Aryal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 375
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aryal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 375
File number: MLG 39 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2022 Catchwords: MIGRATION – Temporary Skilled visa - decision of the Administrative Appeals Tribunal – where cl 457.211 in Schedule 2 of the Migration Regulations 1994 (Cth) required that the first applicant hold a substantive visa or satisfy the criteria set out in Schedule 3 of Regulations – whether the first applicant’s failure to hold a substantive visa at the time of application was beyond his control – whether the Tribunal failed to address relevant factors – whether Tribunal took into account an irrelevant consideration – no jurisdictional error – futile in any event – application dismissed. Legislation: Migration Act 1958 (Cth), ss 351, 476
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), cll 457.211 & 457.321 in Schedule 2, criteria 3003, 3004 and 3005 in Schedule 3
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
CNS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 921
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Liu v Minister for Immigration and Citizenship [2010] FMCA 60
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 110
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Su v Minister for Immigration and Citizenship [2007] FMCA 318
SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 120 Date of hearing: 17 March 2022 Place: Perth Applicants: First applicant, in person Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 39 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEVI PRASAD ARYAL
First Applicant
RITA PANDEY
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The first applicant is a citizen of Nepal (Court Book (“CB”) 2 & 19). The second applicant is his wife (CB 3). She is also a citizen of Nepal (CB 3 & 18).
On 16 September 2015, the first applicant applied for a Temporary Business Entry (Class UC) (Skilled) (Subclass 457) visa (the “visa”) (CB 1-14). The second applicant was listed as a secondary applicant in that application (CB 3-4). At the time of the application, the first applicant was not the holder of a substantive visa (CB 65).
On 10 November 2015, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 64-67). The delegate determined that the first applicant did not satisfy the requirements set out in cl 457.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the first applicant “was not the holder of a substantive visa because of factors beyond his control” (as required by criterion 3004 of Schedule 3 of the Regulations) (CB 65). The delegate found that the second applicant also failed to meet the criteria for the visa and was refused the visa (CB 67).
On 25 November 2015, the applicants applied to the Administrative Appeal Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 68-70).
On 25 January 2017, the Tribunal emailed the applicants inviting them to comment on information that indicated that the first applicant had not held a substantive visa since 7 August 2015 (CB 76-80).
On 8 February 2017, the applicants (through their registered migration agent) responded to the invitation to comment by email and provided submissions and supporting documents to the Tribunal (CB 83-113).
On 14 February 2017, the Tribunal emailed the applicants inviting them to attend a hearing scheduled for 22 March 2017 (CB 114-117).
On 22 March 2017, the applicants appeared before the Tribunal to give evidence and present arguments in relation to their case (CB 126-128). The applicants were assisted by their migration agent and an interpreter in the Nepalese language (CB 126-127).
Following the hearing, the applicants were given an opportunity to provide further comments and information in writing. They were given until 5 April 2017 to do so (CB 128).
On 5 April 2017, the applicants’ representative emailed further submissions and further supporting documents to the Tribunal (CB 129-170).
On 15 December 2017, the Tribunal affirmed the decision not to grant the applicants the visa. As discussed in detail below, overall, the Tribunal was not satisfied that the matters raised by the applicant were causative of the applicant's visa status. As such, the Tribunal determined, the first applicant did not satisfy 3004(c) in Schedule 3 of the Regulations for the purposes of cl 457.211 in Schedule 2 of the Regulations (CB 194-195 at [129] & [136]).
On 8 January 2018, the applicants filed an application for judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth). To obtain relief from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as was the case here) the first applicant appeared before the Court without legal representation and had difficulty articulating his concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”). In that context, a more detailed overview of the Tribunal’s decision is beneficial.
The Tribunal’s decision is 25 pages long and spans 169 paragraphs (CB 177-199). The final two pages of the decision contain extracts of relevant legislative provisions contained in the Regulations.
The Tribunal began by identifying the delegate’s decision under review and the relevant statutory framework:
2.The applicants applied for the visas on 16 September 2015. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
3.The delegate refused to grant the visas on the basis that the first-named applicant (‘the applicant’) did not meet the requirements of criterion 3004 of Schedule 3 and, therefore, clause 457.211 of the Regulations. Specifically, the delegate was not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control. The second-named applicant was refused the Subclass 457 visa because she did not meet the requirements of clause 457.2321 of the Regulations, given that she was not the member of a family unit of a person who holds a Subclass 457 visa.
The Tribunal noted that, on 25 January 2017, it had invited the applicants to comment on the information before it – specifically, “the departmental records relating to the [first] applicant’s immigration history” (at [6]). The Tribunal acknowledged that it had received “written submissions and additional information from the applicant’s representative in response to that invitation” (at [7]).
The Tribunal then summarised the core issue in this case, as follows:
10.The issue in this case is whether the applicant meets the requirements of clause 457.211. Relevantly to this matter, clause 457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy clause 457.211 so long as the last substantive visa they held was not one of those listed above and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
The Tribunal determined that cl 457.211 in Schedule 2 of the Regulations applied to the first applicant as he was in Australia when the visa application was lodged on 16 September 2015 (at [11]).
The Tribunal noted that there was no evidence before it which showed that the first applicant held a substantive visa at the time of the visa application as required by cl 457.211(a) in Schedule 2 of the Regulations. The Tribunal noted that the applicants’ representative did not dispute those matters and the first applicant confirmed those matters in his oral evidence (at [13]-[14]).
On the basis of the above, the Tribunal found that the first applicant did not meet the requirements of cl 457.211(a) in Schedule 2 of the Regulations (at [15]).
