Bao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 150
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 150
File number: PEG 112 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 9 March 2022 Catchwords: MIGRATION – Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicants a fair hearing – whether the Tribunal had the power to lift the bar imposed by s 48 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider whether the applicants satisfied the requirements of the other visa options – whether the Tribunal failed to consider compassionate and compelling circumstances when making its decision – whether the Tribunal “took too long” to hear the application – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 48, 65, 359A, 366, 476
Migration Regulations 1994 (Cth), cll 186.223 and 186.311 of Schedule 2, Part 186 of Schedule 2
Cases cited: Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
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
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Pandya v Minister for Immigration [2020] FCCA 99
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 4 March 2022 Place: Perth Applicants: First applicant, in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 112 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUY BAO
First Applicant
THUY DIEM THUONG VU
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:
9 MARCH 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:
INTRODUCTION
The applicants in this matter seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 4 May 2021 (Court Book (“CB”) 92-97) which affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicants Employer Nomination (Class EN) (Subclass 186) visas (the “visas”) (CB 38-41).
BACKGROUND
A summary of the background relevant to this matter is provided in written submissions filed by the Minister in this matter on 14 January 2022 at [3] to [13]. The Court has reviewed the Court Book in detail and adopts that summary as its own. With minor additions and alterations, that summary provides as follows.
On 6 June 2017, the first applicant, a citizen of Vietnam, applied for the visa in the Temporary Residence Transition stream (CB 1-17). In that application, the first applicant identified the sponsoring employer as “The Trustee for the Cheuk Family Trust” (the “sponsor”) and the nominated position as “Cook”. The first applicant’s wife (the “second applicant”) was included in the visa application. The applicants were assisted by a migration agent throughout the visa process (but not, as noted below, when appearing before the Tribunal).
On 7 May 2018, the Department notified the first applicant that the nomination application submitted by his sponsor had been refused. The first applicant was invited to provide comment or withdraw his application. He was also advised that if he did not withdraw his application or respond to the invitation to comment within 28 days, the application would be refused
(CB 30-32).
The applicants did not respond to the invitation to comment.
On 14 June 2018, a delegate of the Minister refused to grant the applicants the visas
(CB 38-41). The delegate was not satisfied that the first applicant met cl 186.223 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) because he was not the subject of an approved nomination. As such, the second applicant failed to satisfy cl 186.311 of the Regulations.
On 20 June 2018, the applicants applied to the Tribunal for review of the delegate’s decision (CB 42-43). They were again assisted by a registered migration agent (at the time the application was made).
It is noted that the sponsor also applied to the Tribunal for review of the decision to refuse its nomination application. The sponsor was assisted by the same migration agent.
On 26 November 2020, the agent wrote to the Tribunal and advised that the sponsor’s director had transferred the business to his ex-wife, the business now had a “new ABN and business structure” and that the first applicant was “no longer employed” (CB 48-49). Despite that, the first applicant asked that the Tribunal consider his “unfair and miserable situation”. In this regard, a statement was provided which confirmed that the sponsor had ceased operating in October 2019 and that the first applicant now worked at a different restaurant. The first applicant also asked that the Tribunal allow him to apply for another visa while onshore (CB 51-52).
On 12 February 2021, the Tribunal invited the applicants to attend a telephone hearing scheduled for 25 March 2021 (CB 58-62).
On 19 February 2021, the Tribunal invited the applicants to comment on information before it pursuant to s 359A of the Migration Act 1958 (Cth) (the “Act”) (CB 70-73). The particulars of the information were that the Tribunal had recently affirmed the Department's decision not to approve the sponsor’s nomination application. The Tribunal explained that, if it relied on this information, it may find that the position specified in the visa application was not the subject of an approved nomination – such that the first applicant would not satisfy a requirement for the grant of the visa and the decision under review would be affirmed. The Tribunal sought the applicants’ comments or response by 5 March 2021.
On 3 March 2021, the applicants’ migration agent responded to the Tribunal with submissions from both the agent and the first applicant (CB 78-85). In his submissions, the first applicant explained that he was now working for a different employer. He also asked the Tribunal to grant him the visa, explaining that if it was refused, he would not be able to apply for another visa onshore and that it would be difficult for him to return to Vietnam because of the
COVID-19 pandemic.
