Beri v Minister for Immigration and Border Protection
[2021] FedCFamC2G 328
•8 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beri v Minister for Immigration and Border Protection [2021] FedCFamC2G 328
File number: MLG 1325 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 8 December 2021 Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Temporary Business Entry (Class UC) visa – whether Tribunal decision illogical or irrational – whether applicant denied procedural fairness – whether delay by the Tribunal amounts to jurisdictional error – whether the Tribunal failed to have regard to a relevant consideration – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 57, 359AA, 476, 477(1)
Migration Regulations 1994 (Cth), Sch 2 cl 457.223(4), Sch 2 cl 457.321Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 27 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Wright Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1325 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NITIN BERI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application filed on 22 June 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 LADHAMS:
INTRODUCTION
This is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) filed on 22 June 2017. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 30 May 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister to refuse to grant the applicant a Temporary Business Entry (Class UC) visa (visa).
For reasons set out below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application to this Court.
BACKGROUND
The applicant and his wife applied for the visa on 1 April 2015. The applicant was the primary visa applicant and his wife was included in the visa application as a secondary visa applicant.
On 6 October 2015 a delegate of the Minister refused to grant the applicant and his wife the visa. The delegate was not satisfied that the applicant had the necessary skills, qualifications and employment background necessary to perform the nominated occupation of cook. Therefore the applicant did not meet the criteria in cl 457.223(4)(da) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that the applicant’s wife did not meet the criteria for grant of the visa in cl 457.321 of the Regulations because she was not a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.
The applicant and his wife applied to the Tribunal for review of the delegate’s decision on 19 October 2015.
On 13 February 2017 the applicant attended a hearing before the Tribunal to give evidence and present arguments.
On 30 May 2017 the Tribunal:
(a)affirmed the delegate’s decision not to grant the applicant the visa; and
(b)found that it had no jurisdiction in relation to the review application made by the applicant’s wife.
TRIBUNAL DECISION
The Tribunal identified that the issues for its consideration were whether the applicant met the criteria in cl 457.223(4)(a) and (da) of the Regulations.
The Tribunal identified that cl 457.223(4)(a) required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
The Tribunal had regard to information that Rao Madhukar ATF Mers Family Trust was an approved standard business sponsor for the period from 20 November 2013 until
20 November 2016, that there was an approved nomination application for the position of cook in relation to the applicant for the period from 10 August 2015 until 10 August 2016, but at the date of the hearing the applicant was not the subject of an approved nomination and there was no pending sponsorship application or nomination application in respect of the applicant. The applicant was invited to comment on this information. He told the Tribunal that the Department told him that if his sponsor was not going to sponsor anyone else, he did not need to renew the nomination until the review application was decided.
The applicant requested additional time to apply for a new nomination and was granted a period of seven days until 20 February 2017 to provide further evidence.
On 19 February 2017 the applicant provided the Tribunal with a copy of his employment contract dated 30 March 2015 and a letter approving his employer as a standard business sponsor dated 10 August 2015, which noted that the nomination approval would cease after 12 months.
After considering this information, the Tribunal was not satisfied that the applicant met the requirements of cl 457.223(4)(a) of the Regulations as he was not the subject of an approved nomination by a standard business sponsor.
The Tribunal identified that cl 457.223(4)(da) of the Regulations requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, in this case, cook (Australia and New Zealand Standard Classification of Occupations (ANZSCO) 351411).
