Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1785
•4 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1785
File number(s): MLG 1305 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 4 August 2021 Catchwords: MIGRATION – Temporary Work (Skilled) visa (subclass 457) – judicial review of decision of Administrative Appeals Tribunal – where the applicant company sought approval as sponsor for occupation of bricklayer – where sole director is husband of nominee – where Tribunal was not satisfied the nominated occupation of bricklayer for the nominee was genuine – certain requirements of Migration Regulations 1994 not met – where Tribunal raised departmental policy set out in PAM3 – whether PAM3 constitutes ‘information’ for purposes of s 359AA of the Migration Act 1958 – applicable principles – application refused. Legislation: Migration Act 1958 (Cth) ss 140GB, 357A, 359AA, 359A, 424A, 474, 476
Migration Regulations 1994 (Cth) regs 2.72, 2.73
Federal Circuit Court Rules 2001 (Cth) rr 44.12 44.13Cases cited: Craig v South Australia (1995) 184 CLR 163
Jackamarra v Krakouer (1998) 195 CLR 516
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1784
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
MZAJQ v Minister for Immigration [2015] FCCA 593
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
QAAC of 2004 v RRT [2005] FCAFC 92
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498
SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
SZNOA v Minister for Immigration and Citizenship [2010] FCA 60
SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6
Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330Number of paragraphs: 55 Date of hearing: 29 July 2021 Place: Melbourne Counsel for the Applicant: Mr C. Oldham Solicitor for the Respondent: Sparke Helmore Solicitor-advocate for the Respondent: Mr A. Cunynghame ORDERS
MLG 1305 of 2017 BETWEEN: ATTRACTIVE CLEANING (AUS) PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the amended application dated 5 July 2021 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $5,000.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By amended application dated 5 July 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 May 2017 affirming decisions made by delegates of the first respondent (Minister) refusing to grant a nomination of an occupation for a Temporary Work (Skilled) visa (subclass 457) (visa) pursuant to s 140GB of
the Migration Act 1958 (Cth) (Act) and reg 2.73 the Migration Regulations 1994 (Cth).
These reasons for judgment should be read together with the reasons in MLG 1305/2017 in which judicial review is sought by Ms Kaur who was sponsored by the applicant (Attractive Cleaning) for the nominated occupation of bricklayer: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1784. As appears from those reasons, Ms Kaur is the wife of the secondary applicant in that proceeding, Mr Singh, who is the sole director of Attractive Cleaning.
The application must be refused. In summary, it was open to the Tribunal to conclude that the nomination was no genuine. As concerned the sole ground of review, there was no failure by the Tribunal to discharge functions in s 359AA. I am not satisfied the provision was engaged.
Background
Attractive Cleaning is a building company trading in Victoria as JS Homes. The sole director of the company is Mr J Singh, who is the husband of Ms Kaur, and is an Indian citizen who has been ordinarily resident in Australia for more than a decade.
On 20 June 2015 and again on 13 September 2015, Attractive Cleaning applied for approval as the nominated sponsor for the occupation of bricklayer for a nominee and listed Ms Kaur as nominee. Ms Kaur nominated her husband and child as secondary applicants to her visa application.
On 23 June 2015, the then Department of Immigration and Border Protection (Department) transmitted a request to Attractive Cleaning for additional information relating to the nomination application for Ms Kaur.
On 28 August 2015 and again on 28 October 2015, the delegate refused to approve the nomination applications, doing so in each case on the basis that Attractive Cleaning had not satisfied the requirements of reg 2.72(10)(f) the Migration Regulations 1994 (Regulations). This clause of the Regulations imposes a criterion that the Minister be satisfied that the position associated with the occupation for which the nomination approval is sought was genuine and a full-time position. In each case the delegate was not satisfied that the position associated with the nominated occupation was genuine.
On 17 November 2015, Attractive Cleaning applied to the Tribunal for review of the delegate’s nomination decision made on 28 October 2015, attaching a copy of the decision.
On 2 March 2017, the Tribunal invited the applicant to attend a hearing.
