Chen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 670
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
File number: PEG 139 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 1 August 2023 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider any of the criteria for the grant of the visa – whether the Tribunal failed to provide the applicants with an opportunity to apply for a new nomination from a new sponsor – whether the conduct of the applicants’ agents amounted to fraud on the Tribunal – whether the Tribunal’s decision to deny the applicants an adjournment request was unreasonable – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 359A & 476 and Part 5
Migration Regulations 1994 (Cth), cll 187.21, 187.23, 187.233 & 187.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 524
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Roy v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 903
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 55
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 30 June 2023 Place: Perth Applicants: First and second applicants appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 139 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LI CHEN
First Applicant
WENLONG JIA
Second Applicant
JIN JIA
Third Applicant
YUE JIA
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
1 AUGUST 2023
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 in this matter are citizens of the People’s Republic of China (Court Book (“CB”) 2-7). The first and second applicants are wife and husband respectively (CB 2-4). The third and fourth applicants are the (minor) children of the first and second applicants (CB 5-7).
On 8 September 2016, the first applicant applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (the “visa”) (CB 1-16). In her visa application, the first applicant listed her nominated occupation as “Office Manager” (CB 10) and her sponsoring employer was PTG Construction and Development Pty Ltd (the “sponsor”) (CB 92 & 120). The second, third and fourth applicants were included in that visa application as members of the first applicant’s family unit (CB 3-8). The first applicant also nominated a registered migration agent as the applicants’ authorised recipient in relation to the visa application (the “first representative”) (CB 9-10).
On 27 June 2018, the Department of Home Affairs (the “Department”) requested more information from the first applicant (through the first representative) in relation to the visa application (CB 28-35).
In response, the applicants provided further materials to the Department, including completed Form 1221 – Additional personal particulars information and Form 80 – Personal particulars for assessment including character assessment documents (CB 36-91).
On 9 January 2019, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application in relation to the first applicant (CB 120-127).
Later that day (also on 9 January 2019), the Department wrote to the first applicant (through the first representative) inviting her to comment on the fact that the sponsor’s nomination application had been refused (CB 92-95).
No response was provided by or on behalf of the first applicant (CB 107).
Also on that date (being 9 January 2019), the applicants appointed a new migration agent to assist them with the visa application (the “second representative”) (CB 96-97).
On 7 February 2019, a delegate of the Minister refused to grant the applicants the visas (CB 106-114). The delegate determined that, as the sponsor’s nomination application had been refused, the first applicant did not satisfy cl 187.233 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 107). The second, third and fourth applicants thus did not satisfy cl 187.311 in Schedule 2 of the Regulations (CB 109-113).
On 22 February 2019, the applicants applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 115-117). The applicants were assisted by the second representative in relation to the review application (CB 116-117).
The sponsor also sought review of the delegate’s decision to refuse the nomination application at the Tribunal (CB 164).
On 5 April 2022, the Tribunal invited the applicants (through the second representative) to appear at a Tribunal hearing on 28 April 2022 (CB 135-139).
On 28 April 2022, the first applicant attended a combined Tribunal hearing with the sponsor. The first applicant was assisted at that hearing by a Mandarin interpreter (CB 145-150).
On 15 June 2022, the Tribunal affirmed the delegate’s decision to refuse the sponsor’s nomination application (CB 164).
That same day (also on 15 June 2022), the Tribunal wrote to the applicants (through the second representative and pursuant to s 359A of the Migration Act 1958 (Cth) (the “Act”)) and sought their comments on or response to the Tribunal’s decision in relation to the sponsor’s review application (the “invitation letter”) (CB 151-154).
The invitation letter asked the applicants to comment on the following information (CB 153):
•On 15 June 2022, the Tribunal affirmed the decision to refuse a nomination application lodged by PTG Construction and Development Pty Ltd.
This information is relevant to the review because you were the identified, prospective nominee. As this nomination application has been refused, you may be unable to meet cl 187.233(3) in Schedule 2 to the Migration Regulations, as the nomination you identified when you lodged your visa applications.
If we rely on this information in making our decision, we may find that you are unable to meet cl 187.233(3), as you are not subject to an approved nomination, and affirm the decision under review, as cl 187.233 is a primary criterion that must be met at the time of decision.
A response was required from the applicants by 29 June 2022.
On 23 June 2022, the first applicant contacted the Tribunal (via email) and advised that she was “unwell” and “not able to provide information” in response to the Tribunal’s invitation letter. She requested an extension of time within which to provide a response and attached a medical certificate from a general practitioner dated 21 June 2022. The medical certificate stated (CB 155):
Ms Li Chen has a medical condition and will be unfit for work/study from 22/06/2022 to 29/06/2022 inclusive.