The Tribunal had regard to Department policy and considered ANZSCO in assessing whether the applicant meets the criteria in cl 457.223(4)(da) of the Regulations. The Tribunal set out the indicative skill level for the nominated occupation of cook, which includes a Certificate III and at least two years on-the-job training, or a Certificate IV. ANZSCO also suggests that at least three years of relevant experience may substitute for the formal qualifications listed and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
The Tribunal considered the evidence provided by the applicant and was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
The Tribunal considered the applicant’s qualifications obtained in India. The Tribunal accepted that the applicant completed in India a Bachelor of Arts between 2000 and 2003 and a Bachelor of Laws between 2005 and 2008. However, the Tribunal was not satisfied that these qualifications were directly related to the nominated occupation of cook and the Tribunal was not satisfied that the qualifications demonstrated that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
At the Tribunal hearing on 13 February 2017, the applicant provided evidence of an additional qualification, namely, a Diploma of Hotel Management completed in India in June 2003. The Tribunal placed little or no weight on this qualification for the following reasons:
(a)the qualification was not listed in the applicant’s additional personal particulars information form (Form 1221) signed by the applicant on 30 April 2015 and was not produced at any time prior to the Tribunal hearing;
(b)the Diploma was not provided to the Department or referred to in correspondence provided to the Department in response to concerns raised about the authenticity of the Australian cooking qualifications;
(c)the applicant stated at the hearing that the Diploma was used as evidence of his prior learning in order to obtain the Australian certificates, but in his letter to the Department in September 2015 he stated that his work experience helped him to get the Australian qualifications;
(d)the applicant did not provide any documents setting out the subject matter of the Diploma course and gave vague evidence about the subjects he studied, and there was no evidence that he undertook any practical component;
(e)the qualification was not referred to in the correspondence from Future Academy dated 24 August 2015 who awarded the applicant with the Certificate III and Certificate IV cooking qualifications; and
(f)the period during which the applicant was said to have studied the Diploma coincided with the period during which he was studying a Bachelor of Arts and the Tribunal did not accept the applicant’s explanation that he studied the Bachelor of Arts during the evening and the Diploma of Hotel Management during the day.
The Tribunal accepted that the applicant obtained a Certificate III in Commercial Cookery dated 11 February 2015 and a Certificate IV in Commercial Cookery dated 13 March 2015, and that these certificates were awarded by Future Academy based on some form of assessment, rather than coursework or practical training. However, the Tribunal was not satisfied on the basis of these certificates that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The Tribunal placed little weight on the certificates because of the short duration of the courses, the applicant’s inconsistent evidence about whether the certificates were based on his work experience or his prior Diploma in India, and the lack of information in the letter from Future Academy about the basis upon which it awarded the applicant the certificates.
The Tribunal had regard to the applicant’s work experience as a part-time cook from
December 2014 until October 2015. The Tribunal gave some weight to the applicant’s oral evidence, but in the absence of any other evidence to verify this work experience as a part-time cook for 10 months, such as payslips, PAYG summary, superannuation or confirmation from the employer of this work experience, the Tribunal did not consider the applicant’s oral evidence to be sufficient to satisfy the Tribunal that the applicant has the employment background necessary to perform the tasks of the nominated occupation of cook. The Tribunal also noted that 10 months as a part-time cook is well short of the three years that may substitute for a formal qualification suggested as a guide in ANZSCO.
The Tribunal found that the applicant did not satisfy the requirements of cl 457.223(4)(da) of the Regulations.
The Tribunal found that it did not have jurisdiction to consider the application insofar as it related to the applicant’s wife. This is because the applicant’s wife was offshore at the time of the visa application and has never travelled to Australia. Essentially the Tribunal found that where a visa applicant is offshore, only the sponsor or nominator has standing to make a review application in respect of a reviewable decision.
PROCEEDINGS BEFORE THIS COURT
The application to this Court was filed on 22 June 2017. This is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
In his written application, the applicant raised the following four grounds, numbered grounds 1, 2, 3 and 2 (reproduced without alteration):
1. NOMINATIONS.
2. WORK EXPERIENCE
3. In Para.45 of Page no. 9. The tribunal was not satisfied the cookery qualification. In the same time in Para.43 Page no. 9. Tribunal say’s they did search on training.gov.au and recorded future academy is registered and authorised to give certificate III and certificate IV. in commercial cookery which both statements are contradactory each other.
2. Para 11.1 Page no. 3 Rao madhuker as Atf. was approved standard business from 20-11-2013 to 20-11-2016 Para 11.2 Page no. 3: They did received approval nomination application. Nomination expired only because of the time taken to gave the decision by AAT.
As can be seen from the reproduction of the grounds, there are two grounds numbered ground ‘2’. For simplicity, the ground that reads ‘WORK EXPERIENCE’ will be referred to in this judgment as ‘ground 2’ and the final ground raised in the application will be referred to as ‘ground 4’.
Although the applicant’s wife was included in the visa application, she is not a party to this proceeding, and no challenge is made to the Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision insofar as it related to the applicant’s wife.
The matter came before the Court for hearing on 27 October 2021. At the hearing the applicant was self-represented and the Minister was represented by Ms Stephanie Wright.
