 564, [9]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [31]. For the same reasons, the grant of any relief would be futile as the applicant would be unable to meet the criteria for the visa on remittal.[7] Finally, as was pointed out in the Tribunal’s prehearing communication with the applicant, cl 186.223 of the regulations does not permit the substitution of a nomination approved by the Minister for a different position to that set out in the application. It is a ‘once off’ process.[8]
[7] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [39]; [88]-[90] (Mortimer J, Jagot and Bromberg JJ agreeing).
[8] Ibid.
The grounds of review do not disclose a reasonably arguable case.
Conclusion
From my examination of the Tribunal’s reasons and the material that was before it, I discern no arguable basis on which it could be said that the decision of the Tribunal was affected by jurisdictional error. I am not otherwise persuaded that the Court should exercise its residual discretion to allow the matter to go forward. The application should be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 23 September 2020
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