The Tribunal then turned its attention to determining whether the applicant met the alternative requirements of cl 457.211(b) in Schedule 2 of the Regulations (at [16]). Given that the last substantive visa held by the first applicant was a Subclass 457 visa which expired on 7 August 2015, the Tribunal determined that, at the time of the visa application, the first applicant met the requirements of cl 457.211(b)(i) in Schedule 2 of the Regulations (at [17]).
The Tribunal then proceeded to consider whether the applicant met the additional requirements in cl 457.211(b)(ii) in Schedule 2 of the Regulations which, in turn, require criteria 3003, 3004 and 3005 in Schedule 3 to the Regulations to be satisfied.
Criterion 3003
The Tribunal understood Criterion 3003 to apply to applicants “who have not held a substantive visa since 1 September 1994 and were either an illegal entrant, or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date” (at [19]).
The Tribunal noted that, pursuant to s 359A of the Act, it had brought to the applicants’ attention departmental records which showed that the first applicant was granted a Subclass 457 visa on 18 July 2014. In light of that evidence and the Tribunal’s understanding of the applicability of criterion 3003, the Tribunal found that the applicant was the holder of a substantive visa after 1 September 1994. As such, the requirements in criterion 3003 did not apply to the first applicant (at [20]-[21]).
Criterion 3004
The Tribunal acknowledged that the “central issue” in the case before it was whether the first applicant met the requirements of Criterion 3004 in Schedule 3 of the Regulations (at [22]).
The Tribunal continued:
23.Criterion 3004 requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by him.
24.In addition, the Tribunal must be satisfied that the applicant would have been able to satisfy the criteria to be granted the visa on the day he last held a substantive or criminal justice visa or last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and that the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
Applying these requirements to the applicants’ case, the Tribunal noted that the first applicant advised the Tribunal that “he had mistakenly believed that the Subclass 457 visa granted to him on 18 July 2014 was valid for a period of 4 years” (at [25]). Further, the first applicant explained that he and the second applicant only became aware that their Subclass 457 visas had ceased to be valid on 7 August 2015 in September 2015 when they attempted to enrol their son in a primary school (at [26]).
The Tribunal noted that the first applicant and his representative accepted that the requirements of Schedule 3 of the Regulations had to be met for the visa to be granted (at [26]).
In relation to the requirements in Schedule 3 to the Regulations, the Tribunal found as follows (at [27]):
(a)the first applicant was subject to paragraph (a) of criteria 3004 because he ceased to hold a substantive visa after 1 September 1994;
(b)when the first applicant lodged his application for the Subclass 457 visa on 16 September 2015 he did not hold a substantive visa; and
(c)as a result of findings above, the first applicant needed to meet all of the subsequent six distinct requirements contained in paragraphs (c) to (h) of criterion 3004.
Criterion 3004 paragraph (c) – Factors beyond the applicant’s control
The Tribunal explained that criterion 3004(c) in Schedule 3 to the Regulations requires the Tribunal to consider whether the first applicant became a person who was not the holder of a substantive visa because of factors beyond his control and that, in considering criterion 3004(c) in Schedule 3 to the Regulations the Tribunal had had regard to the relevant jurisprudential authorities, including Liu v Minister for Immigration and Citizenship [2010] FMCA 60 (at [28]-[29]).
Having assessed the relevant authorities, the Tribunal emphasised the “subjective” nature of any assessment as to whether a factor could be said to be “beyond an applicant’s control” for the purposes of criterion 3004 in Schedule 3 to the Regulations. The Tribunal also discussed the extent to which that assessment encompasses acts and omissions of an applicant’s agent (at [30]-[32]).
The Tribunal also noted that it had had regard to the departmental policy guidelines in the Procedures Advice Manual (“PAM3”) (at [33]).
The Tribunal then described its approach to PAM3, as follows:
34.Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. As a result, having regard to the relevant case law and policy, it is a question of fact and degree, having regard to all the surrounding circumstances whether a person ceased to hold a substantive visa because of factors beyond their control.
The Tribunal then detailed the applicant’s reasons for why he ceased holding a substantive visa as follows:
35.In this case, the applicant confirmed at the hearing that he had been in good health and not involved in any accidents in the period leading up to and when his visa application was lodged with the Department.
36.In his section 359A response the representative argued on behalf of the applicant that the latter became unlawful due to factors beyond his control:
…
It is a general understating on the community that SC 457 visa is granted for 4 years unless it is a new business. We even know that it can be granted for a day also. In practice, usually employer sponsor for 4 years. The agent had advised that the visa was for 4 years. Our client relied on that advice. It was later advised that the agent did include 48 months but the Department had made an error. It was too late to rectify the error as our client was already without a visa. I am not sure if the decision could be vacated to place our client in the favourable position. If that assertion by the agent is true then this situation should also be noted. The information could easily be obtained from visa application.
The reliance was so great that our client acted heavily on their detriment. They had invited their parents. They had also bought a plane ticket for the child. It was unfortunate that he could not come. It is important that the child needs to come for the check up as the medical facility in Nepal is not adequate. The wife had also bought a ticket to go and visit Nepal. That ticket had also been cancelled. It is reasonable to expect that had the [sic] our client known about the visa expiry, they would not have committed those action [sic].
They only found out that they did not have visa was when they went to enrol their son. Please find letter from school.
Our client comes from culture where they have high trust in their superior. My client is a skilled trade person and not proficient reader. It is not under his control to think the way he did to his own detriment. If his reliance could have been controlled then he would not be in this position. That is his nature. He can minimize in future but cannot control and definitely could not at that time.
