Assad v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 329
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Assad v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 329
File number: MLG 1154 of 2020 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 3 May 2023 Catchwords: MIGRATION – Application for judicial review – refusal of Employer Nomination (Permanent) (Class EN) (Subclass 186) visa – application in a case for summary dismissal – whether the applicants’ have a reasonable prospect of success – application summarily dismissed – costs ordered Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Migration Act 1958 (Cth) ss 65, 360, 362A, 376 and 477(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.10, 11.12, 13.13(a), sch 1, pt 3, div 1, item 3
Federal Circuit Court Rules 2001 (Cth) r 13.10(a)
Migration Regulations 1994 (Cth) reg 5.19, cl 186.223, 186.311 and 187.223
Cases cited: Akula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2661
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Spencer v Commonwealth (2010) 241 CLR 118
SZUIJ v Minister for Home Affairs [2019] FCCA 1910
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submissions: 27 January 2021 Date of hearing: 27 January 2021 Place: Melbourne (by videoconference) The First Applicant: Appeared in person The Second Applicant: Appeared in person The First Applicant appearing on behalf of the Third Applicant Solicitor for the First Respondent: HWL Ebsworth The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 1154 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FARAH ASSAD
First Applicant
RANA ADEEL JAMAL
Second Applicant
RAYYAN RAHEEL
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
3 may 2023
THE COURT ORDERS THAT:
1.The First Applicant be appointed as litigation guardian of the Third Applicant pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (2021 Rules).
2.The requirement in r 11.10(2) of the 2021 Rules which provides for the filing of an affidavit of consent is dispensed with.
3.The requirement in r 11.12 of the 2021 Rules which provides for notice of the appointment of the First Applicant as litigation guardian of the Third Applicant to be given to each other party in this proceeding is dispensed with.
4.Pursuant to r 13.13(a) of the 2021 Rules the Applicants’ Application filed 8 April 2020 is dismissed.
5.The First Applicant and Second Applicant pay the First Respondent’s costs fixed in the sum of $3,737.
6.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application dated 26 March 2020 and filed on 8 April 2020 (Application), the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 10 March 2020 (Tribunal’s Decision).[1]
[1] Court Book (CB) 191–194.
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicants Employer Nomination (Permanent) (Class EN) (Subclass 186) visas (Visa).
This judgment however, relates to the Application in a Case filed by the Minister on 18 November 2020 (Application in a Case), which seeks to have the Application summarily dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (2001 Rules), in force at the time the Application in a Case was filed.
Pursuant to the reasoning in Spencer v Commonwealth (2010) 241 CLR 118 (Spencer), at [58] to [60], the Minister has the onus of proving that the Application has no reasonable prospect of success. The Minister is required to satisfy the Court that there is no real question of law or fact to be decided at trial: SZUIJ v Minister for Home Affairs [2019] FCCA 1910 at [2]; Spencer at [58]–[60]. The Applicants have 24 grounds of review in the Application, which the Court will consider below.
This matter was heard on 27 January 2021 and proceeded by way of videoconference on Microsoft Teams as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) at the time due to the ongoing COVID-19 pandemic (Hearing). The Applicants did not request an interpreter. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
BACKGROUND
The Court has before it a Court Book numbering 197 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, filed on 20 January 2021 (Minister’s Submissions), at [4] to [10], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
On 7 March 2017, the First Applicant (Applicant), a citizen of Pakistan, lodged an application through her representative for the Visa in the Temporary Residence Transition stream (Visa Application).[2] The Visa Application was for the nominated occupation of ‘Hairdresser’ and provided details of the related nomination. The Second Applicant and Third Applicant are respectively the Applicant's husband and child and are secondary applicants to the Visa Application (Secondary Applicants). The Applicant and the Secondary Applicants will hereafter collectively be referred to as the Applicants.
[2] CB 1–14.
On 10 October 2018, an officer of the Department of Home Affairs (Department) emailed the Applicant's representative and attached a letter which invited the Applicant to comment on information.[3] The letter stated that ‘[t]he nomination submitted to the department by Mandip & Sons Pty Ltd listing you as their Nominee has been withdrawn. This means that your visa application cannot be approved’.[4] The letter further stated that the Applicant could withdraw her application within 28 days, or the application would subsequently be refused.[5]
[3] CB 122–126.
[4] CB 123.
[5] CB 123.
