Betts v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 757
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Betts v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 757
File number(s): PEG 450 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 15 April 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Temporary Work (Skilled) (subclass 457) visa – alleged third party fraud on the Tribunal – whether fraud established – whether an approved nomination is in existence – whether applicant has standing – whether jurisdictional error
PRACTICE AND PROCEDURE – Extension of time –where Tribunal found no jurisdiction – whether applicant has standing
Legislation: Migration Act1958 (Cth) Pt 7 Div 4, ss 347, 474, 476, 477, 478, 479, 486C
Migration Regulations 1994 (Cth) reg 4.10, Sch 2 cl. 457.223
Cases cited: BLH15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1198; (2016) 310 FLR 429
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; [1938] ALR 334
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jiang v Minister for Immigration & Anor [2007] FMCA 215
Jiang v Minister for Immigration & Citizenship [2007] FCA 907
Minister forImmigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
SZHVM v Minister for Immigration & Citizenship [2008] FCA 600; (2008) 170 FCR 211
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158
T&K McKrill Holdings Pty v Minister for Immigration and Border Protection [2017] FCCA 2370; (2017) 325 FLR 239
Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
Number of paragraphs: 33 Date of last submission/s: 9 April 2021 Date of hearing: 9 April 2021 Place: Perth For the Applicant: The Applicant appeared in person Counsel for the First Applicant: E. Tattersall For the Second Respondent: Submitting appearance, save as to costs Solicitor for the First Respondent: Sparke Helmore ORDERS
PEG 450 of 2019 BETWEEN: DANIEL ANTONY BETTS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The Applicant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file ground 1 of the originating application filed 18 November 2019 be dismissed.
2.The originating application filed 18 November 2019 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 18 November 2019 the Applicant, Mr Daniel Betts, (“Mr Betts”), filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act1958 (Cth) (“Migration Act”) in relation to two decisions of the Administrative Appeals Tribunal (“Tribunal”) made on 2 August and 16 October 2019 respectively (the “Tribunal Nomination Decision” and the “Tribunal Visa Decision” respectively).
The Tribunal Nomination Decision determined that the Tribunal had no jurisdiction to determine an application for review of a decision of a delegate (“Delegate’s Nomination Decision” and “Delegate” respectively) of the First Respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse a nomination application in respect of an application by Mr Betts for a Temporary Work (Skilled) (subclass 457) visa (“Temporary Work Visa”).
The Tribunal Visa Decision affirmed a decision of a different Delegate (“Delegate’s Visa Decision”) of the Minister, affirming the Delegate’s Visa Decision not to grant Mr Betts a Temporary Work Visa.
The Judicial Review Application contains a proposed ground 1, set out at [14] below, and ground 2, set out at [20] below, and an application for an extension of time under s 477 of the Migration Act, set out at [9] below, in which to file the proposed ground 1 of the Judicial Review Application (“Extension of Time Application”).
JUDICAL REVIEW APPLICATION
The relevant background to the Judicial Review Application is as follows:
(a)on 21 October 2015 Mr Betts applied for the Temporary Work Visa: CB 1-11. A nomination application was made in support of the Temporary Work Visa application (“First Nomination Application”) by Vision Carpentry & Joinery Pty Ltd (“Vision”);
(b)on 9 November 2015 Mr Betts appointed a migration agent (“First Agent”) to assist him with his Temporary Work Visa application: CB 18-20;
(c)on 8 September 2016 the Delegate refused to grant the Temporary Work Visa. The Delegate was not satisfied that the position associated with the nominated occupation was genuine and found that the position that had been created for Mr Betts failed to satisfy cl 457.223(4)(d) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 94-99;
(d)on 27 September 2016 Mr Betts, with the assistance of the First Agent, sought review of the Delegate’s Visa Decision in the Tribunal: CB 100-101;
(e)on 27 February 2018 a separate company, Focus Carpentry & Joinery Pty Ltd (“Focus”), lodged a fresh nomination application (“Focus Nomination Application”) to sponsor Mr Betts in his Temporary Work Visa application: CB 108-112;
(f)on 18 May 2018 the Tribunal (at CB 115) wrote to the First Agent advising that:
On 18 April 2018 the Temporary Business Entry (Class UC)(subclass 457) visa stream was abolished. As such, nominations lodged on or after the 18 March 2018 can only be used for a subclass 482 visa and cannot be linked to the existing subclass 457 review applications
and the First Agent responded stating that Focus’s nomination as a standard business sponsor was approved: CB 106;
(g)on 2 November 2018 further correspondence was sent from the Tribunal to the First Agent. It stated that the Tribunal had received advice that the First Agent’s registration with the Office of the Migration Agents Registration Authority (“OMARA”) had lapsed on 29 July 2018. Similar correspondence was sent to Mr Betts: CB 116-119;
(h)Focus was approved as a standard business sponsor on 15 May 2018, however, in the Delegate’s Nomination Decision on 3 April 2019 Focus’s Nomination Application was refused: CB 108-112, 125. On 3 May 2019 the Tribunal invited Mr Betts to comment on or respond to information that Focus’s Nomination Application had been refused: CB 124-126;
(i)on 8 May 2019 a new migration agent (“Second Agent”) was appointed to represent Mr Betts: CB 127-129. On 13 May 2019, the Second Agent wrote to the Tribunal requesting an extension of time to respond to the invitation sent 3 May 2019: CB 130, stating that:
There are a number of identified issues with this file; in the first instance, the applicant was represented by Migration Agent Michael Culleton. Mr Culleton has left Australia and has not renewed his registration. Unfortunately he is not responding to his clients requests for information or support either. The applicant does not know where his file is being stored and does not have access to it. One might presume it is in Ireland with Mr Culleton.