Please also find letter from his previous sponsor of what had happened.
… It was a difficult period for them as Rita’s god father had expired on 1 August 2015. The visa expired on 7 August 2015. She was very close to him. In that period the last thing on her mind would be to think about the visa expiry. The sadness in partner will definitely affect the whole family. The death of god father is beyond their control.
37.The applicant confirmed these claims during his oral evidence at the Tribunal hearing. These claims were also reiterated in the post-hearing submission provided to the Tribunal on 5 April 2017.
38.As a result, the applicant claimed that on 16 September 2015, when he lodged his visa application, he was not the holder of a substantive visa because of the following factors that were beyond his control:
•The Department had admitted making an error in granting the applicant’s original Subclass 457 visa for a period of less than 4 years, which it could not subsequently rectify;
•The applicant had received incorrect advice regarding the duration of his original Subclass 457 visa from his former migration agent, and the applicant had relied heavily, and to his detriment, on this advice;
•The applicant’s cultural background and mind set, combined with his status as a skilled tradesperson who is not a proficient reader, meant that he was inclined to defer to and not question those in positions of authority, so that his reliance upon his former migration agent was a factor beyond his control; and
•The applicant’s personal circumstances in August 2015, including the stress surrounding the death of the second-named applicant’s godfather, the medical conditions affecting the parties’ young son, the need to make arrangements for his school enrolment and the applicant’s parents’ visit to Australia, were all factors beyond the applicant’s control.
The Tribunal then considered whether any of these factors reasons constituted “a factor beyond the applicant’s control” as required by paragraph (c) of criterion 3004 of Schedule 3 to the Regulations.
Alleged Departmental Error
The Tribunal explained that the applicant and his representative had contended that the Department had admitted making an error in granting the applicant's original Subclass 457 visa for a period of less than 4 years (which, it had advised the parties, it could not subsequently rectify). Specifically, the applicant claimed in submissions to the Department (dated 19 October 2015) that the Compliance section of the Department was “very surprised that the computer had only generated a one year and three week 457 visa” (at [40]). This, the applicant contended, was a factor beyond his control that led to him not holding a substantive visa at the time of the visa application in September 2015 (at [41]).
The Tribunal determined that there was no evidence before it which indicated that a departmental officer had actually advised the applicant about an alleged mistake in the length of period for which that initial Subclass 457 visa was granted (at [42]).
Similarly, the Tribunal found there was “little in the evidence” that indicated that the applicant’s former migration agents had asked the Department to grant that initial visa for a period of 4 years (at [43]-[44]).
The Tribunal continued:
45.Notably, Subdivision 457.5 of Part 457 in Schedule 2 to the Regulations sets out when a Subclass 457 visa is in effect. Specifically, at all material times, clause 457.511 provided that, where the applicant is in Australia at the time of grant, the visa can be granted “for a period of not more than 4 years from the date of grant”.
46.Accordingly, contrary to the representative’s submission dated 5 April 2017, the Regulations contemplate that a Subclass 457 may be granted for a period of time that is less than 4 years. Indeed, on 8 February 2017 the applicant’s then representative (who belongs to the same migration firm as his current representative) recognised that a visa could be granted for a day.
47.Consequently, the Tribunal is not persuaded that the grant of the applicant’s Subclass 457 visa in July 2014 for a period of one year and 3 weeks was an “absurd outcome”23, as asserted by his current representative on 5 April 2017.
The Tribunal accepted that the applicant may have mistakenly believed that his Subclass 457 visa was granted for a period of 4 years, however, “there was little in the evidence” that the actual grant of the visa for a shorter period was in any way unlawful. Nor, the Tribunal noted, had the applicant suggested that the departmental letter sent to him regarding the grant of his 2014 Subclass 457 visa misled him about the duration of that visa – in terms of not correctly evidencing the date upon which his visa would cease (at [48]-[49]).
The Tribunal continued:
50.Importantly, and as discussed below, whilst the applicant advised the Tribunal that he had received the departmental letter notifying he had been granted a Subclass 457 visa on 18 July 2014, he has not provided the Tribunal with a copy of that letter.
51.This is in circumstances where the Tribunal granted the applicant additional time after the hearing to submit anything further that he wanted it to take into account in relation to the application for review. For example, the applicant provided departmental correspondence relating to his past and present sponsoring employers’ business sponsorship and nomination applications, as well as the letters relating to the grant of Subclass 600 Visitor visas to his parents.
52.However, he has not provided any evidence to confirm that the Department did not correctly inform him of the duration of his visa in July 2014. Given that the applicant has readily provided other departmental correspondence to the Tribunal in support of the review, the Tribunal gives greater weight to his failure to submit the 2014 visa grant notification letter than it does to his claim that the Department admitted it had made a mistake about the duration for which it had issued his Subclass 457 visa.
53.As a result, the Tribunal finds that the Department had correctly informed the applicant of the duration of his Subclass 457 visa at that time. Accordingly, the Tribunal does not accept that the duration of the Subclass 457 visa granted to the applicant was a factor beyond his control that led to him being a person without a substantive visa at the time of application in September 2015. As outlined below, this is especially so when the applicant has admitted to not properly reading the departmental notification letter that informed him of the duration of the visa granted to him.
Overall, the Tribunal was not satisfied that the evidence before it demonstrated that there was a departmental error in relation to the grant of the applicant’s visa in July 2014 that could be said to constitute a factor beyond his control that led to him being a person who did not hold a substantive visa at the time of application (at [54]).