The applicant was given an opportunity to explain what he believed the Tribunal did wrong. In summary, the applicant submitted that:
(a)he provided his certificate to the Tribunal and worked with the same employer part-time for more than two years;
(b)he provided the completion letter from Future Academy;
(c)he provided a certificate from India which mentions everything he did there;
(d)all the information is in the certificates and letter and can be checked online or even by phone;
(e)he went to college in the morning and evening in India;
(f)the Tribunal did not consider the certificate and did not give him proper time;
(g)he is still in Tasmania working with the sponsor; and
(h)he has subsequently completed a Certificate III and Certificate IV, but understands that the Court cannot have regard to the qualifications after the Tribunal decision.
CONSIDERATION
In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the
High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Grounds 1 and 2
Grounds 1 and 2 merely state the words ‘NOMINATIONS’ and ‘WORK EXPERIENCE’ respectively and cannot meaningfully be understood as articulating any error. They are not considered further in this judgment.
Ground 3
Ground 3 asserts that two of the Tribunal’s findings are inconsistent. Mere inconsistency in findings of the Tribunal does not necessarily amount to jurisdictional error.
Interpreting the applicant’s ground and oral submissions broadly, it may be that he is asserting that the Tribunal’s findings were illogical or irrational. In assessing this ground, I have therefore considered not only whether there is any inconsistency in the relevant findings of the Tribunal, but also whether those findings are illogical or irrational.
The findings said by the applicant to be inconsistent are the findings at [43] and [45] of the Tribunal’s reasons. These paragraphs are set out in their entirety below, with the bold emphasis indicating the findings that the applicant appears to suggest are contradictory:
43.The Tribunal had regard to the internet printouts from the website training.gov.au. The printouts, in the form they were provided, appear to show that Future Academy Pty Ltd was authorised to “assess only” Certificate III in Commercial Cookery (SIT30813) and Certificate IV in Commercial Cookery (SIT40413). The Tribunal did a search of the database on training.gov.au and the website recorded that Future Academy is registered to assess for Certificate III in Commercial Cookery (SIT30813) and Certificate IV in Commercial Cookery (SIT40413).
…
45.The Tribunal has considered the Australian Certificate III and Certificate IV Commercial Cookery qualifications provided. The Tribunal accepts the applicant obtained these qualifications from Future Academy and it was not from coursework, or practical training but based on some form of assessment. The Tribunal accepts that Future Academy was authorised to assess persons for a Certificate III and Certificate IV in Commercial Cookery. The Tribunal was not satisfied based on these certificates that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The period of the course assessment as described in the letter appears to be quite brief having both been assessed and completed within two months. The applicant has stated at different times that the certificates were based on his work experience (see his letter in September 2015) and his prior Diploma in India (stated at the hearing in 2017). The Academy itself has provided a letter that is general in its terms as to the basis on which it assessed the applicant. The Tribunal has placed little weight on the Certificates. The Tribunal is not confident that the certificates can be relied on to demonstrate that the applicant has the skills and knowledge to work in the nominated occupation of cook. The letter from Future Academy does not indicate that it had regard to the applicant’s earlier qualification in a Diploma of Hotel Management in awarding the certificates and therefore the Tribunal is not satisfied that Future Academy did have any regard to the earlier qualification in undertaking the assessment for the Certificates. In relation to the assessment by Future Academy for the Certificates, the letter from Future Academy refers to “competency conversations, assessments and gap training” and “through proper valid evidences provided and competencies validated and assessed which he gained through any formal or informal training and portfolio of work.” The Tribunal considered these statements to be vague and lacking in any specific detail as to the assessment process. Given, the short period of the two courses, and the lack of any substantive detail as to how the applicant was assessed the Tribunal placed little weight on the Certificate III and Certificate IV in Commercial Cookery in determining whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
There is no inconsistency in these findings. The Tribunal was required to assess whether the applicant had the skills, qualifications and employment experience necessary to perform the tasks of his nominated occupation as cook. This is a broader inquiry than simply looking at whether the applicant holds a formal qualification. The Tribunal appropriately had regard to ANZSCO, which suggests that the indicative skill level for cooks was a Certificate III including at least two years of on-the-job training or a Certificate IV. ANZSCO also suggests that at least three years of relevant experience might substitute for the formal qualifications listed and that, in some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.
