Catarcione v Minister for Immigration

[2020] FCCA 2831

FEDERAL CIRCUIT COURT OF AUSTRALIA

CATARCIONE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2831

Catchwords:
MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where there was no approved nomination – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 361, 476

Migration Regulations 1994 (Cth), cl.187.223 of sch.2

Cases cited:

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

Craig v State of South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
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
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

First Applicant: GUSTAVO HENRIQUE CATARCIONE

Second Applicant: THAMI CRISTINA DA SILVA CATARCIONE

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 92 of 2020

Judgment of: Judge Kendall

Hearing date: 14 October 2020

Date of Last Submission: 14 October 2020

Delivered at: Perth

Delivered on: 19 October 2020

REPRESENTATION

Applicants: In person

Counsel for the First Respondent: Ms E Tattersall

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 92 of 2020

GUSTAVO HENRIQUE CATARCIONE

First Applicant

THAMI CRISTINADA SILVA CATARCIONE

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of Brazil. The first applicant arrived in Australia on 27 March 2011 (Court Book (“CB”) 34 and 54) on a student visa. The applicants are husband and wife respectively.

2. On 4 October 2016, the first applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 1-16). The second applicant was included as a member of the family unit. The first applicant was nominated for the position of “Roof Plumber” by the Trustee for the Davey Family Trust (the “sponsor”).

3. On 8 May 2017, the then Department of Immigration & Border Protection invited the applicants to comment on information it considered unfavourable to their application (CB 74-77). The information related to the fact that the sponsor’s nomination application had been refused.  It was indicated that this was adverse to the applicants’ application. No response to the information was received.

4. On 9 June 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 78-86). The delegate found that the first applicant did not meet cl.187.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the first applicant was not the subject of an “approved nomination”. As the first applicant did not meet the primary criteria, the second applicant was unable to meet the visa criterion.

5. On 14 June 2017, the applicants filed an application for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 87-88).

6. On 9 January 2020, the Tribunal sent the applicants an invitation to comment on or respond to information which it considered could be a reason for affirming the decision on review (CB 113-114). The invitation stated:

   The particulars of the information are:

   • Your visa application was refused by the Department on 9 June 2017 because the appointment, to which the visa application relates, has not been approved by the Department.

   • The decision not to approve nomination by The Trustee for the Davey Family Trust was made by the Department on 8 May 2017.

   • The Trustee for the Davey Family Trust applied for review of this decision at this Tribunal on 27 May 2017. On 16 December 2019, the Tribunal affirmed the primary decision related to the nomination application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 187 visa. This is because one of the criteria contained within subclass 187, namely clause 187.223(3) requires that the Minister has approved the nomination.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 187.223.

7. On 21 January 2020, the applicants responded to the invitation to comment. The applicants took issue with the Tribunal’s decision made in relation to the sponsor, identified factors that the Tribunal did not consider in relation to that application and referred to further “personal factors” that the applicants said the Tribunal should consider (CB 116-127).

8. The applicants attended a hearing on 27 February 2020 (CB 140-142). The Tribunal made an oral decision affirming the delegate’s decision at the conclusion of that hearing (CB 145).

9. On 20 May 2020, the Tribunal produced a written record of decision (Affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 28 May 2020).

Tribunal’s Decision

1. The Tribunal’s written statement of decision is three pages long and spans 10 paragraphs.

2. The Tribunal began by outlining the type of visa sought. It then referred to the delegate’s finding and set out the information that was put to the applicants pursuant to s.359A of the Migration Act 1958 (Cth) (the “Act”) in the invitation dated 9 January 2020 (at [1]-[4]).

3. The Tribunal noted that the applicants had responded to the letter on 21 January 2020 and that the applicants had attended a hearing on

   
   

   27 February 2020 (after which an oral decision was delivered) (at [5]-[6]).

4. The Tribunal continued as follows:

   7. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 187.233 lodged by Trustee for Davey Family Trust Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal's decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 187.233(3) at the time of its decision.

   8. The first named applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary residence transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary residence transition stream have not been met, the decision under review must be affirmed.

   9. The Tribunal must also affirm the decision not to grant the second applicant a subclass 187 visa as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that the secondary applicant meets the primary visa criteria for this subclass in her own right.

5. The Tribunal affirmed the decision to refuse the visa (at [10]).

Proceedings in this Court

1. The applicants commenced proceedings in this Court on 25 March 2020. The application was brought pursuant to s.476 of the Act. To succeed in this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.