On 25 March 2021, the applicants attended a hearing before the Tribunal (via telephone). Their migration agent did not attend but they were assisted by an interpreter in the Vietnamese language (CB 86-88).
On 4 May 2021, the Tribunal affirmed the decision (CB 92-97).
On 2 June 2021, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court the applicants must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 6 pages long and spans 23 paragraphs. The final page of the decision contains an extract of relevant provisions contained in the Regulations.
The Tribunal began by explaining that the decision under review related to a decision made by a delegate of the Minister on 14 June 2018 to refuse to grant the applicants the visas under s 65 of the Act. The Tribunal noted, in this regard, that the applicants had applied for the visas on 6 June 2017 and that, at the time of their application, Class EN contained one subclass: Subclass 186 (the “Employer Nomination Scheme”) ([1]-[2]).
The Tribunal then detailed (at [3]) the criteria for the grant of a Subclass 186 visa as set out in Part 186 of Schedule 2 of the Regulations noting that:
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. Applicants seeking to satisfy the primary criteria must meet the 'common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
The Tribunal continued:
4.In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).
5.The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant was not the subject of a nomination approved by the Minister.
The Tribunal then explained that the applicants had appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. The Tribunal noted that it had exercised its discretion to hold the hearing by telephone. The Tribunal continued:
7.… The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants did not raise any concerns in relation to holding a telephone hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
In full, the remainder of the Tribunal’s decision provides as follows:
Nomination of a position
10.Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
11. In addition, this criterion also requires that:
•the nomination has been approved and has not been subsequently withdrawn;
•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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information;
•the position is still available to the applicant; and
•the visa application was made no more than six months after the nomination of the position was approved.
12.On 19 February 2021, the Tribunal wrote to the applicants via their authorised representative, pursuant to s.359A of the Act. This letter followed a decision in a matter (1814794) which related to the nomination of the relevant position by the applicant's employer, The Trustee for the Cheuk Family Trust. The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by The Trustee for the Cheuk Family Trust was refused by a delegate of the Minister, and The Trustee for the Cheuk Family Trust had sought a review of the refusal decision, but the Tribunal had affirmed the decision under review. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.
13.On 3 March 2021, by way of response to the Tribunal’s letter, the applicants wrote to the Tribunal and indicated, among other things, that the applicant had worked for more than five years in the nominated position and given his best efforts as an employee. He indicated that the cessation of his employment in the nominating business, as a consequence of the relationship of the owners (Mr and Mrs Cheuk) coming to an end and the applicant business subsequently ceasing to operate, was beyond his control.
14.At the hearing, the Tribunal reiterated to the applicants the requirements of cl.186.223. In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate's decision. The Tribunal also explained that cl.186.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. The applicants indicated that they understood the requirements for the visa.
15.The applicant told the Tribunal that he felt he was a victim of circumstances beyond his control. He confirmed that in 2015 he had started working for The Trustee for the Cheuk Family Trust, which traded as the Mends Street Cafe, and that he had continued working on a full time basis in this business until it ceased to operate as a consequence of the breakdown of the marriage of Mr and Mrs Cheuk in October 2019. He said Mrs Cheuk established another restaurant (at the same premises) and he continued working in that business - 'Saigon Eats' - until June 2020. The applicant told the Tribunal that after he had ceased working for The Trustee for the Cheuk Family Trust, he discovered that Mr Cheuk had not made any superannuation payments on his behalf during his employment. The applicant reiterated that he had given a great deal to his sponsoring employer, with an expectation that a permanent visa would ultimately be granted to him. He indicated that he and the second-named applicant had lived in Australia for over 12 years, and had spent a significant amount of money progressing this visa application.
16.The applicant told the Tribunal that he is a Chef with 8 years experience. He said he is currently working for another restaurant in Perth and that this employer is willing to sponsor him. However, he said that as the holder of a Bridging Visa, he is unable to apply for another visa in Australia. He told the Tribunal that he is concerned that applying for another visa offshore will be very expensive and prolonged because of the Covid-19 pandemic. He urged the Tribunal to lift the s.48 bar to enable him to remain in Australia and apply for another visa.
17.The issue in the present case is whether the applicant meets the requirements of cl.186.223.