Alleged Incorrect Advice from the Former Migration Agent
In relation to this issue, the Tribunal noted that, at the hearing on 22 March 2017 and in their submissions dated 5 April 2017, the first applicant had argued that he had relied on incorrect (and possibly negligent) advice from his former migration agent and that this “was a factor beyond his control that led to his status as a person who did not hold a substantive visa on 16 September 2015” (at [55]).
The Tribunal explained that the first applicant had claimed that his former migration agent had told him that the visa granted on 18 July 2014 was valid for 4 years and the first applicant had stressed that he had relied on this advice and was unaware that his visa was only valid until 7 August 2015 (at [56]).
The Tribunal acknowledged that the applicants were “cooperative witnesses” but noted that it was also “mindful” of its inability “to assess the credibility of the former migration agent as a witness or to hear his account of the relevant events” (at [57]).
The Tribunal determined that the applicants’ representative was their agent and that the general principles of agency law applied to the relationship between the applicants and their representative (at [58]).
However, the Tribunal determined that, apart from the oral evidence and written submission provided to it in the course of the review, there was “little in the evidence” indicating that the former migration agent did provide incorrect or negligent advice to the applicants (at [62]).
In this regard, the Tribunal placed weight on the fact that both the first applicant’s own statement dated 7 February 2017 (CB 99-100) and the submissions provided by his current representative dated 8 February 2017 (CB 83-85) did not attribute any misunderstanding about the duration of the Subclass 457 visa to advice by the former migration agent. Rather, both attributed any misunderstanding to factors relating to the first and second applicants’ personal circumstances (at [64], [66] & [68]-[69]).
After making assessments about the propensity of the first applicant to act in reliance on advice given by his former migration agent, the Tribunal determined that any reliance “does not, of itself, necessarily demonstrate the type of the professional incompetence or negligence the Courts have generally required in order to grant relief to an applicant” (at [74]). The Tribunal instead took the view that there was “little in the evidence to suggest, that his former migration agent acted outside the scope of authority the applicant[s] conferred upon him in relation to this visa application” (at [79]).
Overall, the Tribunal was “not satisfied that the evidence demonstrates that the applicant’s former migration agent incorrectly informed him that the Subclass 457 visa granted in July 2014 was valid for 4 years” (at [84]). In this regard, the Tribunal gave:
86.…greater weight to the applicant’s oral evidence that his former migration agent had emailed him a copy of the departmental letter notifying him of the grant of the Subclass 457 visa in July 2014, but that he did not properly read that letter.
On the basis of the evidence before it, the Tribunal was :
87.…not satisfied that the advice and/or conduct of the applicant’s former migration agent, or his reliance upon this individual, meant that he was not the holder of a substantive visa on 16 September 2015 because of factors beyond his control.
The applicant’s cultural background and employment status
The Tribunal noted that the applicants’ representative had made submissions that the relevant test for the purpose of criterion 3004(c) in Schedule 3 of the Regulations was “subjective” and had “to be determined by assessing whether what had happened to the applicant was within his control in a practical or realistic sense” (at [88]). The representative further contended that the Tribunal should make that assessment on “a holistic basis having regard to the applicant’s nature, cultural background, ability to control his emotions, and his status as a skilled tradesperson who is not a proficient reader” (at [89]). In this regard, the applicants’ representative stressed that the applicants “promptly” lodged their visa application in September 2015 (once they became aware that the initial Subclass 457 visas granted to them on 18 July 2014 had expired in August 2015) (at [90]-[91]).
The Tribunal accepted that the first applicant “acted quickly” to lodge the visa application once he became aware of the expiry of the initial Subclass 457 visa (at [92]). However, on the “whole of the evidence before it”, the Tribunal did not accept that social circumstances “either on an individual or cumulative basis, constitute factors that were beyond [the first applicant’s] control that led him not to have a substantive visa in September 2015” (at [93]).
In particular, the Tribunal did not accept that the first applicant’s English language skills affected his ability to read and comprehend the visa grant notification letter relevant to the granting of the Subclass 457 visa in July 2014 (at [96]). In making this finding the Tribunal attached weight to the fact that the first applicant had engaged in post-secondary education courses exclusively instructed in the English language in both Nepal and Australia and had been working in Australia since he had arrived (at [97]-[100]).
The Tribunal concluded that the failure to properly read and understand the departmental letter relating to the grant of the initial Subclass 457 visa was “a circumstance within the applicant’s control”. Relevantly, the first applicant’s apparent ability to read and comprehend the detail of that letter would have “allowed him to have lodged his new Subclass 457 visa at a time when he was the holder of substantive visa” (at [102]).
The Tribunal then assessed another aspect of the first applicant’s “cultural background and status” – namely, the “applicant’s cultural mindset” which, the first applicant and his representative contended, “predisposed him” to defer “without question” to his former migration agent’s advice (at [103]).
The Tribunal noted that the applicants’ representative had provided scant evidence “to confirm that a person from Nepal is culturally inclined to unquestioningly accept what they are told by those in positions of authority” (at [104]). Further, the Tribunal attached greater weight to the alternative evidence in the applicant’s statement dated 7 February 2017 in which he accepted that he had failed to check the expiry date of his visa and the oral evidence given on 22 March 2017 in which the first applicant acknowledged that “he had not properly read the departmental visa grant notification” (at [107]). The Tribunal also noted the letter of support sent to it by the first applicant’s general practitioner dated 4 April 2017 which characterised the applicant’s lack of substantive visa as “a genuine mistake” and “an oversight” (at [108]).