On 20 April 2017, Attractive Cleaning was notified of the approval as a Temporary Business Entry Standard Business Sponsorship – Aus Business which was approved on the same day. The applicant was informed of its ability to make an application for approval of a nomination, advising that the proposed primary sponsored person, Ms Kaur, should proceed with lodging an application for the visa.
On 11 May 2017, Mr Singh attended the combined hearing in relation to the delegate’s first and second nomination decisions and was assisted by a representative and an interpreter in the Hindi language. Ms Kaur did not attend that hearing. The Tribunal’s decision record at [53] indicates that the Tribunal did not speak with her as no request to give evidence was made. Further, at the end of the hearing in relation to the delegate’s nomination decisions, the representative indicated that Ms Kaur did not wish to participate in the hearing.
Tribunal’s decision
On 18 May 2017, the Tribunal made a decision affirming the delegate’s decisions not to approve the nomination applications made by Attractive Cleaning. In affirming the decision not to approve the nominations, the Tribunal provided a statement of reasons for doing so (Reasons) and notified the applicant of the Tribunal’s decision.
The Tribunal accepted the sponsor was an approved standard business sponsor and the requirements of reg 2.72(4) were met (no adverse information). The Tribunal identified that the issue on review was whether the sponsor met the requirements in s 140GBA of the Act and
reg 2.72(10)(f) of the Regulations.
The Tribunal accepted that Mr Singh, as owner and manager, had been operating a bricklaying business since 2013 and that his company provided sub-contracting bricklaying services to various builders engaged in the construction of residential premises: [25].
As relevantly to the sole amended ground of review, after testing the evidence, the Tribunal raised with Mr Singh the departmental policy as set out in PAM3: [51]-[52]. As will appear, the applicant contends that for the purposes of s 359AA of the Act, PAM3 is ‘information’ such that a failure to inform Mr Singh of the reason why PAM3 may be a reasonable part of the reason for affirming the decision on review and otherwise to comply with the requirements of that section, tainted the process and so resulted in jurisdictional error.
However, the Tribunal was not satisfied the position associated with the nominated occupation was genuine and that the position for the bricklaying occupation for which he had nominated Ms Kaur had been created to secure a migration outcome. Upon that basis, the Tribunal was not satisfied that the position existed and found reg 2.72(10)(f) was not met: [54]-[56].
As concerned s 140GBA, Labour market testing – condition, the Tribunal found this section generally required a sponsor to fulfil labour market testing requirements: [57]. Although satisfied of various requirements imposed by s 140GBA, the Tribunal was not satisfied there were no suitably qualified and experienced Australian citizens or Australian permanent residents or eligible temporary visa holders who were not readily available to fill the position: [69]-[70]. The Tribunal also took into account that Attractive Cleaning had nominated a family member for the position and, if the nomination and visa applications were successful, the consequence would be that Ms Kaur’s husband, Mr Singh, would be granted a 457 visa as a secondary applicant upon her visa application; a result which the Tribunal described as being, in essence, “a case of self-sponsorship”: [69]. The Tribunal was not satisfied the labour market testing conditions were met and so affirmed the delegate’s decisions to refuse the nominations.
Set out below are the Reasons at [54], [69]-[71]:
Position must be genuine
54In short, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal considers the position for the occupation of bricklayer for which Ms Kaur has been nominated has been created to secure a migration outcome. If the nomination applications and associated visa application were granted then Mr Singh and his wife and child would all be granted sc457 visas. After considering the oral evidence and the documentary evidence, the Tribunal is not satisfied the position associated with the nominated occupation is genuine. The Tribunal is not satisfied that the position exists.
55-56. . .
Labour Market Testing
57- 68. . .
69After reviewing the evidence, the Tribunal is not satisfied that the there is no suitably qualified and experienced Australian citizen, or permanent resident or eligible temporary visa holder not readily available to fill the nominated position. The applicant received a resume from a person who was a temporary resident and who had worked with the applicant in the nominated occupation and was willing to fill the position. Yet it appears the applicant did not employ this person, although in the business plan provided to the Department months later this person was listed as working in the occupation in the business. Further, the Tribunal took into consideration that the applicant has engaged other bricklayers, including Mr Anton Satik (an Australian citizen) as a bricklayer. The Tribunal also notes that the advertisement was placed during the Christmas period, a time when many persons are preparing for the festive season and summer holidays, rather than looking for a new job opportunity. The Tribunal also took into consideration that the applicant is nominating a family member for the position, and if the nomination and visa applications are successful the consequence would be that Mr Singh (the business owner) would be granted a sc457 visa (as a dependent) of his wife. In essence, this is a case of self -sponsorship. The Tribunal considered in the circumstances of this case, that the applicant has demonstrated that it would not employ a suitably qualified and experienced Australian citizen, or permanent resident or eligible temporary visa holder readily available to fill the nominated position.
