Ali v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1131
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ali v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1131
File number(s): BRG 351 of 2023 Judgment of: JUDGE VASTA Date of judgment: 8 August 2024 Catchwords: MIGRATION - review of Administrative Appeals Tribunal decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth) – s 359 Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 8 August 2024 Date of hearing: 8 August 2024 Place: Brisbane Counsel for the Applicants: The First Applicant appearing on their own behalf and on behalf of the other Applicants Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: submitting appearances, save as to costs ORDERS
BRG 351 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OBAID ALI
First Applicant
SABAH KHATOON
Second Applicant
FATIMA OBAID (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed on 31 July 2023 be dismissed.
2.The First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,500.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
On 31 July 2023, the applicant, Obaid Ali, who is the first applicant, asked this Court to review a decision of the Administrative Appeals Tribunal (“the AAT/Tribunal”).
The background to the matter is that the applicant, his wife, who is the second applicant, and three of his children, who are the third, fourth and fifth applicants, had applied for a regional employer nomination visa. They did so on 27 February 2018. The applicant appointed a migration agent to represent him, and the migration agent provided a phone number and an email address to the Department. The applicant himself also had provided his own personal email address and phone number to the Department.
Now, it is a requirement of such a visa that the prospective employer, who was Roshan Transport Proprietary Limited, be given approval as a sponsor by the Department.
Roshan Transport had said that they wished to have approval for the position of transport company manager, and they were hoping to fill that position by (the applicant) Mr Obaid Ali being employed in that position. This was the basis of the applicant's regional employer nomination visa. The Department, though, declined to give Roshan Transport Pty Ltd approval for that position.
This meant that the application by Mr Ali was then doomed to failure.
The Department contacted Mr Ali and invited him to withdraw his application or to respond, within 28 days, as to whether he still wanted to proceed. Mr Ali’s representative said that the sponsor, Roshan Transport, would be seeking a review of the decision and that Mr Ali, his wife and children still wished to proceed with the application.
The matter was then heard by a delegate of the Minister. That delegate refused to grant the visa on the basis that the nomination of Roshan Transport had been refused and therefore Mr Ali could not meet the criteria. That also meant his wife and three children could not meet the criteria either. That decision was made on 9 August 2019.
The applicant asked the Tribunal to review the matter. It took some time for the Tribunal to review the matter. That is because the Tribunal first reviewed whether Roshan Transport should be given the tick of approval from the Department. That matter was considered by the AAT and, ultimately, in late 2022, the decision not to grant the sponsorship approval to Roshan Transport was affirmed by the AAT.
Now, with that matter then settled, the AAT invited the applicant to attend a hearing by telephone. That invitation was extended on 24 May 2023. The hearing by telephone was going to occur on 8 June 2023. The day before the hearing, a person from the migration agency that was representing the Applicant emailed the Tribunal to say that a representative and Mr Ali would be attending the hearing by phone. The representative also gave some updated details, including another email address for Mr Ali and another telephone number.
Later that day, that migration agent emailed the Tribunal to request a postponement of the hearing. The email said that the applicant could no longer attend the hearing due to “unforeseen circumstances”. The email did not explain anything further than that.
At 10:24 am on 8 June, the Tribunal wrote to the migration agent and advised that the postponement request had been considered, and that the Tribunal had decided not to postpone the hearing, and the hearing would then proceed as scheduled at 2:00 pm that day. The Tribunal advised that they would call the applicant on the phone number. This communication is reproduced at CB 136.
At 1:45 pm, the Tribunal attempted to call the applicant for the hearing, but the call was not answered. The Tribunal called the migration representative and was advised that there was a new migration agent who would complete an MR5 form, and that the hearing would not proceed as they were requesting a rescheduling of the hearing.
The Tribunal, at 3.08 pm on 8 June, said this - and I will quote from the reasons.
(1)The review applicant was invited under s.360 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal by telephone on 8 June 2023 at 2:00pm AEST. 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. To attend the hearing by telephone, the applicant was invited to call, at the specified time, the telephone number and unique conference ID specified in the hearing invitation. Detailed instructions on how to attend the hearing were included in the invitation. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice.