2. The application for judicial review dated 25 March 2020 contains four grounds of review as follows:

   1. No opportunity was given to provide essential evidence

   2. No opportunity was given to witness provide essential oral evidence

   3. The Tribunal failed to consider and put weight on to the documents that were provided by me

   4. Essential evidence was not taken into consideration

3. The applicants were given an opportunity to file an amended application, any affidavit evidence and an outline of submissions. No further documents were filed.

4. The materials before the Court thus include the judicial review application dated 25 March 2020, a Court Book numbering 148 pages (marked as Exhibit 1), an affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 28 May 2020 and an outline of submissions filed by the Minister on 7 September 2020.

5. At the hearing, the applicants appeared before the Court without legal representation. The first applicant spoke on his own behalf and on behalf of the second applicant. The Court confirmed with the applicants that they had received a copy of the relevant documents.

6. Noting that the applicants appeared without legal representation, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

7. To assist the first applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, 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].

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

9. Against this background, the first applicant outlined what amounted, in effect, to concerns he had about his sponsor’s nomination application – not his own application before the Tribunal.  In that regard, he asked that the Court hear from his sponsor, Mr Davey.  The Court did so but agrees with Ms Tattersall for the Minister that Mr Davey’s evidence again generally related to the Tribunal’s decision in relation to the employer nomination decision – not the decision under review here – and is thus largely irrelevant to the application before the Court.  Mr Davey also referenced concerns that both he and the applicant have about the conduct of their migration agent – an issue which the Court addresses below – and seemed to suggest that the Tribunal may have been “biased”.  This issue is also addressed below.    

Consideration

Ground 1

1. Ground 1 provides:

   No opportunity was given to provide essential evidence

2. This appears to be an allegation that the applicants were denied procedural fairness.

3. The relevant procedural fairness obligations are set out in div.5 of pt.5 of the Act.

4. Here, there is no evidence that the Tribunal breached its procedural fairness obligations. The applicants were given a number of opportunities to provide whatever evidence they wished to rely on. Relevantly:

   a)in the acknowledgment letter from the Tribunal dated
   15 June 2017, it was stated: “if you wish to provide material or written arguments for us to consider, you should do so as soon as possible” (CB 91);

   b)on 9 January 2020, the Tribunal invited the applicants to comment on information pursuant to s.359A of the Act. The applicants responded to that invitation and provided numerous documents in support (CB 115-127);

   c)an invitation to attend a hearing was sent to the applicants on 27 February 2020. That invitation stated: “we request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 20 February 2020” (CB 133); and

   d)the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments.

5. The applicants had over two years to present “essential evidence” to the Tribunal. They were prompted on two occasions (15 June 2017 and
   27 February 2020) to provide any information they wished to rely upon. The applicants responded to the invitation to comment with a number of documents. The applicants attended a hearing before the Tribunal where it was confirmed that they did not have any further documents to provide (CB 140).

6. The applicants were given every opportunity to participate and provide the evidence they wished to provide.

7. The Tribunal complied with its obligations in div.5 of pt.5 of the Act.

8. Ground 1 is, accordingly, dismissed.

Ground 2

1. Ground 2 provides:

   No opportunity was given to witness provide essential oral evidence

2. The applicants have not identified what witness was not given an opportunity to “provide essential oral evidence”.

3. Here, in the response to the hearing invitation, the applicants answered “no” when asked whether they wanted the Tribunal to take oral evidence from another person.

4. There is also nothing in the Tribunal’s decision record to indicate that the applicants requested the Tribunal to take the evidence of another person.

5. In these circumstances, it cannot be said that there was an unreasonable denial to present evidence.  There is simply no evidence that any request was ever made for the Tribunal to hear evidence from another person.

6. It cannot be said that the Tribunal denied the applicants procedural fairness in circumstances where s.361(3) of the Act states that the Tribunal is only required to “have regard” to a request if the Tribunal is notified that the applicants wanted the Tribunal to have regard to oral evidence from another person.

7. Ground 2 is dismissed.

Ground 3

1. Ground 3 provides:

   The Tribunal failed to consider and put weight on to the documents that were provided by me

2. It is well accepted that the weight the Tribunal gives to the evidence of an applicant is entirely a matter for the Tribunal as a part of its fact finding function: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464.

3. The “documents” that the applicants refer to here are those that were given to the Tribunal in response to the invitation to comment. These included submissions and letters of support from various persons.

4. The Tribunal acknowledged these documents as follows:

   5. On 21 January 2020, the applicants responded to the Tribunal’s letter stating inter alia that the Tribunal decision related to nomination review failed to consider circumstances related to training benchmark requirements.