On 24 June 2022, the Tribunal refused to grant the extension of time and notified the applicants (through the second representative) accordingly (CB 156-158). The correspondence from the Tribunal relevantly stated (CB 158):
The Member has considered the request carefully but has decided not to grant an extension of time. The comments or response must therefore be received by 29 June 2022, as previously advised.
If we do not receive your comments or response by 29 June 2022, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No further correspondence was provided by or on behalf of the applicants (CB 165).
On 30 June 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 162-166).
On 19 July 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is five pages long and spans 21 paragraphs. The final page of the decision contains extracts of relevant legislative provisions.
The Tribunal first identified the type of visa the applicants had applied for (on 8 September 2016) and the relevant subclass (being Subclass 187 visas). The Tribunal also noted that a delegate of the Minister had refused to grant the applicants the visas under s 65 of the Act (at [1]-[2]).
The Tribunal explained the relevant criteria for the grant of the visas and confirmed that the first applicant had sought the visa in the Direct Entry scheme, noting that the applicant had been nominated for the position of Office Manager. The Tribunal then summarised the delegate’s decision (at [3]-[5]).
The Tribunal confirmed that the first (and primary) applicant appeared at a hearing before it to give evidence and present arguments and noted that the applicants had been represented in relation to the Tribunal review (at [6]-[7]).
The Tribunal identified that the issue in this case was whether there was an approved nomination relating to the first applicant (at [9]) and explained as follows:
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 also noted that, for an applicant to be granted the visa, the nomination needed to be approved (and not subsequently withdrawn) (at [11]).
The Tribunal explained that it had affirmed the delegate’s decision refusing the sponsor’s nomination application relating to the first applicant on 15 June 2022 (at [12]).
The Tribunal noted that the first applicant had been invited (pursuant to s 359A of the Act) to comment on or respond to information by 29 June 2022 (at [13]).
The Tribunal then considered the first applicant’s request for an extension of time to respond to the Tribunal’s invitation letter, determining as follows:
14.On 23 June 2022 the applicant requested an extension of time in relation to responding to the Tribunal’s invitation as she was “unwell”. A medical certificate dated 21 June 2022 was provided to the Tribunal which stated that the applicant has a “medical condition and will be unfit for work/study from 22/06/22 to 29/06/22 inclusive”. It is unclear why the medical certificate is for a period commencing the day after the date it was issued. Notably, the medical certificate is dated eight days after the applicant was provided the Tribunal’s invitation and the medical certificate does not specify the condition or whether or not the applicant was unable to respond to the Tribunal’s invitation, rather it simply indicates that the applicant is unfit for work/study for a period commencing the day after the certificate was issued until 29 June 2022. The applicant has not set out the reasons why she is unable to provide a response.
15.Further, the applicant has not provided any indication to the Tribunal as to what information is sought to be provided in response to the Tribunal’s invitation or the reasons why it cannot be obtained. Given the binary nature of the determinative issue, the Tribunal considers the prospects of the applicant being able to satisfy the mandatory criteria that the applicant holds a nomination approved by the Minister is remote.
16.As at the time of decision no further correspondence has been received from the applicant. For these reasons, the Tribunal did not provide the applicant with an extension of time to respond to the Tribunal’s invitation issued on 15 June 2022.
Having determined that no extension of time should be granted, the Tribunal reiterated that cl 187.233 in Schedule 2 of the Regulations had not been met as there was no approved nomination in relation to the first applicant at the time of its decision (at [17]-[18]).
The Tribunal then determined that, as the first applicant only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream (and those criteria had not been met), the decision under review had to be affirmed (at [19]).
The Tribunal also determined that the second, third and fourth applicants did not meet the criteria for the grant of the visas as they were not members of a family unit of a person that holds a visa (at [20]).
The Tribunal ultimately affirmed the decision refusing to grant the applicants the visas (at [21]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 19 July 2022 contains two particularised grounds of review, as follows (without alteration):
1.Firstly, the Tribunal fell into jurisdictional error when it failed to take into account all relevant parts of Regulation 187 when deciding whether the applicant met the criteria for grant of the subclass 187 visa, including the applicant's age, qualifications, experience and the English language competency. The Tribunal only addressed Regulation 187.233.
2.Secondly, as the related nomination application by the nominator, PTG Construction and Development Pty Ltd was made before 1 July 2017, the Tribunal failed to consider and/or provide an alternative option open to the applicant which was to apply for a fresh nomination from another nominator. This fresh nomination application would have been able to be linked to the pending visa application, which was under review. The Tribunal therefore fell into jurisdictional error.