70.While the Tribunal is satisfied that the labour market testing was undertaken within the specified period, the Tribunal is not satisfied having regard to that information that a suitable qualified and experienced Australian citizen or Australian permanent resident or eligible temporary visa holder was not readily available to fill the nominated position (s140GBA(3)(d)).
Procedural History
On 20 June 2017, the applicant filed an application for judicial review of the Tribunal’s decision to affirm the Minister’s decision together with an affidavit affirmed by Mr Singh, to which he exhibited copies of the Reasons and Tribunal’s decision.
On 10 July 2017, the Minister provided a response opposing the application and seeking an order that the application be dismissed on the basis the application does not establish any jurisdictional error.
On 20 February 2018, a registrar of the Court made an order for the application to be listed for show cause hearing before another judge of this court.
On 5 July 2021, the applicant filed an amended application together with submissions by which the original grounds of review were abandoned and substituted with a single ground of review. On 9 July 2021, a submission was filed on behalf of the Minister.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76]. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Authority’s decision: Act, s 476(2). An error in the process of administrative decision-making will not be jurisdictional and so will not attract an entitlement to relief unless the error was material in the requisite sense: MZAPC v Minister for Immigration and Border Protection [2021] HCA17, [1]-[2], [30]-[34], [60]. The onus of demonstrating error and that it is jurisdictional (including material) lies on the applicant.
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision in relation to the satisfaction of those matters is a decision upon a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ). By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted: Act, s 65.
Applicable principles – show cause
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described as a form of summary dismissal:
MZAJQ v Minister for Immigration[2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).
The power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In SZUTB, at [12]-[16], citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J), Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; and (2) a residual discretion whether or not to dismiss the application: see also SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). In Siddiquev Minister for Immigration and Border Protection, Gilmour J, at [19]-[21], explained, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be considered.
In Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051, [4], [17]-[18], Perry J observed that the approach to be taken on a show cause application differed from that taken on summary judgment inasmuch as: (1) the court was authorised to determine the application at a reasonably impressionistic level; (2) the applicant was confined on a show cause application to the grounds stated in the application; (3) contrastingly, summary judgment involved a critical evaluation of the available materials to determine whether there was a real question of fact or law that ought go forward for trial; (4) the onus in the two applications was different, with the applicant under r 44.13 having to demonstrate an arguable case such as to warrant the matter going forward for final hearing.
In reaching those conclusions Perry J considered it appropriate to rely upon the principles applied in an application for an extension of time. As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ); MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ). Such considerations are also instructive in relation to a show cause application. In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary evaluation of the merits of a substantive application involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. At [62]-[63], Her Honour stated:
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
Two of the factors identified by Mortimer J were that it would not be in the interests of the administration of justice to grant an extension of time where the proposed appeal had little or no prospects of success and that the matter should be assessed at an impressionistic level. While her Honour identified those matters in relation to an application for an extension of time, I consider that those principles should be applied in determining this show cause application.
Applicable principles – adverse information
The applicable principles were not in dispute.
In Division 5 of Part 5, Part 5-reviewable decisions: conduct a review, which comprises ss 357A-367 of the Act, s 357A(1) provides that the division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Relevantly, Div 5 contains provisions requiring the Tribunal, in the circumstances described, to inform an applicant either orally or in writing, by giving that applicant clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision that is under review. Those natural justice hearing obligations are located in ss 359AA and 359A of the Act.
Section 359AA reads:
359AAInformation and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 359A reads:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Section 359AA is to be read with s 359A which, where it applies, creates corresponding obligations on the Tribunal to give to an applicant clear particulars of any information which it considers would be the reason, or a part of the reason for it firming the decision that is under review and to ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied upon in affirming the decision and so invite the applicant to comment on or respond to it.