(j)on 17 May 2019 the Tribunal invited Mr Betts to attend a Tribunal hearing on 17 June 2020: CB 131-134. The Second Agent sent submissions to the Tribunal on 7 June 2019: CB 135-137. On 11 June 2019, the Tribunal notified the Second Agent that the Tribunal hearing was postponed and requested from the Second Agent information relating to a purported challenge to the validity of the refusal of Focus’s Nomination Application: CB 139-143;
(k)on 17 June 2019 the Tribunal invited Mr Betts to attend a Tribunal hearing on 4 July 2019: CB 144-147;
(l)on 28 June 2019 Focus sought review of the Delegate’s Nomination Decision: CB 150-151;
(m)Mr Betts attended the Tribunal hearing on 4 July 2019 with the Second Agent: CB 157-159;
(n)on 2 August 2019 the Tribunal, differently constituted, in the Tribunal Nomination Decision found that it did not have the jurisdiction to review the Delegate’s Nomination Decision because the application for review of the Delegate’s Nomination Decision was lodged outside the time limit prescribed by the Migration Regulations: Affidavit of Hamish William Glenister affirmed 18 November 2019 at [2]-[3] and Annexure A;
(o)on 18 September 2019 the Tribunal invited Mr Betts to comment on the following particulars of information: CB 169-170:
On 3 April 2019, a nomination application lodged by Focus Carpentry & Joinery Pty Ltd in relation to you was refused by the Department of Home Affairs. On 28 June 2019, Focus Carpentry & Joinery Pty Ltd applied to the Tribunal for a review of the Department's refusal decision. However, on 2 August 2019, the Tribunal (differently constituted) found it had no jurisdiction in relation to the nomination application because it was lodged out of time. Consequently, the decision made by the Department on 3 April 2019, to refuse the nomination stands.
(p)on 16 October 2019 the Tribunal made the Tribunal Visa Decision, affirming the Delegate’s Visa Decision: CB 182-187.
Jurisdictional error required
Before dealing with the Extension of Time Application and the ground, and proposed ground of the Judicial Review Application, the Court notes that in order to make out either the ground or proposed ground of the Judicial Review Application jurisdictional error in a relevant Tribunal decision must be established, and if established that decision may be set aside by this Court: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Fraud upon the Tribunal which affects its decision-making process may constitute jurisdictional error: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”) at [49]-[51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister forImmigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
Submissions
Mr Betts did not file written submissions. His oral submissions at hearing asserted fraud on the part of the First Agent.
The Minister’s submissions contended that:
(a)time ought not to be extended in relation to proposed ground 1, and that, in any event, Mr Betts did not have standing to challenge the Tribunal Nomination Decision; and
(b)there was no fraud stultifying the Tribunal’s decision-making process.
Proposed ground 1 and the Extension of Time Application
The grounds for the Extension of Time Application are as follows:
1.The extension of time is only required in relation to the decision of the Tribunal made on 2 August 2019 (nomination decision).
2.The Applicant did not know he had standing to seek review of the nomination decision until receiving legal advice on 15 November 2019.
3.The delay in seeking review of the nomination decision will not prejudice the Respondents.
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
(a)the length or extent of delay;
(b)the reason for the delay;
(c)any prejudice to the opposing party; and
(d)the merits of the proposed application,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J.
The length of the delay is very considerable: at 108 days it is more than three times the limitation period itself. The reason for the delay is said to be a lack of awareness by Mr Betts about his standing to review the Tribunal Nomination Decision until he received legal advice well after the limitation period had expired. Neither Mr Betts nor the lawyer who acted for him until filing a Notice of Withdrawal of Lawyer on 22 November 2020 sought to file affidavits explaining why it took so long for Mr Betts to seek or be given that legal advice. The considerable length of the delay, and the lack of detail in the explanation for that delay are factors which weigh against an extension of time.