The Tribunal accepted that Future Academy was authorised to assess people in relation to the Certificate III and Certificate IV qualifications in Commercial Cookery, and that the applicant had obtained these qualifications from Future Academy on the basis of assessment. Notwithstanding these findings, it was open to the Tribunal to give little weight to the Certificate III and Certificate IV in Commercial Cookery from Future Academy for the purpose of assessing whether the applicant had the requisite skills, qualifications and employment experience. The Tribunal gave clear and cogent reasons as to why it placed little weight on the certificates. These reasons included the short duration of the courses, the inconsistent evidence of the applicant in relation to whether the certificates were based on his work experience or his previous qualification obtained in India and the lack of detail in the letter from Future Academy.
There is nothing illogical or irrational in these reasons. A decision might be illogical or irrational if there is only one conclusion open on the evidence and the Tribunal did not reach that conclusion, or if the Tribunal’s decision was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]. In this case, the Tribunal was not required to accept at face value that the issue of the Certificate III and Certificate IV in Commercial Cookery to the applicant meant that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The reasons it gave for placing little weight on the certificates provide a logical basis for its finding.
Ground 3 is not established.
Ground 4
Ground 4 alleges error in the Tribunal’s finding that the applicant did not have an approved nomination. It refers in particular to [11] of the Tribunal’s reasons, which reads (reproduced without alteration):
The Tribunal had regard to the Department’s electronic records and notes they state as follows:
•Rao Madhukar as ATF for Mers Family Trust was approved as a standard business sponsor for the period 20 November 2013 until 20 November 2016.
•That Rao Madhukar as ATF for Mers Family Trust did received approval of a nomination application for the nominated occupation of cook in respect of the applicant on 10 August 2015.
•As at the date of hearing the applicant was not the subject of an approved nomination held by an approved standard business sponsor.
•As at the date of hearing there was no pending sponsorship application or pending nomination application in respect of the applicant.
Clause 457.223(4)(a) in Schedule 2 to the Regulations provided at the relevant time:
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; ...
The complaint made by the applicant appears to be that in the time it took for his Tribunal application to proceed to hearing, the approval of his nomination had ceased. The difficulty for the applicant is that cl 457.223(4)(a) of the Regulations is a criteria that must be satisfied at the time of the Tribunal’s decision. As the Tribunal identified, by the time of the Tribunal hearing, the applicant’s nomination had ceased and he did not have a valid nomination at the time of the Tribunal decision. The Tribunal had no discretion to find that the applicant was entitled to the visa notwithstanding that his nomination had ceased.
Delay will rarely, in and of itself, give rise to jurisdictional error: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 at [5]. In the present case, no jurisdictional error arises as a result of the delay. The delay was long but not excessive, with the review by the Tribunal taking some 19 months from when the application was lodged until the decision was delivered. There is no evidence before the Court to suggest that the applicant made any request to the Tribunal to determine his application prior to his nomination ceasing.
Ground 4 does not establish jurisdictional error.
Other issues raised by applicant’s oral submissions
The applicant’s oral submissions largely indicate that the applicant is expressing disagreement with the Tribunal’s findings and seeking merits review, which is beyond the Court’s jurisdiction. However, interpreted broadly, the grounds may also be alleging either irrationality or illogicality, or failure to have regard to a relevant consideration, in relation to its finding that the applicant did not meet the criteria in cl 457.223(4)(da) of the Regulations.
The Tribunal clearly had regard to the applicant’s various qualifications and experience. This can be seen from the discussion from [24]-[34] of the Tribunal decision, where the Tribunal discussed the applicant’s study history in India, from [35]-[45], where the Tribunal discussed the applicant’s study history in Australia and from [46]-[50], where the Tribunal discussed the applicant’s employment history. It is also clear that the Tribunal had regard to the letter from Future Academy, which was referred to by the applicant in his oral submissions to the Court, as it expressly referred to and quoted from that letter in its reasons at [45], extracted above. The Tribunal has not failed to have regard to any relevant consideration, and it is clear from the reasons given by the Tribunal that it carefully considered the content of each of the documents the applicant provided in support of his application.
I have addressed above why there is no illogicality or irrationality in the Tribunal placing no weight on the applicant’s Certificate III and Certificate IV in Commercial Cookery obtained in Australia. Given the matters raised by the applicant in his oral submissions, I have also considered whether there is any illogicality or irrationality in the Tribunal giving no weight to the applicant’s Diploma of Hotel Management obtained in India, and in finding that his 10 months of part-time employment was not sufficient to meet the criteria in cl 457.223(4)(da) of the Regulations.