18.On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 6 June 2017, the applicant was the subject of a nomination application by The Trustee for the Cheuk Family Trust for the position of Cook. The Tribunal further finds that the nomination application lodged by The Trustee for the Cheuk Family Trust was refused by the Department on 7 May 2018, and although The Trustee for the Cheuk Family Trust sought review of the refused nomination, on 10 December 2020, the Tribunal affirmed the Department's decision to refuse the nomination.
19.As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.186.223(2) is not met. It follows that cl.186.223 is not met.
20.The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
21.The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicant does not satisfy the secondary criteria for the visa. Consequently, the second-named applicant does not satisfy cl.186.311 and the decision under review must be affirmed in respect of her.
22.The Tribunal acknowledges the difficult situation faced by the applicants, as the refusal of the visas means that it appears the applicants will be subject to the bar imposed by s.48 of the Act, which prevent them from making another application in Australia for an employer sponsored temporary or permanent visa. The Tribunal also acknowledges that the situation of the applicants is further complicated by the Covid-19 pandemic which has restricted international travel, and thus, the applicant’s ability to apply for another visa from outside Australia. However, the Tribunal does not have the power to lift the bar imposed by s.48 of the Act. Nor does it have any discretion to waive the requirements of cl.186.223 or cl.186.311, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.
On the basis of the above, the Tribunal affirmed the decision not to grant the applicants the visas (at [23]).
PROCEEDINGS IN THIS COURT
The applicants filed an application for judicial review in this Court on 2 June 2021. That application raises four particularised grounds of review as follows:
1.There has been a breach of natural justice on the basis that the applicants did not have a fair opportunity to present the case in person:
a.The AAT hearing was conducted by telephone, which was difficult to hear, had noise background that my submissions and arguments;
b.The duration of the hearing took 32 minutes on the phone, the method of hearing by telephone made it difficult and uncomfortable to remain on the phone for a longer period to present my arguments and therefore the hearing was not fair or just; and
c.The Tribunal had put more weigh on “economical and quick” over the principles of fair and just when it choose to conduct the hearing by telephone.
2.The Tribunal erred in law by stating that the Tribunal does not have power to lift the bar imposed by section 48 of the Act.
3.The Tribunal failed to consider whether the visa applicants satisfied the requirements of other visa options that may be relevant to the applicants.
4.The Tribunal failed to consider compassionate and compelling grounds in exercising its decision including
a.The nomination was refused due to factors outside of my control, including the breakdown of the marriage of Mr and Mrs Cheuk
b.The sponsoring employer went into liquidation due to financial factors and Covid 19 pandemic;
c.The applicants were not able to leave Australia to apply for another visa outside of Australia.
In support of the application for review, the first applicant affirmed an affidavit on 2 June 2021. That affidavit simply restates the grounds of review contained in the application for judicial review.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit, both filed by the applicants on 2 June 2021, a Court Book numbering 97 pages (marked as Exhibit 1) and written submissions filed by the Minister on 14 January 2022.
At the hearing before this Court, the first applicant appeared via video. No concerns were raised in this regard. Nor did any arise. The first applicant spoke on behalf of his wife. At his request, an interpreter was made available. However, the first applicant indicated that an interpreter was not required as he preferred to communicate to the Court in English. The Court is satisfied that the first applicant was able to adequately engage with the Court and effectively explain the applicants’ position. The Court confirmed with the first applicant that he had a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to the first applicant that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: 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 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.
Against that background, the first applicant (who did not address his grounds of review) explained that his primary concern was that the “AAT took too long [three years] to look at [his] application”. These comments will be addressed below.
CONSIDERATION
Grounds of Review
Ground 1
For ease of reference, ground 1 provides:
1.There has been a breach of natural justice on the basis that the applicants did not have a fair opportunity to present the case in person:
a.The AAT hearing was conducted by telephone, which was difficult to hear, had noise background that my submissions and arguments;
b.The duration of the hearing took 32 minutes on the phone, the method of hearing by telephone made it difficult and uncomfortable to remain on the phone for a longer period to present my arguments and therefore the hearing was not fair or just; and
c.The Tribunal had put more weigh on “economical and quick” over the principles of fair and just when it choose to conduct the hearing by telephone.