5. It is apparent that the Tribunal had regard to the contents of the documents sent on 21 January 2020.

6. The applicants seem to suggest that the Tribunal did not “consider” the documents in the sense that it did not actively engage with the documents (i.e., it did not refer to the training requirement information or the personal factors that the applicants had made submissions about).

7. The Court agrees that the Tribunal did not “consider” these documents. However, it did not need to do so.  These documents were not relevant to the issue that was before the Tribunal. That issue was whether the first applicant was the subject of an approved nomination.

8. It did not matter why the first applicant was not the subject of an approved nomination (i.e., because the training requirements were overlooked).  Nor were personal factors relevant. The first applicant was required to have an approved nomination. Without an approved nomination his application failed. There was no discretion to waive the requirement.

9. Ground 3 is, accordingly, dismissed.

Ground 4

1. Ground 4 provides:

   Essential evidence was not taken into consideration

2. The applicants have not identified what “essential evidence” they are referring to here.

3. If the “essential evidence” is the documents the Court has considered in ground 3 above then, for the reasons given above, there is no error in this regard. The evidence and information was not relevant to the issue on review.

4. If the “essential evidence” is the “supporting information” which was not considered by the Tribunal in relation to the sponsor’s decision then this too must fail.

5. As explained to the applicant and Mr Davey, the Tribunal was not “reviewing” the sponsor’s decision and the sponsor’s decision is not relevant on review here.  The Tribunal could not overturn the sponsor’s decision in light of the “supporting information” that the applicants provided in relation to their application. The “supporting information” related to the sponsor’s nomination application.  Any submissions made about errors that occurred in relation to the sponsor’s decision were irrelevant to the Tribunal’s task when considering the applicants’ application.

6. Here, the Tribunal took into account all of the evidence that was necessary for it to determine whether the applicants met the visa criterion. Unfortunately, once it was apparent that the sponsor’s application had been denied, the Tribunal had no choice but to deny the applicants’ application.

7. Ground 4 is, accordingly, dismissed.

Bias

1. Mr Davey, on behalf of the applicant, seemed to suggest to the Court that the Tribunal was “standoffish” and not particularly engaging or helpful during the course of the Tribunal.

2. It is unclear whether Mr Davey is referring to the Tribunal’s determination of the nomination application or the Tribunal’s hearing in relation to the applicants’ application.

3. To the extent that Mr Davey is referring to the Tribunal’s conduct during the hearing of the nomination application, as detailed above this has no relevance to the Court in this application. That matter has not been appealed to this Court.

4. To the extent that Mr Davey is suggesting that the Tribunal was “biased” in relation to the applicants’ application to the Tribunal (which is the subject review before this Court), there is no evidence to support that contention.

5. It is well accepted that to prove bias it is for the applicants to establish that:

   a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

   b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].

6. On the evidence here, there is nothing to suggest any actual or apprehended bias on the part of the Tribunal. The Tribunal invited the applicants to attend a hearing and heard what they had to say. Ultimately, the Tribunal came to the only decision that was open to it.

1. No allegation of bias has been established.

Futility

1. In any event, and as the Minister submits, even if there was an error in the Tribunal’s decision any remittal would be futile.

2. In this regard, the Court notes the comments of Justice Mortimer in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[90] (“Singh”), as follows:

   88. … In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.

   89. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.

   90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

3. In effect, the applicants’ application is tied to the employer nomination. This is a “once-off process”. Here, there is no evidence to indicate that the sponsor’s decision is the subject of a review in this Court.  Hence, there is no nomination.  As such, the applicants could not be successful even if the Court were to remit the matter and further employer nominations will not satisfy the requirements of cl.187.233(1).

4. Accordingly, remittal would be futile.

Concerns in Relation to Conduct of Migration Agent

1. Both the applicant and Mr Davey raised what appear to be serious concerns about the conduct of their migration agent.  At their highest, these concerns reference incompetence or negligence on the part of the particular migration agent.

2. While the Court is not in a position to comment on the quality of the migration services offered in relation to this matter, the Court does wish to advise both the applicant and Mr Davey that any concerns they have in this regard can be raised with the Office of the Migration Agents Registration Authority.

Conclusion

1. The application for judicial review fails to identify any jurisdictional error. The Court has otherwise been unable to identify any error. The Tribunal came to the only decision that was open to it. In any event, remittal would be futile in the circumstances of this case.

2. Accordingly, the judicial review application is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 19 October 2020