The Minister did not assert any particular prejudice if the extension of time was granted. The Court notes, however, that an absence of prejudice is insufficient in itself to justify extending time: Hunter Valley Developments at 349 per Wilcox J. Prejudice is therefore a neutral factor in the consideration of the grant of an extension of time.
In determining whether the merits of proposed ground 1 are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that proposed ground 1 will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time in relation to a proposed ground which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the proposed ground 1 is arguable, reasonably arguable, or has reasonable prospects of success the Court is only required to deal with it, and to examine it, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of the proposed ground 1, the issue being not whether Mr Betts would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the proposed ground, reveals that it might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ).
Proposed ground 1 of the Judicial Review Application is as follows:
1.The Second Respondent (Tribunal) constructively failed to exercise jurisdiction due to the fraud of a third party in finding that it did not have jurisdiction to review the nomination application made be Focus Carpentry and Joinery Pty Ltd (Focus).
Particulars
i.Focus was represented before the tribunal by a migration agent, Mr Michael Culleton.
ii.Mr Culleton’s registration as a migration agent ended before November 2018.
iii.Focus were not aware that Mr Culleton’s registration had lapsed.
iv.On 3 April 2019, the First Respondent made a decision to refuse Focus’s nomination application.
v.The First Respondent sent notification of the decision to Mr Culleton.
vi.Mr Culleton did not inform Focus of the decision.
vii.Focus only became aware of the decision on or after 7 June 2019.
Proposed ground 1 concerns the Tribunal Nomination Decision. On 28 June 2019 Focus lodged an application for review with the Tribunal seeking review of the Delegate’s Nomination Decision. Pursuant to s 347(1)(b) of the Migration Act and reg 4.10 of the Migration Regulations the prescribed period in which an application for review of the Delegate’s Nomination Decision had to be made was within 21 days after Focus was notified of the Delegate’s Nomination Decision. The Tribunal found that Focus was taken to have been notified of the Delegate’s Nomination Decision on 3 April 2019, and therefore the prescribed period to apply to the Tribunal for review ceased on 24 April 2019. The Tribunal found that it did not have jurisdiction to review the Delegate’s Nomination Decision because the review application was filed outside the prescribed period.
In relation to ss 478, 479 and 486C of the Migration Act the Court observes that:
(a)section 478 of the Migration Act mandates that an application under s 477 of the Migration Act to the Court concerning a reviewable decision of the Tribunal under Part 5 of the Migration Act can only be relevantly made by the Minister and the applicant for review before the Tribunal, that relevantly being Focus;
(b)section 479 of the Migration Act stipulates that the parties in this Court to a review of reviewable decision by the Tribunal under Part 5 of the Migration Act can relevantly only be the Minister and the applicant in the review by the Tribunal, that again being Focus; and
(c)section 486C of the Migration Act mandates that the only persons who can commence or continue proceedings in this Court in connection with visas are the parties to a review mentioned in s 479 of the Migration Act, being relevantly in this case again the Minister and the applicant in the review by the Tribunal, namely Focus.
The effect of the above legislative provisions is to express a manifest legislative intention that only a review applicant (in this case, in relation to the Tribunal Nomination Decision, that being Focus) has standing to bring an application under s 477 of the Migration Act or institute proceedings in this Court: T&K McKrill Holdings Pty v Minister for Immigration and Border Protection [2017] FCCA 2370; (2017) 325 FLR 239 (“McKrill Holdings”) at [29]-[31] per Judge Dowdy. It follows that Mr Betts does not have standing to challenge the Tribunal Nomination Decision.
Whilst Focus did initiate judicial review proceedings in relation to the Tribunal Nomination Decision those proceedings (PEG500/2019) were discontinued on 25 August 2020, and it is not open to Mr Betts, who lacks standing, to continue challenging the Tribunal Nomination Decision.
It follows from Mr Betts’ lack of standing that the Extension of Time Application to seek review of the Tribunal Nomination Decision must therefore be dismissed as proposed ground 1 has little to no likelihood of success at hearing. In any event, Mr Betts lack of standing would be sufficient for the Court to make a finding that proposed ground 1 of the Judicial Review Application could not be made out and could not establish jurisdictional error in the Tribunal Nomination Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2.The Second Respondent (Tribunal) constructively failed to exercise jurisdiction due to the fraud of a third party in affirming the decision of the First Respondent to refuse to grant the Applicant a visa.
Particulars
i.A mandatory criterion of the grant of the visa was that there be an approved business nomination.
ii.The business nomination had been previously refused by the First Respondent.
iii.The Tribunal, differently constituted, had determined that it did not have jurisdiction to review the decision of the First Respondent to refuse the business nomination.
iv.The Tribunal, differently constituted, in making the decision, constructively failed to exercise jurisdiction due to the fraud of a third party.
v.That same fraud vitiated the decision of the Tribunal to refuse to grant the Applicant a visa.