(2)The review applicant requested an adjournment, yet for non-specified reasons. The adjournment request was considered, and refused, such that the Tribunal hearing proceeded as scheduled. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the applicant called the telephone number in the hearing invitation and used the unique conference ID at the scheduled time, as instructed in the hearing invitation. There is no record of the applicant contacting the Tribunal by any other means at the scheduled time to explain why he had not used the telephone number and unique conference ID to attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that an appropriate invitation was sent pursuant to s.379A(5), and that the invitation has not been returned to sender. 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.
Having come to that decision, the Tribunal notified the applicant by email on 9 June 5.24 pm of its dismissal decision. That notification appears at CB 140 to 144. What the notification said was that if the applicant wished to apply for a reinstatement of the matter, they must do so within 14 days; that is, by 23 June 2023.
On 23 June 2023 at 5.21 pm, another migration agent from the same firm emailed the Tribunal to seek reinstatement of the applicant's matter on the basis that the applicant was unable to attend the hearing because the second applicant was experiencing stress and anxiety due to her pregnancy, and she was therefore unable to attend the hearing.
That representative acknowledged that the request for adjournment of the hearing had been denied but provided a medical certificate. The medical certificate stated that the second applicant had been "experiencing ongoing stress and anxiety related to her current pregnancy" and was therefore "unable to attend the Court hearing held on 8 June 2023". That medical certificate was dated 14 June 2023, six days after the hearing.
On 26 June, the Tribunal refused the reinstatement application and confirmed its original decision to dismiss the application. The reasons given by the Tribunal were these. I will read them:
(1)This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 9 August 2019 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) Subclass 187 Visas under the Migration Act 1958 (Cth) (‘the Act’).
(2)On 8 June 2023 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before the Tribunal at the time and date of the scheduled hearing.
(3)The review applicants were notified of the dismissal decision and given copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were advised that re-instatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for re-instatement within the 14-day period would result in confirmation of the dismissal decision.
(4)On 23 June 2023 at 5.21 pm the applicants applied by e-mail for re-instatement. The Representative of the review applicant advised that the review applicant did not attend the hearing on 8 June 2023 due to the Mrs Sabah Khatoon (one of the secondary review applicants) suffering from ongoing stress and anxiety, due to her pregnancy. The request for re-instatement was accompanied by a medical certificate dated 14 June from a general practitioner. Having considered the request, the Tribunal has declined to reinstate the matter, for the following reasons:
(a)The request for re-instatement was not received by the Tribunal until after the close of business for the Tribunal Registry on the final day to request re-instatement, such that a request for re-instatement was not received within the permitted timeframe.
(b) The medical certificate postdates the hearing date by six days.
(c)The medical certificate relates only to a secondary visa applicant and does not specify that the primary review applicant was personally medically unfit for the hearing on 8 June 2023.
(d)There is limited utility in holding the hearing, given that the nomination lodged by Roshan Transport Proprietary Limited was refused on 25 June 2019, meaning that the primary review cannot in any event satisfy the requirements of clause 187.223(3), and is thus ineligible for a subclass 187 visa.
(5)In these circumstances, the decisions under review are taken to be affirmed.
Decision
(6) The Tribunal confirms the decision to dismiss the application.
The applicant has come to this Court with two grounds of application. I will read them into the record:
(1)The grounds of which the application are made are due to the fact that I was was (sic) not granted. procedural fairness. I was unable to attend the hearing due to personal issues and was not given the opportunity to provide further submissions and the case was dismissed without hearing.
(2)My lawyer provided the reason for why I did not attend the hearing on 8 June 2023 because I had the reason of not attending the hearing because my wife Sabah Khatoon was suffering from stress and anxiety due to her pregnancy and the stresses with the hearing was very bad for her and the pregnancy and I had to care for her. But the Tribunal did not agree to reinstate my case and they said that the reason for that was received after the close of business but in the information sheet and my lawyer said that there was no time limit to say that the reason has to be received before the close of business. The Tribunal was not correct to say that my reason was not received in the permitted timeframe (as per original).