On the basis of the above, the Tribunal concluded:
109.As a result, the Tribunal is not satisfied that the subjective factors the applicant and his representative have put forward such as his English language skills, status as a tradesperson who is not a proficient reader, ability to control his emotions and cultural factors adequately explain the applicant’s acknowledged failure to take the practical and realistic step of properly reading the departmental documentation relating to the grant of his visa in 2014 and its actual duration.
The applicants’ personal and surrounding circumstances in August 2015
The Tribunal then assessed the first applicant’s evidence about the illness and subsequent death of the second applicant’s godfather on 1 August 2015 (who, it was claimed, raised the second applicant and who was very close to her) and the applicants’ son’s medical condition.
In relation to the death of the second applicant’s godfather, the Tribunal noted that the first applicant had claimed before the Tribunal that “in their grief they did not check the duration of their Subclass 457 visa at that time” (at [112]-[113]).
Citing a translated death certificate before it (CB 104-105), the Tribunal accepted that the second applicant’s godfather had died on 1 August 2015 (which would have been around 6 days before the Subclass 457 visa granted on 18 July 2014 was due to expire (that is, on 7 August 2015)). Accepting the “deep sense of loss” the applicants experienced at this time, the Tribunal expressly noted that “the death of the second-named applicant’s godfather was not a circumstance within the [first] applicant’s control” (at [114]).
However, the Tribunal found that this unfortunate circumstance did not extend to being a “factor that caused the applicant to be a person who did not hold a substantive visa on 16 September 2015”. In making that finding, the Tribunal noted that it had given weight to evidence given by the first applicant that the second applicant did not travel to Nepal to attend her godfather’s funeral as she could not secure leave from her employer. Overall, the Tribunal found that there was “little in the evidence” demonstrating that the second applicant’s loss “made it impractical or unrealistic” for the first applicant to lodge the visa application before the initial Subclass 457 visa ceased to be valid on 7 August 2015 (at [115]-[116]).
Further, the Tribunal found that the death of the godfather in Nepal had “little bearing on why the applicant did not hold a substantive visa in 2015”. Instead, the Tribunal found the first applicant’s immigration status at the date he applied for the visa was due to the assumption he had made in 2014 about the duration of the Subclass 457 visa granted on 18 July that year, principally “because he had not taken the time to read through the departmental notification letter he had received” (at [117]-[118]).
The Tribunal then considered the claims made by the applicants in relation to circumstances regarding the medical condition and care of their son who was born in 2010 (CB 102). The Tribunal noted:
120.In particular, the Tribunal notes that Dr [omitted]’s specialist paediatric ophthalmology report (dated 27 February 201750) confirms that the applicant’s son had bilateral cataract surgery in 2011 at the [omitted] Hospital in Melbourne. Given the applicant’s son was born in 2010 the Tribunal appreciates how distressing this would have been for the applicant and his spouse in 2011. It also understands their desire for the ongoing and required medical treatment to take place in Australia, given the superior medical services and facilities available here compared with those in Nepal. As such, the Tribunal feels a sense of compassion for the applicants in these circumstances.
121.Nevertheless, the Tribunal observes that, whilst Dr [omitted] stated in her report that the applicant’s son required follow up care, she also advised that she had not seen him as a patient since 2013. Therefore, it does not appear that there was an urgent need for the applicant’s son to have surgery in or about August 2015 that caused the applicant to become a person who was not the holder of a substantive visa in September 2015.
On balance, the Tribunal was not satisfied that the evidence before it indicated “any causal link” between the applicants’ son’s medical condition and care, and the first applicant’s status as a person who did not hold a substantive visa on 16 September 2015 (at [122]).
Similarly, the Tribunal found the claims around the applicants’ desire to have their son enrolled in an Australian primary school for the 2016 school year and the plans to travel to Nepal and collect him to be inadequate explanations for why the first applicant did not hold a substantive visa on 16 September 2015 (at [123]-[127]).
Summation
Having had “regard to the evidence as a whole” the Tribunal was not satisfied that the applicants’ claims about their surrounding circumstances at the time their Subclass 457 visa expired constituted factors that were beyond the first applicant’s control and caused him not to hold a substantive visa at time of the visa application (at [129]).
Request for Ministerial Intervention
The Tribunal also addressed a request made by the applicants that, in the event that the first applicant was found not to meet the criteria in Schedule 3 to the Regulations, the case be referred to the responsible Minister pursuant to s 351 of the Act (at [139]).
In considering this request, the Tribunal noted that it had had regard to the “Minter’s Guidelines on Ministerial Powers”, the fact that the applicants were represented in relation to the review by a migration agent and the fact that the applicants had been aware of the basis for refusal for approximately 25 months at the time of the Tribunal’s decision (at [143]-[144]).
Overall, while accepting that the first applicant was “hardworking” (at [149] and again noting the personal hardships faced by the applicants (at [152]), the Tribunal considered that there were other “facets to the evidence” that detracted from making the Ministerial referral sought (at [153]).
Firstly, the Tribunal emphasised that the Subclass 457 visa the first applicant applied for was a temporary visa which, in its conditions, did not guarantee permanent residency in Australia (at [154]).
Secondly, the Tribunal attached weight to the first applicant’s failure to properly read the letter granting his Subclass 457 visa in 2014, finding as follows:
155.However, the applicant’s failure to properly read through the departmental notice granting his Subclass 457 visa was the founding event that led to his current situation. Despite the cultural factors that have been raised to excuse this, the applicant’s failure to take this practical and prudent step in 2014 is one that is difficult to reconcile with the concept of taking personal responsibility for individual conduct.