On 8 November 2018, the Delegate refused to grant the Applicant the Visa pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act) (Delegate’s Decision).[6] The Delegate noted that the nominating employer notified the Department in writing on 10 October 2018 of the withdrawal of the nomination and that the nomination had not been approved prior to being withdrawn.[7] The Delegate therefore found that as the position was no longer available to the Applicant, cl 186.223(4) of the Migration Regulations 1994 (Cth) (Regulations) was not met, and consequently the Applicant did not satisfy the criteria for the grant of the Visa.
[6] CB 128–138.
[7] CB 135.
On 26 November 2018, the Applicants, through a new representative (First Representative), applied to the Tribunal for review of the Delegate’s Decision.[8]
[8] CB 142–147.
On 6 December 2018, a delegate of the Minister issued a non-disclosure certificate pursuant to s 376 of the Migration Act (Certificate), which notified the Tribunal that s 376 applied in relation to three (3) identified documents and certified that disclosure of that material would be contrary to the public interest.[9] The documents were described as emails containing allegations made by a third party, and a case note stating the substance of those emails.[10]
[9] CB 140.
[10] CB 140.
On 7 February 2020, an officer of the Tribunal emailed the First Representative attaching a letter which invited the Applicants to attend a hearing to give evidence and present arguments pursuant to s 360 of the Migration Act.[11] On 13 February 2020, a new representative (Second Representative) emailed the Tribunal attaching an ‘Appointment of Representative’ form and a ‘Request for access to written material under Section 362A of the Migration Act’ form.[12] Later on the same day, the Second Representative emailed the Tribunal attaching a ‘Consent to release personal information’ form signed by the Second Applicant.[13]
[11] CB 160–163.
[12] CB 164–170.
[13] CB 171–173.
On 6 March 2020, an officer of the Tribunal emailed the Second Representative attaching a letter which enclosed written materials relating to the Applicants’ application for review by the Tribunal.[14]
[14] CB 174–177.
On 10 March 2020, the Applicant emailed the Tribunal attaching a ‘Response to hearing invitation’ form.[15] On this day, the Applicant and the Second Applicant appeared at a hearing before the Tribunal, there being no appearance by the Second Representative.[16] The Applicant subsequently provided a ‘Change of Contact Details’ form which stated that the Applicant had withdrawn her authorisation of a person to act as her representative and receive correspondence on her behalf.[17]
[15] CB 178–181.
[16] CB 182–185.
[17] CB186–188.
On 10 March 2020, the Tribunal affirmed the Delegate's Decision to refuse to grant the Applicants’ Visas.[18]
[18] CB 190.
On 13 March 2020, the Tribunal published a written record of its decision and reasons.[19]
[19] CB 190–195.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 191 to 195 of the Court Book. The Minister’s Submissions, at [11] to [13], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided as its own, with some amendments, as follows.
The Tribunal stated that the issue in the case was whether the position to which the Visa Application relates was the subject of an approved nomination that identifies the Applicant.[20]
[20] CB 192, [8].
The Tribunal put to the Applicant that the nominating employer had withdrawn the nomination on 10 October 2018 and the Applicant agreed with that statement.[21] The Tribunal explained that in the absence of any evidence that the position to which the Visa Application related was the subject of an approved nomination, it was inclined to affirm the decision of the Delegate, and invited the Applicant to respond.[22] The Applicant made submissions regarding the circumstances of the withdrawal and stated that the circumstances were out of her control.[23]
[21] CB 193, [14]–[15].
[22] CB 193, [16].
[23] CB 193, [17]
The Tribunal found that as the relevant nomination had been withdrawn, the position to which the Visa Application related was not the subject of an approved nomination.[24] Therefore, the Applicant did not meet the requirements of cl 186.223 of the Regulations.[25]
[24] CB 193, [18].
[25] CB 194, [19].
The Applicant had not sought to satisfy the criteria for other visa streams and therefore the decision under review had to be affirmed.[26] The Secondary Applicants consequently did not satisfy the requirements of cl 186.311 of the Regulations.[27]
[26] CB 194, [20].
[27] CB 194, [21].
PROCEEDINGS BEFORE THE COURT
On 8 April 2020, the Applicants filed the Application seeking judicial review. This was within 35 days of the date of the Tribunal’s Decision, as required by s 477(1) of the Migration Act.
The Application contained the following grounds of review:
1. The decision maker failed to apply the rules of procedural fairness.
2.There was unfairness and failure to take into consideration that the Applicant satisfied the 457 criteria and completed more than 2 years employment, prior to applying for the 186 application.
