Buthpitilekamlage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 158
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Buthpitilekamlage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 158
File number(s): PEG 199 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2022 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to invite the applicants to attend a hearing – whether the Tribunal should have delayed its decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, 360, 476
Migration Regulations 1994 (Cth), cll 187.233 and 197.311 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 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
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105.
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 9 March 2022 Place: Perth Counsel for the 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 199 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DILUKSHI RAVIHARI BUTHPITIYA BUTHPITILEKAMLAGE
First Applicant
IROSH UDARA RANATHUNGA RANATHUNGA ARACHCHIGE
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:
23 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:
BACKGROUND
The applicants are citizens of Sri Lanka (Court Book (“CB”) 2 and 4). The first applicant appears to have arrived in Australia in November 2010 as the holder of a Skilled (Provisional) (Class VC) (Subclass 485) (Temporary Graduate) (CB 40 & 42). Her husband (the second applicant) appears to have arrived in April 2016 as a dependent on the first applicant’s visa (CB 22).
On 8 December 2016, the applicants applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (the “visa”) (CB 1-15). The first applicant was the primary applicant. She was nominated for the position of “Customer Service Manager” (CB 7) with My Tien Pham Thi and Robert James Forbes ATF Pham-Forbes Family Trust (the “sponsor”) (CB 53). The second applicant was identified as a member of the first applicant’s family unit (CB 4).
On 13 July 2018, a delegate of the first respondent (the “Minister”) refused the sponsor’s application for approval of the nomination of the position (CB 63).
The Department of Home Affairs (the “Department”) wrote to the applicants and invited them to comment on the fact that the sponsor’s nomination application had been refused (CB 53-56).
The applicants did not respond to that invitation to comment.
On 21 September 2018, a delegate of the Minister determined that, as the nomination application had been refused, the first applicant did not satisfy cl 187.233(3) of Schedule 2 of the Migration Regulations 1994 (the “Regulations”) as she was not the subject of an approved nomination (CB 62-66). The second applicant thus failed to satisfy cl 187.311 of Schedule 2 of the Regulations.
On 1 October 2018, the applicants applied for review of the delegate’s decision to the Tribunal (CB 67-68). They were represented by a registered migration agent.
The sponsor also sought review of the delegate’s decision to refuse its nomination application.
On 7 June 2021, the first applicant attended a combined Tribunal hearing with the sponsor. She was assisted by her migration agent (CB 86-91).
On 4 August 2021, the Tribunal affirmed the decision to refuse the sponsor’s nomination application (CB 104 at [12]).
The same day, the Tribunal wrote to the applicants (pursuant to s 359A of the Act) and sought their comments on or response to the Tribunal’s decision in relation to the sponsor’s review application (CB 92-95).
The invitation asked the applicants to comment on the following information (CB 94):
•The application for approval of the nominated position made by My Tien Pham Thi and Robert James Forbes ATF Pham-Forbes Family (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator's application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
A response was required from the applicants by 18 August 2021.
On 17 August 2021, the applicants provided a submission to the Tribunal (through their agent) which acknowledged that the first applicant was not the subject of an approved nomination and that the visa could not be granted. That submissions also appears to ask the Tribunal to extend the applicants’ bridging visas on compassionate grounds (CB 96-99).
On 7 September 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 103-106).
On 24 September 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 Migration Act 1958 (Cth) (the “Act”). To succeed, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is four pages long and spans 24 paragraphs. It also includes one page containing extracts of relevant legislative provisions.
The Tribunal first identified the type of visas the applicants had applied for and the relevant visa subclass. The Tribunal also identified the relevant criteria for the grant of the visas
(at [1]-[3]).
The Tribunal confirmed that the first applicant had sought the visa via the Direct Entry scheme and had been nominated for the position of Customer Service Manager (at [4]). The Tribunal then summarised the delegate’s decision (at [5]).
The Tribunal then stated:
6.The applicant appeared before the Tribunal on [sic] & June 2021 to give evidence and present arguments in a hearing combined with the hearing of an application to review the decision to refuse the approval of the nomination of the position to which the application relates. Mr. Forbes gave evidence on behalf of the nominator.
The Tribunal noted that the applicants were represented by a registered migration agent in relation to the review (at [7]).
The Tribunal explained that:
10.Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
The Tribunal noted that the visa also requires that a nomination be approved (and not be subsequently withdrawn) (at [11]).
The Tribunal then stated:
12.This Tribunal made a decision on 4 August 2021 affirming the departmental decision to refuse the nomination.
13.The applicants were advised of the refusal and advised that it would be the reason or part of the reason to affirm the decision in this application.
The Tribunal explained that the applicants were invited to comment on or respond to information by 18 August 2021 (at [14]) and that, on 17 August 2021, correspondence was received from the applicants’ representative “noting that the nomination had been refused and that their visa application [could not] therefore be approved” (at [15]).
The Tribunal also explained that the applicants “sought an extension of their bridging visa under compassionate and humanitarian grounds” (at [16]) but noted that the Tribunal does not have jurisdiction to do so (at [17]).
The Tribunal continued:
18.In the final paragraph of the correspondence the applicants ask that the Tribunal delay its decision “so that they could organise to travel to and from home country when it is safe for them to do so.”