Particulars
•The nomination application was refused due to no fault of the applicant.
•The failure of the nominator to employ the applicant in the nominated position was something the applicant had no control over.
•The applicant had done and met a the requirements for the grant of a subclass 187 visa in relation to age, qualifications and English language competency.
•The Tribunal’s failure to address the eligibility of the applicant to be nominated by another nominator deprived the applicant of his right to be nominated by a new prospective nominator.
The applicants also filed an affidavit (affirmed by the first applicant on 18 July 2022) in support of their judicial review application. That affidavit sets out some background information relating to the first applicant’s visa and employment history but otherwise only emphasises that the first applicant is “dissatisfied with the decision”.
On 23 September 2023, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 19 July 2022, a Court Book numbering 167 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 21 April 2023 and an affidavit of service of Benjamin Mayne (affirmed and filed on 1 May 2023).
The first and second applicants appeared before this Court on 30 June 2023 without legal representation. The first applicant indicated that she would speak on behalf of her family. To facilitate this, the Court made orders (with the Minister’s consent) appointing the first applicant as litigation guardian for the third and fourth applicants. The Court also 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 decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; 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.
Against this background, the first applicant told the Court that her “major concern” is that she was told by her agent that she could not work and later she found out that she should have (and could have) been working. The first applicant explained that she suspected that this may have been the reason “the Tribunal accused” her of not working for the sponsor for the period from 2016 to 2019.
The first applicant also stressed that she had “been waiting a long time” (since 2016) and that her agent had “made things complicated”. She further stressed that she did “not know much about migration law” and thought her “agent would assist her,” but now accepts that the agent did not do so.
CONSIDERATION
As outlined above, the applicants included two particularised grounds of review in their application for judicial review (filed on 19 July 2022). The first applicant also raised some additional concerns at the hearing before this Court.
Unfortunately, the first applicant was unable to clarify the grounds of review as articulated. This comment should not be seen as a criticism of the applicants. The lack of clarity seen here is, unfortunately, often the norm in migration proceedings where the applicants are not legally represented and are not fluent in the English language (as was the case here).
To assist the applicants, the Court will read the grounds of review and concerns raised by them as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Grounds of Review
Ground 1
For ease of reference, ground 1 provides:
1.Firstly, the Tribunal fell into jurisdictional error when it failed to take into account all relevant parts of Regulation 187 when deciding whether the applicant met the criteria for grant of the subclass 187 visa, including the applicant’s age, qualifications, experience and the English language competency. The Tribunal only addressed Regulation 187.233.
In relation to ground 1 the Court notes the contents of the Minister’s written submissions (filed in this Court on 21 April 2023) as follows:
18This ground is misconceived because the Tribunal was not required to consider any of the criteria for the grant of the visa under cll 187.21 and 187.23 in Schedule 2 to the Regulations in circumstances where it had found that the applicant did not have an approved nomination, which was an essential requirement. The clauses to be satisfied for the grant of the visa are cumulative, and if an applicant fails to meet one criterion, the applicant cannot be granted the visa: Roy v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 903 at [18].
The Court agrees for the reasons that follow.
As explained in Roy v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 903, having an approved nomination is an essential requirement for the grant of the visa. The criteria for the grant of a Subclass 187 visa in the Direct Entry stream are set out in cll 187.21 and 187.23 in Schedule 2 of the Regulations and are cumulative. That is, if an applicant fails to meet one of the criterion, that applicant cannot be granted the visa.
The evidence before the Tribunal clearly indicated that the sponsor’s nomination had been refused. In those circumstances, the Tribunal was correct in determining that that the first applicant did not satisfy cl 187.233 in Schedule 2 of the Regulations.
The Tribunal had no discretion to waive the requirement for the first applicant to be the subject of an approved nomination. It was therefore unnecessary for the Tribunal to consider other factors (such as age and English language proficiency) where those matters had no relevance in relation whether the first applicant was the subject of an approved nomination.
On the basis of the above, the Court is satisfied that there was no need for the Tribunal to assess whether the first applicant met any of the other criteria for the grant of the visa (as set out in cll 187.21 and 187.23 in Schedule 2 of the Regulations).
To the extent that the applicants suggest that the Tribunal should have considered other factors when deciding whether the first applicant met cl 187.233 in Schedule 2 of the Regulations, the Court again disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 524, the sole issue for consideration for the Tribunal in matters of this sort is whether the primary applicant (here, the first applicant) was the subject of an approved nomination as required by cl 187.233 in Schedule 2 of the Regulations. That provision relevantly states:
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(12); and
(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
…
In this matter, the applicants were invited (through their second representative) to comment on or respond to information that indicated that the sponsor’s nomination application had been refused (CB 151-154). Save for requesting an extension of time to respond (discussed further below), the applicants did not provide any substantive response to the invitation to comment.