3.That at the time of application for the 186 application, the applicant had complied with all requirements.
4.The department refused the applicant visa because the Department claimed that the applicant did not meet cl 186.223. The department has made an error as at the time the applicant satisfied all her 457 requirements prior to the nomination being cancelled.
5.That by the time the nomination was refused the applicant had satisfied all the requirements for the 457 and 186 application and therefore should not have be disadvantage because of the nomination being refused. The applicant had satisfied the work requirements and provided all documents in support.
6.Further, the nomination being refused was a direct consequence of the conduct of the nominator, which conduct is outside the control of the applicant.
7.It can not be the intend of the regulations to deprive the applicant his rights where he has satisfied all conditions save for the conduct of the nominator which he has no control over.
8.There was a failure to consider errors and correctness in the interpretation and construction of the facts.
9.There was an error in law in that all relevant considerations were not taken into account.
10.The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.
11.Tribunal did not give consideration to the evidence provided so it has fall into "jurisdiction error”.
12.The Tribunal exercised its decision-making power unreasonably and unconscionably;
13.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my nominated position;
14.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving any weight on my oral explanations and the documents provided for consideration in this regard. If the Tribunal has verified the matter individually and given me further opportunities to explain that could have led to a different decision by the Tribunal.
15.The Delegate and the AAT erred in its application of clause 186.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
16.The Tribunal relied on its findings in the nomination application to find the person who will employ the applicant is the person who was the nominator in the application for approval. Therefore cl. 186.233(2) is met. In light of the Tribunal's approval of the appointment under r.5.19(4), the Tribunal finds that the visa applicant now meets the requirements of cl.186.233(3),
17.The Tribunal should also be satisfied on all the evidence before it that the relevant appointment, AND NOT THE NOMINATION, has not been withdrawn and is still available to the visa applicant. Therefore cl.186.233(4) and (5) are met.
18.In finding that the primary visa applicant satisfied clause 186.223 of Schedule 2 of the Migration Regulations 1994 (Cth) the AAT failed to consider whether she satisfied all requirements of that sub-clause.
19.The AAT was satisfied that the primary visa applicant satisfied clause 186.223 because she was named in a nomination application made by an approved business sponsor.
20.The person who will employ the applicant is the person who made nomination. The position to which the application relates is the position nominated in an application for approval that sought to meet the requirements of r.5.19(4)(h)(ii) and in relation to which relevant declarations were made in the application for the visa;
21.there is no 'adverse information' known to immigration about the person who made the nomination or a person 'associated with· that person (within the meaning of r.l.13A and r.1.13B); or it is reasonable to disregard any such information
22.The answer, as given by the Tribunal and as affirmed by the Federal Circuit Court (see Deepti & Ors v Minister for Immigration & Anor (2017) FCCA 449 (10 March 2017) is that a visa application cannot be granted on the basis of a new nomination lodged by a different employer.
23.In other words, the employer nomination and the visa application must "match up". If a visa applicant wants to rely on a nomination from a new employer, the applicant must make a fresh visa application based on that nomination (which of course must be approved).
24.A second decision from the Federal Circuit Court to the same effect of Deepti was Hasan & Ors v Minister for Immigration & Anor (2016) FCCA 1049 (13 May 2016).
(Without alteration)
On 18 November 2020, the Minister filed the Application in a Case which sought to dismiss the Application pursuant to r 13.10(a) of the 2001 Rules on the basis that the Applicants have no reasonable prospects of successfully defending the proceeding. The Minister’s Submissions also made note of s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), in force at the time, which sets out the powers of the Court (as it then was) in relation to summary judgment.[28]
[28] Minister’s Submissions, [15].
The matter came before me for the Hearing on 27 January 2021, being the return date of the Application in a Case.
The materials before the Court include the Court Book (marked as Exhibit 1), the Application, the Affidavit of the Applicant, sworn 26 March 2020 and filed 8 April 2020, the Affidavit of Giovanni Thomas Frischman, sworn 27 July 2020 and filed 29 July 2020, and the Minister’s Submissions. The Court has also considered the transcript of the Hearing where the Applicant and the Minister’s solicitor made oral submissions.
The Applicant and Second Applicant appeared before the Court without legal representation. The Court confirmed with the Applicant that she had read and received a copy of the Minister’s Submissions.[29]
[29] Transcript P8:L34–43.