The Tribunal continued:
157.In addition, whilst the Tribunal has had regard to current economic circumstances in Nepal and the potential hardship the applicants might face if they return to Nepal, it notes that the Ministerial guidelines generally lack focus on the economic or financial hardship non-citizens might face if they do not meet the criteria for the grant of a particular visa and are required to return to their country of origin. Rather, the emphasis in the Ministerial guidelines is on “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”.
158.The Tribunal accepts that the applicant’s son has a medical condition that requires treatment. It appreciates that the applicants miss their son who remains in Nepal, and as demonstrated by his handwritten letter and drawing, that their son also feels the ongoing separation from his parents acutely. Further, the Tribunal recognises the emotional and psychological pressures the applicants are under, and the potential depression they are experiencing, as outlined in the medical report (dated 4 April 2017) from their general practitioner.
159.On the other hand, the Tribunal notes that Dr [omitted] advised in February 2017 that she had not treated the applicant’s son since 2013. The applicant also advised in his statement (dated 7 February 2017) that he and his spouse had sent their son to Nepal when he was aged 3 years to be cared for by his grandparents, whilst they pursued their studies and work in Australia. They also took steps to enrol him in an Australian school in September 2015. These facets to the evidence do not suggest that the applicant’s son had a pressing need for immediate medical attention when the visa application was lodged in September 2015. Nor is there much in the evidence to suggest this is the case at the time of decision.
160.In addition, the Tribunal has had regard to the employees at the ‘Crackerjack Waterfront Cafe’ who might be affected if the applicant is not allowed to remain in Australia. However, there is insufficient evidence regarding how each of these individuals would be affected at a personal level, in terms of compelling or compassionate circumstances, that would warrant referral to the Minister under section 351 of the Act.
161.The Tribunal further notes that many of the skilled labour issues the applicant’s witnesses, Ms Strongman and Mr Taylor, described at the hearing are of a common and long-standing nature within the Australian hospitality industry. As such, there is little in the evidence presented to the Tribunal that suggests that the problems the ‘Crackerjack Waterfront Cafe’ has encountered in recruiting and retaining skilled hospitality staff point to unique or exceptional circumstances that warrant the referral of the present application to the Minister under section 351 of the Act.
On balance, the Tribunal was not satisfied that the evidence before it made the applicants’ case “particularly exceptional, unusual, compelling or compassionate” to warrant referral to the Minister (at [162]). The Tribunal stressed, however, that the applicants could still make a request to the Minister in their own right under the same provision of the Act (at [163]-[164]).
The Tribunal ultimately found that the first applicant did not meet cl 457.211 in Schedule 2 of the Regulations and therefore did not meet the criteria for the grant of the visa (at [165]).
The Tribunal also found that the second applicant did not meet cl 457.321 in Schedule 2 of the Regulations or the criteria for the grant of the visa (at [167]).
On the basis of those findings, the Tribunal affirmed the decision refusing to grant the applicants the visas (at [168]-[169]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 8 January 2018 contains two grounds of review, as follows:
1.Tribunal did not consider relevant facts. The culture factors was not given weights. The emotional factors was not given weights. We had mentioned about our stress level.
2.The tribunal considered irrelevant facts. The member emphasised on former agent mistake not mentioning to department.
The first applicant also filed an affidavit sworn by him on 8 January 2018. That affidavit duplicates the two grounds of review contained in the application for judicial review.
On 17 December 2022, the Court made orders giving the applicants an opportunity to file an amended application, any supporting affidavits and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review and accompanying affidavit filed by the applicants on 8 January 2018, a Court Book numbering 210 pages (marked as Exhibit 1) and written submissions filed by the Minister on 3 March 2022.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the second applicant and was assisted by an interpreter in the Nepalese language. The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on their grounds of review and to outline any other concerns they might have with the Tribunal’s decision. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 (“Bala”) at [7].
To assist the applicants, the Court explained 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. 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 materials: Craig at 198;
(c)where the decision-maker relies on irrelevant materials: 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 (“SZMDS”) 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 visas that 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 (“Wu Shan Liang”).
Unfortunately, the first applicant was unable to detail any specific “errors” made by the Tribunal or explain what concerns, specifically, he seeks to address in his grounds of review as articulated. In effect, the first applicant expressed no more than strong disagreement with the Tribunal’s ultimate conclusion and seeks an impermissible merits review.
CONSIDERATION
Grounds of review
The applicants’ grounds of review are not particularised and, as noted above, the first applicant was unable to “elaborate” when given an opportunity to do so in court.
While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court's preferred approach (noting the reasoning in Bala) is to note that the applicants are unrepresented, read the applicants’ grounds of review as broadly as possible and consider for itself whether any arguable case of jurisdictional error arises on the materials: MZAIB.
Ground 1
For ease of reference, ground 1 provides:
1.Tribunal did not consider relevant facts. The culture factors was not given weights. The emotional factors was not given weights. We had mentioned about our stress level.
To the extent that the applicants are concerned that the Tribunal failed to assess relevant factors – in this case, those that relate to cultural background (and the complex difficulties that arise from cultural differences) and the effect that the applicants’ personal difficulties (in this case, stress resulting from the death of the second applicant’s godfather and the applicants’ son’s poor health), the Court disagrees.
