Bao v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 655

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bao v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 655

File number:

PEG 339 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

1 April 2021

Catchwords:

MIGRATION – Subclass 187 visa – decision of the Administrative Appeals Tribunal – where the applicant had no approved nomination – no jurisdictional error – application dismissed.   

Legislation:

Migration Act 1958 (Cth), ss 379C, 476

Migration Regulations 1994 (Cth), cl 187.233 of Schedule 2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

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 SZLIX [2008] FCAFC 17

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

51

Date of hearing:

31 March 2021

Place:

Perth

Applicant:

Appeared in person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 339 of 2020

BETWEEN:

HIEU THUAN BAO

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	1 APRIL 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL

1. The applicant is a citizen of Vietnam. He arrived in Australia on a student visa in 2013 (Court Book (“CB”) 8).

2. On 14 March 2017, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 1-12). The applicant indicated that his nominated position was as a “retail manager”. He was sponsored by Lam Quang Trang (the “sponsor”). The applicant’s partner, Ms Nguyen, was included in the application.

3. On 2 November 2018, the applicant was advised that the nomination submitted by his sponsor had been refused (CB 14-16). The applicant was advised that, as such, the visa could not be granted and he could withdraw the application or comment on the information. The applicant was given 28 days within which to withdraw his application or comment.

4. On 15 March 2019, Ms Nguyen advised the then Department of Home Affairs that she wished to withdraw her application (CB 19-23).

5. On 26 June 2019, the applicant was again invited to comment on the fact that the nomination had been refused (CB 25-28).

6. On 29 July 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 29-34). The delegate found that, as the applicant was not the subject of an approved nomination, he could not meet cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”).

7. On 7 August 2019, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 35-36).

8. The applicant attended a hearing before the Tribunal on 4 November 2020 (CB 49-51).

9. The Tribunal made an oral decision at the conclusion of the hearing on 4 November 2020 affirming the delegate’s decision not to grant the applicant the visa (CB 54).

10. On 10 November 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court the applicant must demonstrate that the Tribunal fell into jurisdictional error.

    TRIBUNAL’S DECISION

11. The Tribunal’s decision is one page long and spans 8 paragraphs.

12. In full, the decision provides:

    1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 July 2019 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).

    2. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations. The delegate found that the appointment, to which the visa application relates, has not been approved by the Department.

    3. The applicant lodged an application for review of the delegate's decision with the Tribunal on 7 August 2019 and with the application enclosed a copy of the primary decision record.

    4. At the hearing on 4 November 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

    STATEMENT OF DECISION AND REASONS

    5. According to the primary decision record provided to the Tribunal by the applicant, the nomination application lodged by Lam Quang Trung was refused by the Department. You confirmed this in your oral evidence given at today's hearing. You also gave evidence that, at the time of the Tribunal decision, there is no approved nomination in respect of your application for subclass 187 visa.

    6. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233(3) lodged by Lam Quang Trung on behalf of the applicant, has not been approved at the time of the Tribunal's decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 187.233(3) at the time of its decision. It follows that the applicant does not meet the requirements of vcl.187.233 to the Migration Regulations.

    7. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry Stream have not been met, the decision under review must be affirmed.

    DECISION

    8. The Tribunal affirms the decision under review.

    PROCEEDINGS IN THIS COURT

13. In his application for judicial review application dated 10 November 2020, the applicant provides two grounds of review, as follows:

    1. AAT did not offer me opportunities to explain more about my case.

    2. AAT failed to consider hidden reasons about negligence of the previous migration agent

14. The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.

15. The materials before the Court thus include the judicial review application dated 10 November 2020, a Court Book numbering 58 pages (Exhibit 1) and an outline of submissions filed by the Minister on 3 March 2021.

16. The applicant appeared before this Court without legal representation. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions and had both documents with him in Court.

17. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

18. To assist the applicant, the Court explained to that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. 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].

19. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. 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.

20. Against this background, the applicant explained that, as he was new to Australia, he had “trusted his migration agent”. He stressed that there was something “really wrong” with his migration agent and explained that all of the emails between the migration agent and the Tribunal “were not sent to him”. The applicant advised the Court that he was trying to find a new migration agent.

21. The Court will address these oral submissions below.

    CONSIDERATION

    Ground 1

22. In ground 1, the applicant states:

    AAT did not offer me opportunities to explain more about my case.

23. Contrary to what is pleaded, the Tribunal did, on two occasions, invite the applicant to provide supporting documents and evidence.

24. This first occurred on 8 August 2019.  Relevantly, the Tribunal wrote as follows to the applicant:

    If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

25. This was followed by a second request on 30 September 2020 via the invitation to attend the hearing.  The invitation stated:

    Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.

    We request that the requested material and other evidence are provided to us at least 7 days before the hearing date.

26. It is clear that the Tribunal gave the applicant two opportunities to provide information and “explain more about [his] case” prior to the Tribunal hearing.