Clause 187.233 in Schedule 2 of the Regulations did not provide for any discretion on the part of the Tribunal to take into account any “other factors” raised by the applicants. The question for the Tribunal was, simply, whether the first applicant was the subject of an approved nomination.
Here, the applicants did not provide any information to the Tribunal (or to the delegate or this Court) to indicate that the first applicant was the subject of an approved nomination.
The Tribunal was under no obligation (and had no discretion) to consider any other information or “factors” raised by the applicants (including in relation to the first applicant’s age, work experience or English language competency). Indeed, the Tribunal made the only decision open to it.
No jurisdictional error arises in relation to ground 1.
Ground 2
For ease of reference, ground 2 provides:
2.Secondly, as the related nomination application by the nominator, PTG Construction and Development Pty Ltd was made before 1 July 2017, the Tribunal failed to consider and/or provide an alternative option open to the applicant which was to apply for a fresh nomination from another nominator. This fresh nomination application would have been able to be linked to the pending visa application, which was under review. The Tribunal therefore fell into jurisdictional error.
It is noted further that the application for judicial review also provides particulars that appear to relate to ground 2 and which provide as follows:
•The nomination application was refused due to no fault of the applicant.
•The failure of the nominator to employ the applicant in the nominated position was something the applicant had no control over.
•The applicant had done and met a the requirements for the grant of a subclass 187 visa in relation to age, qualifications and English language competency.
•The Tribunal’s failure to address the eligibility of the applicant to be nominated by another nominator deprived the applicant of his right to be nominated by a new prospective nominator.
In relation to ground 2, the Court notes the contents of the Minister’s written submissions (filed in this Court on 21 April 2023) as follows:
20The applicants allege in ground two that the Tribunal ‘failed to consider and/or provide an alternative option open to the applicant’ to apply for a new nomination from another nominator. The applicants also state that the refusal of the sponsor’s nomination was not their fault and was beyond their control.
21The Tribunal was not required to consider or provide an alternative option to the applicant regarding the possibility of obtaining another sponsor. The Tribunal’s statutory task was limited to conducting a review of the decision before it. In Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 (Singh), the Full Court of the Federal Court held that the words in cl 187.233 that a ‘position nominated in an application for approval that seeks to meet the requirements of reg 5.19’ of the Regulations refer to a ‘factual event’, namely that 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: Singh at [88]. The ‘position’ or ‘occupation’ 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: Singh at [88]. Therefore, even a fresh nomination in relation to the same position made by the same sponsor could not be relied upon to meet the requirements in cl 187.233 because the new nomination would not be in relation to which the declaration was made. The Tribunal in the present case made the only finding open to it on the facts.
22Further the reasons why the applicant was not the subject of an approved nomination were plainly not relevant to whether she satisfied the requirements in cl 187.233. For the reasons set out above in ground one, the Tribunal made the only decision that was open to it, and it did not have the power or discretion to waive the requirements in cl 187.233.
The Court notes that there was no evidence before the Tribunal to suggest that the first applicant had another employer who was willing to nominate her for the visa. Further, even if the first applicant did have a new employer, this could not have assisted the applicants.
As detailed by this Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 55, in order for the applicants to be granted the visas, the approved nomination had to be the nomination that the first application had identified in her visa application. A new nomination could not be substituted.
As explained in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88] and [90] (“Singh”) (emphasis added):
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.
…
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).
It did not matter here whether the first applicant had another employer willing to nominate her (or whether she could find a new employer willing to do so if the Tribunal had granted her additional time). The criterion required the sponsor (and the nomination) identified and declared in the first applicant’s visa application to be approved. It had not been approved. The Tribunal was thus correct in determining that the first applicant did not, and could not, meet cl 187.233 in Schedule 2 of the Regulations.
No jurisdictional error arises in relation to ground 2.
First applicant’s oral submissions – Conduct of the agent
As outlined above, the first applicant advised the Court that she was concerned that she had been told by her agent that she could not work but later she found out that she could have and should have been working. The first applicant explained that she suspected that this may be the reason that “the Tribunal accused” her of not working for the sponsor for the period from 2016 to 2019.
These comments appear to relate either to findings made by a delegate of the Minister when refusing the nomination application (CB 126-127) or those made by a delegate of the Minister when refusing to grant the applicants the visas (CB 107). The findings address discussions about whether the position was actually needed and information provided by the owner and co-director of the sponsoring business respectively.