As succinctly (and accurately) explained by the Minister in written submissions filed on 3 March 2022 (at [23]):
(a)the Tribunal considered the first applicant’s cultural predispositions and ability to control his emotions but found that these factors did not explain the applicant’s failure to properly read the notification letter and determine the duration of the last visa (at [88]-[89] and [109]-[110]); and,
(b)the Tribunal considered the stress caused by the second applicant’s godfather’s illness and death but found that his stress did not have a causal effect on the applicant’s visa status (at [111]-[116]).
The Court also notes that the Tribunal specifically (and in detail) addressed (and acknowledged) the stress experienced by the applicants as a result of their son’s poor health but, again, determined that this situation unfortunately did not extend to being a “factor that caused the [first] applicant to be a person who did not hold a substantive visa on 16 September 2015”.
To the extent that the applicants in ground 1 are alleging that the Tribunal’s conclusions in this regard are illogical, the Court again disagrees.
As articulated by the High Court in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Here, it cannot be said that the Tribunal’s findings in relation to the applicants’ social and cultural background were findings that were not open to it. While this Court might have assessed the evidence before it differently, that is not the test on review. The question that the Court must answer is whether on the evidence, the Tribunal’s conclusions are “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
As detailed above, in this matter, in relation to the applicants’ cultural background and language difficulties:
(a)while the Tribunal accepted that the first applicant “acted quickly” to lodge the visa application in September 2015 (after the expiry of the initial Subclass 457 visa (at [92])), on the “whole of the evidence before it”, the Tribunal did not accept that social circumstances “either on an individual or cumulative basis, constitute factors that were beyond [the first applicant’s] control that led him not to have a substantive visa in September 2015” (at [94]). In coming to that conclusion, the Tribunal placed weight on the fact that the first applicant had engaged in post-secondary education courses exclusively instructed in the English language in both Nepal and Australia and had been working in Australia since he had arrived (at [97]-[100]). Overall, the Tribunal concluded that the failure to properly read and understand the Departmental letter relating to the grant of the initial Subclass 457 visa was “a circumstance within the [first] applicant’s control”. Relevantly, the applicant’s apparent ability to read and comprehend the detail of that letter would have “allowed him to have lodged his new Subclass 457 visa at a time when he was the holder of substantive visa” (at [103]); and
(b)in relation to a further aspect of the first applicant’s “cultural background and status” – namely, the first “applicant’s cultural mindset” which, the first applicant and his representative contended, “predisposed him” to defer “without question” to his former migration agent’s advice, the Tribunal noted that the applicants’ representative had provided scant evidence “to confirm that a person from Nepal is culturally inclined to unquestioningly accept what they are told by those in positions of authority” (at [104]). In this regard, the Tribunal attached greater weight to the alternative evidence provided in the applicant’s statement dated 7 February 2017 (in which he accepted that he had failed to check the expiry date of his visa) and the oral evidence given on 22 March 2017 (in which the first applicant acknowledged that “he had not properly read the departmental visa grant notification”) (at [107]). The Tribunal also noted the letter of support sent to it by the first applicant’s general practitioner dated 4 April 2017 which characterised the applicant’s lack of substantive visa as “a genuine mistake” and “an oversight” (at [108]).
On the basis of the above, the Tribunal concluded:
109.As a result, the Tribunal is not satisfied that the subjective factors the applicant and his representative have put forward such as his English language skills, status as a tradesperson who is not a proficient reader, ability to control his emotions and cultural factors adequately explain the applicant’s acknowledged failure to take the practical and realistic step of properly reading the departmental documentation relating to the grant of his visa in 2014 and its actual duration.
The Tribunal’s approach in this regard is sound. The conclusions reached, while arguably conclusions about which “reasonable minds might differ”, are not unreasonable.
Further, in relation to the personal difficulties faced by the applicants, as also detailed above:
(a)the Tribunal noted that it had given weight to evidence of the first applicant explaining that the second applicant did not travel to Nepal to attend her godfather’s funeral as she could not secure leave from her employer. Overall, the Tribunal found that there was “little in the evidence” demonstrating that the second applicant’s loss “made it impractical or unrealistic” for the first applicant to lodge the visa application before the initial Subclass 457 visa ceased to be valid on 7 August 2015 (at [115]-[116]);
(b)the Tribunal found that the death of the second applicant’s godfather in Nepal had “little bearing on why the [first] applicant did not hold a substantive visa in 2015”. Instead, the Tribunal found the first applicant’s immigration status at the date he applied for the visa was due to the assumption he had made in 2014 about the duration of the Subclass 457 visa granted in July that year, principally “because he had not taken the time to read through the Departmental notification letter he had received” (at [118]);
(c)in relation to the claims made by the applicants in relation to circumstances relating to the medical condition and care of their son, noting the evidenced before it (relevantly at [120]-[121]), the Tribunal did not accept that “there was an urgent need for the applicant’s son to have surgery in or about August 2015” with the consequence of the first applicant becoming a person who did not hold a substantive visa on 16 September 2015. On balance, the Tribunal was not satisfied that the evidence before it indicated “any causal link” between the applicants’ son’s medical condition and care, and the first applicant’s status as a person who did not hold a substantive visa on 16 September 2015 (at [122]); and
(d)similarly, the Tribunal found that the claims around the applicants’ desire to have enrolled their son in an Australian primary school for the 2016 school year and the associated plans to travel to Nepal and collect him were inadequate explanations as to why the first applicant did not hold a substantive visa on 16 September 2015 (at [123]-[127]).