RELEVANT LEGISLATION
The Minister relied upon r 13.10(a) of the 2001 Rules and s 17A of the FCCA Act. Section 17A of the FCCA Act is supported by r 13.10 of the 2001 Rules. These are outlined below.
Rule 13.10(a) of the 2001 Rules provided as follows:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
[…]
The above provision is no longer in force, however is replicated exactly in r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth), which are currently in force.
Section 17A of the FCCA Act provided as follows:
17A Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
[…]
The above provision is no longer in force, however is replicated in s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act), currently in force.
Of particular relevance in this proceeding is subsection 17A(2) of the FCCA Act (and subsection 143(2) of the FCFCA Act) as it is to be determined whether the Applicants have a reasonable prospect of success prosecuting their proceeding, or part thereof. Further, subsection 17A(3) of the FCCA Act (and subsection 143(3) of the FCFCA Act) provides that the proceeding need not be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success.
SUBMISSIONS OF THE PARTIES
First Respondent’s submissions
In the Minister’s Submissions, the Minister submitted that all 24 grounds contained in the Application have no reasonable prospect of success. The Minister identified that these grounds, read at their highest, contained four (4) broad issues with the Tribunal’s decision, being:
(a)Denial of procedural fairness (Grounds 1 and 14);
(b)Misinterpreted or misapplied the relevant Regulations (Grounds 7 and 15 to 21);
(c)Failure to take account of relevant considerations, or have regard to relevant material (Grounds 2, 8 to 11 and 13); and
(d)Unreasonable exercise of power (Ground 12).[30]
[30] Minister’s Submissions, [16].
The Minister noted that the remaining grounds made reference to the Delegate’s Decision, factual matters or case law, and as such were not relevant to the proceedings before this Court.[31]
[31] Minister’s Submissions, [17].
Futile or Immaterial
As discussed above, the issue before the Delegate and the Tribunal was whether the position to which the Visa Application relates was the subject of an approved employer nomination that identifies the Applicant.[32] The Minister submitted that the Applicants’ grounds fail to identify any jurisdictional error by the Tribunal. Further, the Minister submitted that even if there had been an identifiable error, it would be immaterial and/or any relief would be futile as the Applicant could not meet the requirements of cl 186.223 of the Regulations.[33]
[32] CB 192, [8].
[33] Minister’s Submissions, [18].
Clause 186.223 of the Regulations does not permit the Applicant to submit a new nomination for any other position than that position noted in the Visa Application. This clause requires that the nomination refer to a specific position and coincide with the employer nomination (pursuant to reg 5.19 of the Regulations) that is subject to the declarations set out in the Visa Application.[34] This requirement is clearly explained in relation to cl 187.223 of the Regulations in the matter of Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (Singh), at [39] and [88] to [90]:
39. […] it would be futile to remit the matter to the Tribunal because any nomination for a position that the applicant could obtain was incapable of satisfying the requirements in cl 187.233 of Sch 2 to the Regulations, because there had to be a nomination approved by the Minister under reg 5.19 for the position set out in the visa application. There also had to be identity between the position specified in the visa application and the declaration made by the applicant that the position to which the visa application related was a position nominated under reg 5.19. None of those matters […] could be satisfied by the appellant in his visa application because the Minister’s delegate had refused to approve the nominated position and any subsequent approval of a new nominated position would result in some disconformity between the position in the visa application and the nomination, a disconformity that cl 187.233 did not permit.
[…]
88. […] the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. […] The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89. The structure of reg 5.19 contemplates (whether for subreg (3) or subreg (4), although (4) is the relevant subregulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the subregulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
(Emphasis added)
[34] Minister’s Submissions, [19].
In line with the above reasoning in Singh, the Minister submitted that the Tribunal was bound to affirm the Delegate’s Decision as the relevant employer nomination had been withdrawn, leaving no alternative available outcome.[35] As there was no alternative outcome available, any error made by the Tribunal could not give rise to jurisdictional error. This was made clear in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, at [2]:
2. The Federal Circuit Court was correct to find an error of law in the reasoning of the Tribunal which led to the decision; indeed, the error of law was conceded. The Federal Circuit Court was incorrect to characterise that error as a jurisdictional error. That is because, on the facts found by the Tribunal, the Tribunal had a duty to affirm the decision of the delegate in any event. The Tribunal had not exceeded its jurisdiction by making the decision which it made.