It is readily apparent that ss 359AA and 359A are intended to be complementary. However,
s 359AA is “clearly not intended to create a duty to take particular steps independently of the existence of a duty under” s 359A: cf SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, [2] (Moore, J), [79]-[80] (Tracey and Foster JJ); Special leave refused. Although SZMCD involved consideration of the analogue provisions in Div 4 of Pt 7, the reasoning is, in my opinion, equally applicable to s 359AA and 359A.
In SZMCD, Moore J described s 359AA as being merely facultative such that there being no duty (other than as imposed by s 359A), non-compliance with the provision was of no legal consequence. Tracey and Foster JJ stated at [86]-[87]:
The decision to engage the provisions of s 424AA is discretionary in the sense that the Tribunal is not obliged to take a course which engages those provisions but may do so if it considers such a course of action to be appropriate.
In our view, the Tribunal must always comply with the provisions of s 424A. However the Tribunal has a choice as to whether it will invoke the provisions of s 424AA.
See SZNOA v Minister for Immigration and Citizenship [2010] FCA 60, [22] (Cowdroy J).
For that reason any complaint respecting s 359AA must confront the text of par 359(1)(a) which allows that the Tribunal may orally give to an applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review. Relatedly, as s 359A(4) makes plain, that section does not apply to certain information including, that which is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member.
It is settled that, however broadly defined, ‘information’ for the purposes of s 359A does not extend to a decision-maker’s “subjective appraisals, thought processes or determinations”: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, 477; see also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [9], [77]. Nor, for the purposes of s 359A(1), does it apply to information excluded by par 359A(4)(a); that is, information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member.
Consideration – adverse information
The ground of review in the amended application reads:
The Second Respondent fell into error by failing to afford the Applicant procedural fairness as prescribed in ss.359A and 359AA of the Migration Act 1958 (Cth) (Act).
Particulars
(i)ss. 359A and 359AA of the Act codifies the Second Respondent’s obligation to put adverse material to an applicant and the process that must be followed to afford procedural fairness in this regard.
(ii)The Second Respondent failed to comply with s.359AA of the Act which engaged the requirement to comply with the requirements to comply with s.359A of the Act.
(iii)The Second Respondent subsequently failed to comply with s.359A of the Act and accordingly fell into error as a result of not observing the statutory process.
In substance, Attractive Cleaning complains that the Tribunal failed to comply with the requirements of s 359AA of the Act having regard to the way in which it deployed PAM3 in the course of the hearing by failing to ensure, as far as reasonably practicable, that Mr Singh understood why the information in PAM3 was relevant to the review, and the consequences of the information being relied upon in affirming the decision under review.
An appreciation of the way in which the amended ground of review was advanced is assisted by focus upon the reasons at [51]-[52]. As relevant to the sole amended ground of review, after testing other evidence, the Tribunal raised with Mr Singh the departmental policy as set out in PAM3 as follows:
The Tribunal invited Mr Singh to comment on the Department policy as set out in PAM3. This policy notes in part that:
The 457 programme is designed to enable employers to address labour shortages bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.
Eight examples of factors that might indicate that facilitating then entry or stay of the nominee is the primary objective of the application are:
·The nominee is a relative or personal associate of an officer of the sponsoring business ….
…
Note: The above policy settings do not prevent individuals from sponsoring themselves (that is, “self sponsorship”) – however, in such cases there needs to be another reason for the position being created.
It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration.
Responding to that policy and invitation, Mr Singh stated that “everything is genuine”: [52].