Ground 2 concerns the Tribunal Visa Decision. The Tribunal found that Mr Betts was the subject of a nomination which was approved on 17 December 2015 and which expired on 17 December 2016. The Tribunal found that the nomination application, lodged in February 2018 by Focus in relation to Mr Betts, was refused on 3 April 2019.
There was no evidence before the Tribunal that Mr Betts was the subject of an approved nomination, sponsored by Vision, Focus or any other standard business sponsor, and on that basis the Tribunal was not satisfied that Mr Betts was the subject of an approved nomination of an occupation by a standard business sponsor that had not ceased. Therefore, the Tribunal held that Mr Betts did not satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations: CB 189-194, [26]-[28].
Clause 457.223(4)(a) of Schedule 2 to the Migration Regulations requires that:
(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; …
Mr Betts plainly did not, and still does not, meet this requirement.
Jurisdictional error will occur on account of fraud by a third party if the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The imperative statutory functions are those governing the procedural fairness obligations in Pt 7, Div 4 of the Migration Act, and where such function is vitiated the Tribunal is found to have not made a decision at all: SZFDE at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
In contrast, where a migration agent has acted with negligence, inadvertence or incompetence, or simply failed to inform, that is not considered to be a fraud on the Tribunal, nor jurisdictional error: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [30] and [33] per Tamberlin, Finn and Dowsett JJ. The level of satisfaction required in cases where fraud is alleged is that which was required in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; [1938] ALR 334, CLR at 363-368 per Dixon J: SZLIX at [33] per Tamberlin, Finn and Dowsett JJ; SZHVM v Minister for Immigration & Citizenship [2008] FCA 600; (2008) 170 FCR 211 at [58] per Middleton J. In BLH15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1198; (2016) 310 FLR 429 (“BLH15”) at [46]-[47] per Judge Driver this Court observed as follows:
In SZFDE, it will be recalled that at [41], the Court endorsed the statement of French J (as his Honour then was) in the Full Federal Court that what was required to make out a case of fraud was proof of “what was said that was fraudulent, how it was fraudulent, and how it was acted upon”.
That the Briginshaw standard applies to the matters that must be proved to make out a case of fraud has generally been accepted. So for example, in Minister for Immigration v SZLIX, [(2008) 245 ALR 501; [2008] FCAFC 17] the Full Federal Court, dismissing a claim that the conduct of the agent in that case constituted “fraud on the Tribunal”, said in a frequently cited passage [at [33]]:
The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. (emphasis added)
To the extent that Mr Betts asserts that the Tribunal Visa Decision was vitiated by the fraudulent conduct of a third party, namely the First Agent, the Court observes that:
(a)the First Agent’s impugned conduct was no more than a failure to refer appropriate correspondence to Mr Betts. That conduct rises no higher than mere negligence, incompetence or inadvertence, and does not establish jurisdictional error: SZLIX at [30]-[33] per Tamberlin, Finn and Dowsett JJ;
(b)the First Agent’s actions had no effect on the Tribunal’s consideration of Mr Betts’ review: the issue of the First Agent’s registration as a migration agent lapsing was brought to Mr Betts attention: CB 119, and Mr Betts eventually engaged the Second Agent to represent him: CB 129. The Second Agent then filed evidence and submissions on behalf of Mr Betts and attended the Tribunal hearing with Mr Betts;
(c)the First Agent’s conduct was unrelated to the determinative issue before the Tribunal, namely, whether Mr Betts was the subject of an approved nomination. It was not in dispute before the Tribunal that Mr Betts was not the subject of an approved nomination.
In the above circumstances, the First Agent’s conduct plainly did not stultify the Tribunal’s decision-making process, and because Mr Betts was not the subject of an approved nomination it was seemingly inevitable that the Tribunal would affirm the Delegate’s Visa Decision. Mr Betts has, therefore, failed to establish a fraud on the Tribunal by a third party, and in particular the First Agent.
It follows that ground 2 is not made out and does not establish jurisdictional error in the Tribunal Nomination Decision.
Futility
Even if the Tribunal Visa Decision were to be affected by jurisdictional error (which it is not), the Court would have refused prerogative relief in the exercise of its discretion because there can be no difference to Mr Betts between his current position and the position he would be in following the grant of any relief because the Tribunal’s affirmation of the Delegate’s Visa Decision must inevitably remain, that is, it could not have had any impact on the outcome of the proceedings, in circumstances where, there being no nomination, there was no other finding open to the Tribunal: Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 at [21] per Judge Lucev. This can be expressed in a number of different ways, for example:
(a)“no useful result could ensue”: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or
(b)it would “lack utility”: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or
(c)it would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J,
but the end result is the same: prerogative relief would be refused.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)the Extension of Time Application must be dismissed; and
(b)otherwise, the Judicial Review Application must be dismissed.
There will be orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 April 2021
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