(Emphasis added)
[35] Minister’s Submissions, [20].
Finally, the Minister submitted that even if relief were granted, it would be futile as the Applicants would be unable to meet cl 186.223 of the Regulations if the matter were remitted to the Tribunal.[36] This point was emphasised in Akula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2661, at [42]:
42.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. 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.
(Emphasis added)
[36] Minister’s Submissions, [21].
No Reasonable Prospects of Success
Due to the ultimate futility and immateriality of the Application, the Minister submitted that the Application has no reasonable prospect of success. As briefly mentioned at [4] above, the High Court case of Spencer sets out the relevant principles in relation to summary judgment. The Minister summarised these principles as being:
(a)The power to summarily dismiss an application should not be exercised lightly;
(b)A proceeding need not be hopeless, or bound to fail for it to have no reasonable prospect of success;
(c)A “reasonable prospect” of success means a “real” rather than a “fanciful” prospect; and
(d)The test is intended to describe a high degree of certainty regarding the outcome of the proceedings, if the matter was to go to hearing.[37]
[37] Minister’s Submissions, [22].
In response and reiterating the above, the Minister submitted that the Application fails to disclose any error; however, even if it had, it would be immaterial due to the Tribunal’s obligation to affirm the Delegate’s Decision. Consequently, as a result of the operation of cl 186.223 of the Regulations, the Minister submitted that the matter was hopeless and bound to fail. Further, with no approved nomination or pending application for review in relation to the nomination, the Applicants have no reasonable prospect of success as there is a clear requisite outcome.[38]
[38] Minister’s Submissions, [23]–[24].
Applicants’ submissions
The Applicants did not file any written submissions with the Court and as such the oral submissions made by the Applicants during the Hearing will be referred to.
At the Hearing, the Applicants were asked if they had any submissions they would like to make in response to the Minister’s Submissions regarding summary dismissal. In response, the Applicant noted that her lawyer had disappeared and as such she had nothing on her and would like more time.[39] The Court noted that the Applicants had had plenty of time to prepare for this matter and consequently would not be receiving any more time.[40]
[39] Transcript P9:L35-37.
[40] Transcript P9:L39-44.
Following this, the Applicant noted that she had appealed the matter to this Court to ‘get justice’ and went on to detail that she was unaware of why the employer withdrew the nomination. She noted that she had worked for the employer for free for a number of months to ensure that she and her family would receive the Visa. The Applicant commented that this matter had been taken to Fair Work.[41] Whilst the Court expresses concern about the circumstances that the Applicant found herself in, these are not matters relevant to the Court’s task of judicial review. This was explained to the Applicant, however, the Applicant had no further submissions.[42]
[41] Transcript P10:L9.
[42] Transcript P10:L17, 24.
CONSIDERATION
In determining whether to grant the Minister’s Application in a Case for summary dismissal, it must be established whether the Application has any reasonable prospects of success.
The Applicants identified 24 grounds of review in their Application (set out in full at [23] above). In short, the Minister submitted that none of these grounds identify jurisdictional error, and even if an error was identified, it could not amount to jurisdictional error. It would be immaterial to the Tribunal’s decision and/or any relief would be futile as the Applicant would still be unable to meet the requirements of cl 186.223 of the Regulations. The case law and legislation set out above make it clear that due to the requirements of cl 186.223 of the Regulations, there was only one decision available to the Tribunal. The Tribunal was bound to affirm the Delegate’s Decision.
This Court is required to exercise the process of judicial review. This means that I must establish whether the Tribunal made some sort of legal error which caused the Tribunal to improperly exercise the jurisdiction conferred upon it. As it has been established that there was no alternative decision available to the Tribunal, and therefore no room to make a jurisdictional error, I cannot find, even if there has been some sort of error made by the Tribunal, that there has been a jurisdictional error.
For these reasons, it would be irrelevant for me to address each of the individual grounds of review identified by the Applicants.
CONCLUSION
In accordance with the reasons discussed above, I am satisfied that the Minister has established that the Application has no reasonable prospect of success and must be dismissed.
At the Hearing, the Minister sought costs in the sum of $3,737.[43] This amount is pursuant to pt 3 div 1 item 2 of sch 1 to the 2001 Rules, applicable at the time of the Hearing. Accordingly, an Order will be made that the First Applicant and Second Applicant pay the Minister’s costs fixed in the sum of $3,737.
[43] Transcript P11:L9-19.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 3 May 2023
0
6
0