As accurately summarised by the Minister (at [20] in written submissions filed on 14 January 2022), the particulars to ground one contend that there was a breach of natural justice because the Tribunal hearing was conducted via telephone, was affected by background noise and was only 32 minutes – all of which, collectively, made it difficult to for the applicants to present their case. The applicants further contend that the Tribunal “placed too much weight on conducting a review that was economical and quick”.
Insofar as the first applicant argues that he was not afforded a fair hearing due to the hearing being conducted by telephone, the Tribunal had discretion to allow the hearing to proceed by telephone: see s 366(1) of the Act; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378 at [65]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44].
The discretion to hold a hearing by telephone must be exercised reasonably. It cannot be said that the Tribunal’s decision to do so was not exercised reasonably. Relevantly, as accurately detailed by the Minister (at [23]-25]):
(a)the Tribunal’s hearing invitation (CB 58-62) advised the applicants under the heading “Other things to note” that if they were not able to participate in the telephone hearing, they should advise the Tribunal as soon as possible and the presiding member would consider any submissions as to why it was not “suitable or possible” for the hearing to proceed as scheduled;
(b)at no time did the applicants claim that they would not be able to participate in the telephone hearing. Rather, in their response to hearing invitation, the applicants, through their representative, confirmed that they would attend the telephone hearing as scheduled (CB 63-69) and expressly responded “No” to the question: “Do you believe that you or another person will experience difficulty participating in the hearing by telephone or videoconference or the hearing cannot be conducted by telephone or videoconference?” (CB 67); and
(c)there is also no evidence, and the applicants have never contended that, they raised any issues about the hearing proceeding via telephone during the hearing or at any point in the almost six weeks after the hearing and before the decision was made.
Insofar as the first applicant is suggesting that “background noise” made it difficult for the Tribunal to hear his submissions via telephone, the Court disagrees. There is no evidence of any sort before the Court that “background noise” was an issue or that the applicants ever raised a concern in this regard. Further, a review of the Tribunal’s decision makes it clear that the Tribunal expressly and forensically considered the first applicant’s evidence that there was no approved nomination in force in respect of his visa application. The Tribunal further acknowledged the difficult situation faced by the applicants (noting that the refusal of the visas meant that the applicants would be subject to the bar imposed by s 48 of the Act) and the fact that the applicants’ situation was further complicated by the COVID-19 pandemic (noting that the pandemic has restricted international travel and made it difficult for the first applicant to apply for another visa from outside of Australia).
Finally, to the extent that the applicants now say that the Tribunal focussed more on the need to make a decision “quickly”, rather than “fairly”, the Court disagrees.
In determining whether to exercise its discretion to proceed via telephone, the Tribunal explained its decision to do so as follows:
7. … The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants did not raise any concerns in relation to holding a telephone hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments
It cannot be said here that the Tribunal focussed “too much” on speed at the expense of justice. What the Tribunal is required to do is assess the situation it faces and balance the evidence as a whole. Here, as outlined by the Minister (at [22] in written submissions filed on 14 January 2022), the Tribunal assessed the following factors:
(a)the complexities caused by the COVID-19 pandemic;
(b)the nature of the matter (which involved a binary and uncontested issue of whether the first applicant was the subject of an approved nomination);
(c)the applicants’ circumstances;
(d)the fact that the applicants did not raise any concerns in relation to holding a hearing by telephone;
(e)the further delay to the matter if the hearing was not conducted by telephone; and
(f)the Tribunal's objective of providing a mechanism of review that was fair, just, economical and quick.
It cannot be said here that the Tribunal erred or acted unfairly in engaging with the above factors as it did or that the Tribunal acted unreasonably in deciding to proceed as it did.
There is no evidence before the Court that the applicants were not afforded a fair hearing because the hearing was held by telephone.
Ground 1, accordingly, fails.
Ground 2
For ease of reference, ground 2 provides:
2.The Tribunal erred in law by stating that the Tribunal does not have power to lift the bar imposed by section 48 of the Act.
By ground 2, the applicants seem to suggest that the Tribunal has the power to lift the bar imposed by s 48 of the Act and that the Tribunal should have done so.
In effect, s 48 of the Act prevents applicants from applying for further visas if their previous application is refused. This is referenced as the “s 48 bar”. If s 48 of the Act applies, applicants cannot, generally, apply for another substantive visa as long they remain in Australia.