In relation to the Diploma of Hotel Management, the Tribunal has given clear reasons at
[28]-[34] of its reasons for decision for giving no weight to that qualification. Those reasons are summarised at [18] of this judgment. The Tribunal’s finding in this regard was open to it on the evidence before it.
The Tribunal has also given clear reasons, which were open to it on the evidence before it, for finding that the 10 months part-time work experience that the applicant had undertaken at the time of the Tribunal decision was not sufficient to show that he had the necessary skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
Another decision-maker may have come to a different view of the evidence, but this is a matter about which reasonable minds may differ. There is no illogicality or irrationality in the Tribunal’s findings, or its conclusion that it was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of his nominated occupation of cook.
In his oral submissions, the applicant also indicated that the Tribunal did not give him ‘proper’ time. This could be interpreted broadly as an allegation that the Tribunal denied the applicant procedural fairness. The applicant has not elaborated on this, but there are two possible ways in which the applicant might be asserting that the Tribunal’s failure to give him more time might amount to jurisdictional error.
The first of these relates to the timing of the hearing and a request by the applicant for an adjournment of the hearing. The applicant’s hearing was originally scheduled to take place on 8 December 2016. On 30 November 2016 the applicant wrote an email to the Tribunal in the following terms:
Dear Sir/Madam,
I would like to apply for two weeks’ extension for my hearing. I was in India for eyes treatment for six weeks from 17th October 2016 to 28th November 2016. Please allow me to have some time to prepare all of my documents and application for hearing. I have been attaching all the evidence including the medical certificate which I have submitted to my employer for medical leave.
A medical certificate from a doctor in India was attached to the email.
On 5 December 2016 the Tribunal agreed to the applicant’s request and relisted the hearing on 13 February 2017. It is readily apparent that although the applicant only asked for an extension of two weeks, the Tribunal gave him over two months. Given that the Tribunal gave the applicant more than the extension of time that he requested, he has not been denied procedural fairness in any way based on the timing of the hearing.
The second way in which the applicant might be asserting that the Tribunal did not give him enough time relates to the time given to the applicant to respond to clear particulars of information put to him under s 359AA of the Migration Act that would be the reason, or part of the reason, for affirming the decision under review. If the Tribunal gives clear particulars to an applicant at a hearing, the Tribunal must, pursuant to s 359AA(1)(b):
(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.
At [12] of its reasons, the Tribunal outlined the process that it followed under s 359AA in relation to information that the approval of a nomination application would have expired on 10 August 2016, the applicant was not the subject of an approved nomination held by an approved standard business sponsor at the date of the hearing, and that there was no pending sponsorship application or nomination application in respect of the applicant at the date of the hearing. The applicant indicated to the Tribunal that he did not need further time to respond and explained to the Tribunal that the Department had told him that if his sponsor was not going to sponsor anyone else he did not need to renew the nomination until the review application was decided.
The applicant then asked the Tribunal to give him more time so that he could apply to the Department for a new nomination. The Tribunal ultimately gave the applicant a seven day period within which to provide further evidence. The Tribunal had regard to the evidence provided by the applicant.
The Tribunal also engaged the process in s 359AA of the Migration Act in relation to information from Provider Registration and International Student Management System (PRISMS) that Future Academy is not registered to deliver Certificate III or Certificate IV Commercial Cookery courses, there is no course registered on PRISMS with the same identification number as that listed on the applicant’s Certificate III, and Certificate III Commercial Cookery is not one of the courses which Future Academy is registered to provide to overseas students. The Department had previously invited the applicant to comment on this information under s 57 of the Migration Act.
The Tribunal’s reasons at [44] indicate that, after inviting the applicant to comment on this information, the applicant said that he wished to proceed to give evidence and did not need time to consider his response. He told the Tribunal that Future Academy may not be allowed to provide the course but he was awarded the certificates under recognised prior learning. The Tribunal ultimately accepted that the applicant had been awarded the certificates based on some form of assessment, rather than coursework.
It is clear that where the Tribunal invited the applicant to comment on information under s 359AA of the Migration Act, the applicant was informed that he could seek further time to respond and, where he did so, the Tribunal granted him further time. There is nothing before the Court to suggest that the Tribunal did not give the applicant an appropriate amount of time to respond to information put to him under s 359AA.
The matters raised by the applicant in his oral submissions to the Court do not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. Accordingly, the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 December 2021
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