The application before this Court relates to the applicants’ visa application and the decision made by the Tribunal in that regard. This Court has no jurisdiction to review the decision to refuse the nomination application or the delegate’s decision refusing to grant the applicants the visas: ss 476(2) and (4) of the Act.
No error arises in this regard.
The first applicant also stated that her agent did not assist her the way she had expected and seemed to express concern that her agent’s conduct resulted in the situation she now finds herself in.
As this Court has previously explained in Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81], when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
On the material before the Court, it cannot be said that the conduct of either of the applicants’ representatives amounts to fraud.
The Court also notes that negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for any such negligence, incompetence or bad advice (and the Court makes no findings about the applicants’ representatives in this regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed elsewhere.
No jurisdictional error arises in this regard.
Otherwise
Whether the Tribunal’s decision to deny an adjournment request was unreasonable
It is noted that the first applicant requested an extension of time within which to respond to the Tribunal’s invitation letter on medical grounds and provided the Tribunal with a medical certificate in that regard (CB 155). As outlined above, the Tribunal considered that request in its written reasons as follows:
14.On 23 June 2022 the applicant requested an extension of time in relation to responding to the Tribunal’s invitation as she was “unwell”. A medical certificate dated 21 June 2022 was provided to the Tribunal which stated that the applicant has a “medical condition and will be unfit for work/study from 22/06/22 to 29/06/22 inclusive”. It is unclear why the medical certificate is for a period commencing the day after the date it was issued. Notably, the medical certificate is dated eight days after the applicant was provided the Tribunal’s invitation and the medical certificate does not specify the condition or whether or not the applicant was unable to respond to the Tribunal’s invitation, rather it simply indicates that the applicant is unfit for work/study for a period commencing the day after the certificate was issued until 29 June 2022. The applicant has not set out the reasons why she is unable to provide a response.
15.Further, the applicant has not provided any indication to the Tribunal as to what information is sought to be provided in response to the Tribunal’s invitation or the reasons why it cannot be obtained. Given the binary nature of the determinative issue, the Tribunal considers the prospects of the applicant being able to satisfy the mandatory criteria that the applicant holds a nomination approved by the Minister is remote.
16.As at the time of decision no further correspondence has been received from the applicant. For these reasons, the Tribunal did not provide the applicant with an extension of time to respond to the Tribunal’s invitation issued on 15 June 2022.
To the extent that the applicants are suggesting that the Tribunal’s decision to refuse their request for an adjournment was “irrational”, “illogical” or “unreasonable”, the Court disagrees.
As previously outlined by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Here, the Tribunal’s determination that no further time should be granted was, contextually, reasonable. Relevantly, the first applicant’s medical certificate did not indicate why the first applicant was unable to respond to the Tribunal’s invitation letter (and the first applicant did not provide any explanation or reasons to the Tribunal in this regard). The medical certificate was also issued eight days after the first applicant was sent an invitation letter and no response was provided during those eight days. Further, in circumstances where the determinative issue before the Tribunal was binary in nature and it had already determined that the first applicant was not the subject of an approved nomination, the first applicant could not have provided any information to satisfy that criterion or to be eligible for the grant of the visa.
It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking in a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No jurisdictional error arises in this regard.
Futility
As discussed by this Court in Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 (“Thakur”) (and other similar matters involving Subclass 187 visas), visas of this sort are, in effect, “tied” to the sponsor and the approval of that related nomination application. It is a pre-requisite that the sponsor’s nomination application be successful in order for an applicant to be successful with his or her visa application. If the nomination application is not successful, an applicant’s visa application is “doomed to fail”.
In relation to this matter, even if the Court found that there was jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh. This is so because the Tribunal would, again, find that the first applicant does not meet cl 187.233 in Schedule 2 of the Regulations. Importantly, she is not the subject of a valid nomination. Further, there is no evidence before this Court to suggest that the sponsor has sought to challenge the nomination decision in this Court (after the Tribunal, on 15 June 2022, affirmed the decision refusing the nomination application made by the sponsor).
As per this Court’s reasoning in Thakur, the decision to refuse the nomination in relation to the first applicant thus remains a valid and effective decision which, on remittal, the first applicant cannot cure. She cannot, for example, find a new sponsor or be nominated for a different position. The application is a “once off” process tied to the sponsor’s nomination application which, here, has failed. This means that the applicants will, on any view, also fail if the matter is remitted to the Tribunal.
Accordingly, any decision by this Court to remit the matter would be futile.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicants on 19 July 2022) have 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 ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 August 2023
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