Unfortunately for the applicants, the Tribunal has no discretion or indeed power to lift the “s 48 bar”. A request of that sort can (in certain circumstances) be made, but only to the Department, or as a request for the exercise of Ministerial discretion. A request cannot, however, be made to the Tribunal. The Act is inflexible in this regard: Amini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1731 at [36] and [40].
Further, as correctly argued by the Minister (at [28] in written submissions filed in this matter), s 48 of the Act could only be relevant to a subsequent visa application. The determinative issue before the Tribunal was whether the first applicant had an approved nomination, and not whether s 48 of the Act should have any future application. The Tribunal’s comments on s 48 of the Act had no bearing on the outcome of the visa application. Nor could it.
No error arises in relation to ground 2.
Ground 3
For ease of reference, ground 3 provides:
3.The Tribunal failed to consider whether the visa applicants satisfied the requirements of other visa options that may be relevant to the applicants.
Although not entirely clear, given the factual history to this matter and noting the first applicant’s evidence what he now worked for a new employer, the Court assumes that the first applicant here is suggesting that the Tribunal should have given him more time to secure a new sponsorship or nomination from a new or different employer.
Unfortunately, the Tribunal does not have the power to do that which the first applicants asks of it. As this Court has determined in previous similar judgments, visas such as that in issue here are “tied” to the sponsor and the approval of the nomination. It is a requirement that the sponsor’s nomination application be successful for the visa applicant to be successful. If the nomination application is not successful, an applicant’s visa application is “doomed to fail”.
In this matter, there was evidence that, although the sponsor had challenged the delegate’s nomination decision, that decision was upheld by Tribunal. There was no evidence that that decision had been or was being challenged in the Federal Circuit and Family Court of Australia and the first applicant himself gave evidence that he was working for another restaurant.
In the circumstances, the Tribunal did the only thing it could do. No error arises in this regard.
The Court also notes that, even if there was a jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105. The Tribunal would, again, have no choice but find that the first applicant did not meet cl 186.233 of the Regulations as the first applicant is not the subject of a valid nomination. The application is a “once off” process tied to the sponsor’s nomination application which, here, has failed. This means that the first applicant will, on any view, fail if the matter is remitted to the Tribunal.
No error arises in this regard.
Ground 4
For ease of reference, ground 4 provides:
4.The Tribunal failed to consider compassionate and compelling grounds in exercising its decision including
a.The nomination was refused due to factors outside of my control, including the breakdown of the marriage of Mr and Mrs Cheuk
b.The sponsoring employer went into liquidation due to financial factors and Covid 19 pandemic;
c.The applicants were not able to leave Australia to apply for another visa outside of Australia.
Contrary to what is stated in ground 4, the Tribunal did, in fact, acknowledge the challenges faced by the applicants (at [22]) but ultimately determined that it had no discretion to waive the requirements of cll 186.223 or 186.311 of the Regulations. This reasoning is sound. The Tribunal has no powers to waive the relevant requirements, however compelling the individual circumstances might be: Pandya v Minister for Immigration [2020] FCCA 99 at [26].
No error arises in relation to ground 4.
Other – Tribunal “delay in hearing application”
At the hearing of this matter, the first applicant explained to the Court that his primary concern with the Tribunal’s approach was that “it took too long to hear the application”.
The applicants appealed the delegate’s decision on 20 June 2018. The Tribunal did not hear the application until 25 March 2021 – a period of almost three years.
It is noted that the Tribunal’s governing statute (the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) provides (at section 2A) that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
While the Court sympathises with the applicants, the fact that there was a three year gap between when the applicants filed their application and when the Tribunal heard the application does not indicate jurisdictional error on the part of the Tribunal.
Section 2A of the AAT Act is aspirational. There is no statutory period within which the Tribunal must determine an application. Delay may be found to have caused jurisdictional error in circumstances akin to those canvassed by the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (“NAIS”). However, those circumstances do not arise here. The delay between the Tribunal hearing the matter and its decision was less than two months. No issue of the kind that arose in NAIS is present here.
Arguably, the delay in attending to the application was a result of a system that suffers from an extraordinary work load. The resulting delay, while regrettable, does not constitute an error of the sort that this Court can address.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 2 June 2021 have failed to identify any jurisdictional error. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 March 2022
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