The Tribunal explained that it was not prepared to delay making a decision (at [19]), noting that the nomination of the first applicant’s position had not been approved (at [20]) and that, as such, cl 187.233 of Schedule 2 of the Regulations had not been met (at [21]).
The Tribunal also noted that the first applicant had not made any claims in relation to any other visa and, as the requirements of the visa in the Direct Entry stream had not been met, the decision must be affirmed (at [22]). Further, as the first applicant did not meet the primary criteria, the Tribunal found that the second applicant did not meet cl 187.311 of Schedule 2 of the Regulations (at [23]) and could not be granted a visa.
The Tribunal affirmed the decision refusing to grant the applicants the visas (at [24]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 24 September 2021 contains one “ground of review”, as follows:
1.I am not satisfied with the decision of the Tribunal because there was no hearing conducted by the Administrative Appeals Tribunal for the visa applicants.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 24 September 2021, a Court Book numbering 106 pages (marked as Exhibit 1) and the Minister’s written submissions filed on 18 February 2022.
The applicants appeared before this Court on 9 March 2022 without legal representation. The first applicant indicated that she would speak on her own behalf and on behalf of her husband. The Court confirmed that the first applicant had received 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 she 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].
To assist the applicants, the Court explained to the first applicant 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].
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.
Unfortunately, in response, the first second applicant did not comment on her ground of review or address any issues that relate to a jurisdictional error on the part of the Tribunal.
CONSIDERATION
Ground 1
Ground 1 states:
1.I am not satisfied with the decision of the Tribunal because there was no hearing conducted by the Administrative Appeals Tribunal for the visa applicants.
The applicants claim that the Tribunal erred by failing to invite them to attend a hearing.
This ground fails on a factual level.
The Tribunal is required to invite an applicant (or applicants) to appear before it to give evidence and present arguments relating to the issues arising from the decision under the review: s 360(1) of the Act; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”).
The Tribunal complied with those requirements in this matter.
On 5 May 2021, the Tribunal invited the applicants (through their registered migration agent) to attend a combined hearing before it (via video link) on 7 June 2021 (CB 76-80).
The applicants attended that combined hearing on 7 June 2021 via audio link and were given an opportunity to present evidence and argument. The applicants’ migration agent and the first applicant’s sponsor also attended the hearing (CB 86-91). Evidence was given at that hearing on behalf of the nominator by Mr Forbes (CB 104).
The Tribunal subsequently made a decision (on 4 August 2021) affirming the Department’s decision to refuse the nomination (CB 104).
Following the decision regarding the nomination, also on 4 August 2021, the applicants were invited to comment on or respond to the following information (CB 92-95):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The application for approval of the nominated position made by My Tien Pham Thi and Robert James Forbes ATF Pham-Forbes Family (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator's application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
The applicants (through their registered migration agent) responded to that invitation (CB 96-99). They acknowledged that the nomination had been refused and stated that they understood “that the visa application cannot be approved without approved nomination and in this matter, the nomination has been refused” (CB 97).
The applicants were thus on notice of the determinative issue (the lack of an approved nomination) as it was the same issue dispositive to the application before the delegate: SZBEL. Further, the applicants were also placed on notice, on two occasions, that this was an issue (at the hearing of the matter and in the invitation to comment). The Court is satisfied that the Tribunal “put” to the applicants all of the information relied upon in making its decision as it was required to do: s 359A of the Act.
The Tribunal was not required to invite the applicants to attend any further hearing and there is no evidence before the Court to suggest that the applicants sought a further hearing or an adjournment of the hearing on 7 June 2021.
While it is true that the applicants did ask the Tribunal to “delay” its decision, this request was made simply so that the applicants could get their affairs in order during what was for them a challenging period. While a differently constituted Tribunal might have accommodated this request, in circumstances where there was no evidence that a nomination was forthcoming and where the applicants themselves conceded as much, it cannot be said that the Tribunal acted unreasonably in this regard.
No error arises in relation to ground 1.
Incorrect or incomplete date
The Court notes that the Tribunal has referenced an incorrect (or incomplete) date when referencing the Tribunal hearing at [6] in its reasons as follows (emphasis added):
6.The applicant appeared before the Tribunal on & June 2021 to give evidence and present arguments in a hearing combined with the hearing of an application to review the decision to refuse the approval of the nomination of the position to which the application relates. Mr. Forbes gave evidence on behalf of the nominator.
The Court considers this to be a simple typographical error (with “7” and “&” appearing on the same key on the keyboard). Whilst an unfortunate oversight, this error does not point to jurisdictional error on the part of the Tribunal.
No error arises in this regard.
Futility
As this Court has explained in other similar matters, visas of this sort are, in effect, “linked” to the sponsor and to the approval of the relevant nomination application. In the circumstances of this matter, even if there was a jurisdictional error, it would be futile for the Court to remit the matter to the Tribunal: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105. The Tribunal would, again, have no choice but to find that the first applicant does not meet cl 187.233 of the Regulations as she is not the subject of an approved nomination.
Accordingly, any decision to remit the matter would be futile.
CONCLUSION
The judicial review application has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise satisfied that no error arises and remittal of the matter would, in any event, be futile.
The application is, accordingly, dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2022
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