With regard to those two grounds, I will deal with them seriatim. The first ground says that there was no grant of procedural fairness. The exhaustive list of procedural fairness and natural justice considerations are contained in the Migration Act from section 359 and following. Those sections make it very clear that the Tribunal is obliged to invite someone to a hearing, and, upon the acceptance of that invitation, the person must attend the hearing. If it is that the person does not attend the hearing, and the Tribunal has not in any other way excused that attendance, then the Tribunal may dismiss the application without any further consideration of the merits of the matter.
If such an event happens, the legislation says that the Tribunal must notify the applicant of that decision and to inform the applicant that they have 14 days within which to apply for reinstatement. The Tribunal did everything that the exhaustive statement of procedural fairness and natural justice mandated them to do. It cannot be said that the applicant was not granted procedural fairness. It is not correct to say he was not given the opportunity to provide further submissions. The Tribunal complied with its duty. There is no merit in ground 1.
Ground 1, therefore, fails.
Ground 2 does disclose an error. The Tribunal purported to give as one of its reasons for confirming the dismissal that the application for reinstatement did not come within the prescribed time
In effect, the Tribunal said that 4 pm was the cut-off for the registry. So, therefore, the application arrived one hour twenty-one minutes after the close of business. The problem, with this reasoning, is that the legislation does not say that the application for reinstatement must be received by close of business on the 14th day. It simply says it must be received on the 14th day. There is no other condition as to when the application for reinstatement is to be received.
Therefore, the Tribunal was in error in saying that the application for reinstatement had been received outside of the prescribed time. The application for reinstatement was, in fact, received within the prescribed period and it was a valid application.
Notwithstanding that error, the Court must look to see if such an error is a jurisdictional error. The error will become a jurisdictional one if it is material to the outcome; that is, that if the error wasn't made, that there, realistically, could have been a different outcome.
What is clear is that, even though the Tribunal felt that the application was invalid because it was one hour and 21 minutes late, nevertheless the Tribunal grappled with the gravamen of the application. But it must be remembered that the application was for reinstatement. It is only if that application is successful that the substantive application can proceed.
The basis of the reinstatement application was because the illness of the second applicant prevented the first applicant from being able to attend. It should be borne in mind that this was a telephone appearance, and simply, the first applicant needed to be on the end of a telephone line. It didn't matter where this was, as long as the AAT could communicate with him.
The medical certificate purported to inform the AAT of the condition of the second applicant on the day of hearing, though the medical certificate was created some six days afterwards.
The Tribunal was correct to have some doubts about the ability of the medical practitioner to diagnose a problem that occurred six days beforehand, but notwithstanding that problem with the medical certificate, the medical certificate did not in any way give any reason why the applicant, Mr Ali himself, could not be on the end of the telephone on 8 June and communicate with the AAT.
The other reason for the confirmation of the dismissal was the futility of an application where an essential element just simply could not be found in the favour of the applicant; that is, the transport company's approval from the Department.
In those circumstances, it seems to me that, even if the AAT had correctly accepted the application for reinstatement as being lodged within time, those other reasons would inevitably have led to exactly the same result.
The applicant appeared before me today unrepresented but made very emotional pleas to the Court as to the circumstances that surrounded 8 June. He spoke passionately of how stressful his wife was feeling, and how it is that he felt as though he needed to support her and that she was getting very stressed about the hearing.
He said that he had told his migration agent to try and get a break for two or three days and that things should be right by then, but it didn't happen. He spoke about the fact that his employer still needed him and still employed him, even after the decisions had been made by the delegate to refuse the employer approval. The applicant gave the impression that he wants to be able to work in this country and to contribute to it.
Whilst those submissions do give some colour to the whole proceeding, nevertheless they cannot derogate from what the duty of this Court is. The duty is to review the decision of the AAT.
The AAT having concluded that they should confirm the dismissal of 8 June did not commit any jurisdictional error in coming to that decision, notwithstanding that they did commit an error in the formulation of that conclusion.
Unfortunately for the applicant and the family, that means that the Court is in the position where the only proper disposition of the Court is to dismiss the application with costs fixed in the sum of $6,500. That costs order is made against the first and second applicants only.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 1 November 2024
SCHEDULE OF PARTIES
BRG 351 of 2023 Applicants
Fourth Applicant:
HUZAIFA OBAID
Fifth Applicant:
SUMAIYA OBAID
0
0
1