Overall, as stressed by the Minister, the Tribunal did indeed consider the first applicant’s “cultural predispositions and ability to control his emotions” but found that those factors were inadequate explanations for the first applicant’s failure to properly read the letter notifying the grant of the Subclass 457 visa on 18 July 2014. Furthermore, the Tribunal considered the applicants’ alleged stress which emanated from the illness and death of the second applicant’s godfather but found that this did not have a causal effect on the first applicant’s immigration status on 16 September 2015. Those findings were based on the evidence before the Tribunal – evidence that was forensically assessed and weighed within the relevant statutory context. Again, while the applicants might disagree with the Tribunal’s conclusions and, indeed, while this Court might have assessed that evidence differently, it cannot be said, when read as whole, that the Tribunal’s findings in this regard were not open to it.
Regrettably, as contended by the Minister, ground 1 “rises no higher than an emphatic disagreement with the Tribunal’s decision and invites the Court to engage in impermissible merits review”: Wu Shan Liang at 272.
No error arises in this regard.
Ground 2
For ease of reference, ground 2 provides:
2.The tribunal considered irrelevant facts. The member emphasised on former agent mistake not mentioning to department.
It is not entirely clear what “irrelevant” facts the applicants are referring to in ground 2. Nor did the first applicant clarify his position in oral submissions at the hearing of this matter. However, like the Minister, the Court assumes that the applicants’ reference to “member emphasised on former agent mistake not mentioning to department” relates to a concern that the Tribunal impermissibly took into account the conduct of the applicants’ former migration agent when reaching its ultimate decision.
To the extent that this is the applicants’ primary concern in this regard, for the reasons that follow, the Court disagrees.
As framed by the Tribunal, the “central issue” before it was whether the first applicant satisfied criterion 3004(c) in Schedule 3 of the Regulations.
Paragraph (c) of criterion 3004 provides: (emphasis added):
Schedule 3—Additional criteria applicable to unlawful non‑citizens and certain bridging visa holders
3004 If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control
…
Paragraph (c) of criterion 3004 in Schedule 3 of the Regulations is part of a set of six requirements in criterion 3004 which must be satisfied if the criterion as a whole is to be met for the purposes of cl 457.211(b)(ii) in Schedule 2 of the Regulations. However, because the Tribunal was not satisfied the first applicant was not the holder of a substantive visa “because of factors beyond his control”, it found it did not need to address the requirements in paragraphs (d)-(h) of criterion 3004 in Scheduled 3 of the Regulations. This approach is undoubtedly correct.
The Tribunal relied on the explanation given by Smith FM in Su v Minister for Immigration and Citizenship [2007] FMCA 318 (“Su”) in coming to an understanding about the various factors which may be considered to be “beyond an applicant’s control” for the purposes paragraph (c) of criterion 3004 in Schedule 3 of the Regulations. In Su Smith FM explained at [17]:
The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.
The test set out in Su, which has was recently affirmed in this Court in Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 110 at [22], required the Tribunal to conduct a holistic and subjective appraisal of the first applicant’s circumstances as to why he did not hold a substantive visa on 16 September 2015.
The Tribunal had regard to all manner of considerations in making findings as to whether the first applicant did not hold a substantive visa because of factors beyond his control. This included consideration of the cultural and emotional factors the applicants refer to in ground 1. The Tribunal undertook that consideration in the context of examining whether the first applicant’s linguistic, educational and vocational background indicated any factors that led him not to hold a substantive visa at the date of the visa application. The Tribunal also had regard to the extent to which “emotional factors” may have led the first applicant not to be a holder of a substantive visa.
The Tribunal’s consideration in this regard met the standard of being “proper, genuine and realistic” as required by the relevant authorities: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23]; CNS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 921 at [32].
The Tribunal assessed the evidence before in relation to the applicants’ migration agent. Again, no error of the sort alleged in ground 2 arises in this regard. As contended by the Minister (an argument with which this Court agrees), there is nothing in the relevant statutory scheme which proscribed that category of information from being taken into account by the Tribunal: SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [114]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27]. The circumstances surrounding the conduct of the applicants’ former migration agent were the subject of submissions made to the Tribunal by the applicants’ representative in an email dated 8 February 2017 (CB 83) and the applicant is said to have confirmed these claims during his oral evidence before the Tribunal on 22 March 2017 (CB 184).
The Tribunal’s findings in relation to the applicants’ former migration agent cannot be impugned for being based on irrelevant considerations. Nothing in cl 457.211 in Schedule 2 of the Regulations or criteria 3004 in Schedule 3 of the Regulations or the Act prohibited the Tribunal from taking that specific category of information into account. Furthermore, given that the claims around the conduct of the former migration agent were made by the applicants after the Tribunal sought comments and information from them, arguably, by force of s 359(1) of the Act, there was an obligation on the Tribunal to have regard to that information once it was before it.
To the extent that ground 2 asserts that the Tribunal took into account “irrelevant facts” in relation to the conduct of the applicants’ former migration agent, no jurisdictional error has been established.
Other – “Futility”
The Court notes, and accepts, the Minister’s submission (at [29]) in written submissions filed on 3 March 2022) that, even if an error does arise in the Tribunal’s approach and decision, any remittal to the Tribunal would be futile as the applicants cannot be granted the visa.
On 18 March 2018, the Regulations were amended by Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). Unfortunately, for the applicants, that amending legislation removed subclass 457 from the list of skilled visas. That is, even if the Court were to remit this matter to the Tribunal, there is nothing that the Tribunal could do to assist the applicants as the visas that they seek are no longer available to them.
Any remittal would thus be futile.
CONCLUSION
The application for judicial review filed by the applicants on 8 January 2018 has failed to identify any jurisdictional error in the Tribunal’s decision dated 15 December 2017. The Court has also been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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