Mr Oldham of counsel for the applicant adapted the language of s 359AA in submitted that the Reasons demonstrated the Tribunal had orally invited Mr Singh to comment upon PAM3 and that he had done so. However the submission proceeded upon an embedded assumption that the Tribunal had exercised the discretionary power conferred by s 359AA to invite the applicant to comment upon information that was of a kind to which it applied. Upon a reading of the whole of the Reasons I do not accept that the Tribunal had exercised a choice to invite the applicant to do so. The Tribunal’s core function is one of review. For the purpose of review, an applicant is entitled to be invited to attend a hearing and present evidence and arguments on review. It does not follow that every time a decision-maker raises an issue with an applicant in the course of review that s 359AA is engaged. The authorities considered above explain the scope and operation of the provision. During the course of a hearing, Tribunal may adopt the course of explaining to an applicant that particular information may be a reason or part of the reason for affirming a decision on review and otherwise adopts measures in par 359AA(1)(b). But the circumstance a Tribunal discusses particular information during a hearing does not impel a conclusion that the decision-maker has concluded it is appropriate to adopt the course of action proffered by s 359AA merely because a particular topic has been raised.
The substantive complaint made by the applicant was that the Tribunal had failed adequately to explain why that policy was relevant to the review or that it may be relied upon in affirming the delegate’s decision. Complaint was also made, adopting the text of s 359AA of the Act, of a failure to inform Mr Singh that he may seek additional time to comment.
Mr Cunynghame, solicitor-advocate for the Minister, submitted that the amended ground of review was misconceived, essentially because PAM3 was not information within the meaning of s 359AA and so the obligations it imposes were not engaged.
In light of the parties’ submissions, the determination of the application largely turned upon whether PAM3 constitutes ‘information’ for the purposes of s 359AA.
The Tribunal was not obliged by s 359A of the Act to put the PAM3 policy to the applicant. That is because it was not information of a kind to which that section applied. By operation of par 359A(4)(a) is was excluded from the operation of that provision. The information in PAM3 was not specifically about either Attractive Cleaning or about Mr Singh or another person but rather was addressed to a class of persons being those employers seeking to engage the 457 program in the face of labour shortages by bringing in genuinely skilled workers in circumstances where such workers could not be sourced by an appropriately skilled Australian and labour to fill a position. While those considerations inform the application of s 359AA, it may be noticed that s 359AA does not contain an exclusionary provision like par 359A(4)(a). This does not supply a reason to conclude that information in s 359AA bears some different meaning to that applying under s 359A. Rather, it is to recognise that where it applies, s 359A provides that a Tribunal must adopt the measures which it requires, whereas s 359AA is not framed in mandatory, but discretionary terms.
I do not accept that the course adopted by the Tribunal as set out at [51]-[52] entailed an exercise of the discretion to give Mr Singh clear particulars that PAM3 would be a reason or part of the reason for affirming the delegate’s decision. To the contrary, insofar as the Tribunal paid regard to PAM3 at [51] it was to recognise that the subclass 457 visa program should not be used by businesses to create a position to facilitate the entry or stay of a family member. I agree in the submission on behalf of the Minister that PAM3 merely describes the policy intention behind visa subclass 457 but is otherwise neutral in its terms and so cannot be considered to constitute part of the reason for affirming the decision that is under review. To adopt the Full Court’s reasoning in SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1, [26], the information in PAM3 was neutral in character; see also SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498, [36]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [17]-[18].
Although it is unnecessary, for the purposes of the present application to decide the issue, there was obvious force in the Minister’s submission that a decision-maker’s reference to PAM3 policy was somewhat analogous to a reference to general country information and which, upon the operation of par 359A(4)(a) or 424A(3)(a) respectively, a decision-maker is not required to afford a visa applicant an opportunity to comment upon: cfMinister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572, [66]-[71], [138]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330, [44]-[46], QAAC of 2004 v RRT [2005] FCAFC 92, [7]-[30]; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178, [11]-[16].
In my opinion, the amended ground of review is not reasonably arguable.
Further, while it was accepted that s 359AA operates to confer discretion upon a Tribunal to put information to an applicant on merits review, it was no part of the amended ground of review to suggest that the manner in which the Tribunal had dealt with the PAM3 issue at [51]-[52] was indicative of error of the kind which may be jurisdictional as where the exercise or non-exercise of the discretionary power it conferred was shown to be legally unreasonable.
Conclusion
The applicant has not satisfied the court that an arguable case for relief has been raised.
Nor has the applicant satisfied the court that the residual discretion conferred by r 44 ought to be exercised in favour of a conclusion that the matter ought go forward for a final hearing.
The application should be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 4 August 2021
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