27. The applicant then attended a hearing before the Tribunal on 4 November 2020. The Tribunal’s hearing record shows that the hearing lasted for 11 minutes. Two minutes consisted of the Tribunal delivering an oral decision. In effect, the substantive hearing lasted for 9 minutes.

28. While the hearing was arguably “short”, it is not clear to the Court on the evidence that the applicant was denied an opportunity to engage with the Tribunal during the hearing. Indeed, the Tribunal specifically notes that the applicant gave evidence that he did not have an approved nomination.

29. While the Court understands that the applicant may have wished to explain “why” he did not have an approved nomination or detail his personal circumstances, once the applicant indicated that that he did not have a nomination the Tribunal had no choice but to affirm the delegate’s decision.

30. Accordingly, even if the applicant feels that he did not have a proper opportunity to “explain his case”, this is immaterial as any further explanation of the sort suggested could not have resulted in a different outcome. On the applicant’s own evidence, the Tribunal was bound to affirm the visa as no nomination existed.

31. Ground 1 is, accordingly, dismissed.

    Ground 2

32. Ground 2 states:

    AAT failed to consider hidden reasons about negligence of the previous migration agent

33. On the evidence before the Court, the applicant was not represented by a migration agent while his application was before the Tribunal. Accordingly, any actions on the part of the migration agent could not have stultified the Tribunal’s decision-making processes.

34. The applicant was represented by a migration agent before the delegate. It is noted that the Tribunal’s hearing record contains a note which states:

    - articles ready to sent to Member if needed, about [migration agent]

35. It is at least arguable that the agent that the applicant relied on to lodge his visa application did not do what was asked of her. 

36. It is noted that the applicant himself refers to the “negligence” of his agent. Negligence does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. At the hearing before this Court, the applicant stated that he was not made aware of any correspondence exchanged between his migration agent and the Department. While the Court is sympathetic to the applicant, it cannot be said here on the evidence that the agent’s conduct amounts to a fraud on the Tribunal.

37. The applicant lodged the application at the Tribunal on his own behalf. He appeared before the Tribunal by himself and did so at all times before the Tribunal. Any prior actions on the part of his agent had no bearing on the Tribunal’s decision. While the applicant may feel aggrieved by the conduct of his agent, this is not a basis for finding jurisdictional error in the circumstances of this case.

38. If the applicant has any concerns in relation to the conduct of the migration agent, those concerns should be directed to the Office of the Migration Agent’s Registration Authority.

39. Ground 2 is, accordingly, dismissed.

    Oral Submissions

40. In his oral submissions, the applicant referred to the fact that he did not receive documents from the “Tribunal” as they were sent to his migration agent.

41. It appears that the applicant is, in fact, referring to what occurred before the delegate. As noted above, the applicant was not represented by a migration agent for the purpose of his review before the Tribunal. All correspondence relevant to the Tribunal hearing was sent to the applicant’s email address as nominated in his review application.

42. By virtue of s 379C of the Act (and despite the applicant’s claims that he did not receive any correspondence from the Tribunal) the applicant was deemed to have received the correspondence.

43. To the extent that the applicant claims that his migration agent did not provide him with correspondence from the Department, this Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4). The Tribunal’s decision “cures” the delegate’s decision.

44. In reply submissions, the applicant explained that “two hours prior to the hearing he was phoned by the Tribunal to ask if there were any documents or information that he wanted to provide”. The applicant explained that, in response, he “provided information about his migration agent” and is concerned that, during the Tribunal hearing, the Tribunal “never referred to the migration agent”.

45. As noted above, the Tribunal’s hearing record, includes a statement that reads:

    - articles ready to sent to Member if needed, about [migration agent]

46. The Court is not unsympathetic to the concerns the applicant has with the conduct of his migration agent.  Unfortunately, on the evidence, any failures on her part relate to the delegate’s decision and do not impugn on the Tribunal’s ability to conduct a fair review. Further, any actions on the part of the migration agent are irrelevant in circumstances where the applicant himself conceded in his evidence to the Tribunal that he “did not have a nomination”.

47. Finally, the applicant advised the Court that his sponsor was not aware of the nomination decision. Whether or not the sponsor was unaware of the decision made in relation to its review is not a matter relevant to the application before this Court.

48. The applicant’s oral submissions do not identify any error.

    Futility

49. The Court further notes that, even if there was a jurisdictional error in the Tribunal’s decision, it would be futile to grant any relief. The applicant is not the subject of an approved nomination. That fact cannot be cured. He is “doomed to fail” as he can never meet cl 187.233 if the matter is remitted.

    CONCLUSION

50. The application for judicial review and the applicant’s oral submissions fail to identify any jurisdictional error. The Court has otherwise been unable to identify any error on the part of the Tribunal.

51. The application for judicial review is, accordingly, dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       1 April 2021