Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 188
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chumber v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 188
File number: SYG 182 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2022 Catchwords: MIGRATION – Temporary Business Entry (Subclass 457) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by declining the first applicant’s request for an adjournment – whether the application is futile – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 140GB, 363, 476
Migration Regulations 1994 (Cth), cll 457.223 and 457.321 and Part 457 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Home Affairs & Anor [2019] FCCA 1594
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
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 18 March 2022 Place: Perth Applicants: First applicant, in person Counsel for the First Respondent: Ms C Dunn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 182 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MENAKSH CHUMBER
First Applicant
DALWINDER KAUR
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 in this proceeding are citizens of India (Court Book (“CB”) 2-3). They are husband and wife respectively (CB 2-3).
On 6 March 2015, the first applicant lodged an application for a Temporary Business Entry (Class UC) (Subclass 457) visa (the “visa”) (CB 1-12). In that application, he listed Bhullar Steel Distribution Pty Ltd (“Bhuller Steel”) as his sponsoring employer (CB 9). The second applicant was included in the application as a member of the first applicant’s family unit.
On 6 March 2015, the then Department of Immigration and Border Protection (the “Department”) requested additional information from the first applicant (CB 17-33).
On 2 April 2015, the applicants, through their representative, provided the Department with additional material in response to that request (CB 34-60).
On 18 May 2015, the Department invited the first applicant to comment on the fact that Bhuller Steel did not have an approved nomination in relation to his position (CB 61-65).
On 16 June 2015, the applicants, through their representative, responded to that invitation as follows (CB 66-69):
The applicant has received a Natural Justice letter to comment on the information for the Temporary Work (skilled) (subclass 457) visa application. The applicant is sponsored by his current and the prospective employer “Bhullar Steel Distribution Pty Ltd” on 24th Feb 2015 and subsequent to that the nomination application was lodged.
On 18/05/2015 the Department of Immigration and Border Protection had refused the sponsorship for the employer. The sponsorship was refused under the sections 140E(1) and (2) of the migration act. Hence the subsequent nominated application was also refused on 18/05/2015.
The employer has submitted the new application for the SBS and the subsequent nominated application. The details of the new sponsorship and the nomination application are as below.
On 12 August 2015, the Department refused the nomination application lodged by Bhuller Steel in relation to the first applicant (CB 80).
On 12 August 2015, the Department again invited the first applicant to comment on the fact that Bhuller Steel did not have an approved nomination in relation to his position (CB 71-74).
No response was received in relation to that invitation to comment.
On 1 October 2015, a delegate of the first respondent (the “Minister”) refused to grant the first applicant the visa (CB 79-82). The delegate was not satisfied that the first applicant met cl 457.223(4)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not the subject of an approved nomination (CB 80). As such, the second applicant failed to satisfy cl 457.321 in Schedule 2 of the Regulations (CB 81).
On 16 October 2015, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision. They did so with the assistance of a registered migration agent (CB 83-85).
On 2 November 2016, the Tribunal invited the applicants (through their registered migration agent) to attend a hearing before it on 23 November 2016 (CB 100-103).
On 16 November 2016, the first applicant advised the Tribunal of a change in representative, appointing Mr Michael Bhuller (“Mr Bhuller”) of Bhuller Steel to be his authorised representative (CB 108).
On or about 23 November 2016, the applicants provided further documents to the Tribunal in support of their application (CB 110-152).
On 23 November 2016, the first applicant appeared at a combined hearing before the Tribunal (CB 153-158). Mr Buller also appeared on behalf of Bhuller Steel (CB 153).
On 19 January 2017, the Tribunal invited the applicants (through their representative) to comment on or respond to the following information (CB 159-162):
•On 11 January 2017 the Tribunal affirmed the decision of the Department not to approve the nomination of you made by Bhullar Steel Distribution Pty Ltd for the position of Customer Service Manager.
On 2 February 2017, Mr Bhuller wrote to the Tribunal advising (CB 163-164):
In relation to the applications for review for Mr Menaksh Chumber and Mrs Dalwinder Kaur, I like to confirm new nomination has been submitted for Menaksh Chumber, therefore I am requesting that his application to be linked to the new nomination.
Mr Bhuller then gave the Tribunal a copy of letter from the Department to Bhuller Steel acknowledging receipt of a nomination application in relation to the first applicant
(CB 168-170).
On 15 February 2017, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 174-178).
The applicants sought review of the Tribunal’s decision in the then Federal Circuit Court of Australia (the “FCC”). The FCC remitted the application to the Tribunal for reconsideration (CB 181-182).
On 11 December 2017, the Tribunal invited the applicants to attend a hearing before it on 10 January 2018 (CB 189-191).
On 10 January 2018, the first applicant appeared before the Tribunal. He was assisted by an interpreter in the Hindi and English languages (CB 196-198).
On 10 January 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 201-206).
On 23 January 2018, the applicants filed an application for judicial review of the Tribunal’s decision in this Court. That application was supported by an affidavit deposed by the first applicant, which annexed a copy of the Tribunal’s decision.
The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 34 paragraphs. The final two pages of the decision contains extracts of relevant provisions contained in the Regulations.
The Tribunal first detailed the type of visa under review (at [1]), noting that the applicants had applied for the visa on 24 February 2015 (at [2]).
The Tribunal detailed the relevant legislative requirements as follows:
3.At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The Tribunal noted that a delegate had refused to grant the applicants the visas on 1 October 2015 because the first applicant was not the subject of an approved nomination (at [4]).
The Tribunal continued:
5.On 15 February 2017 the Tribunal affirmed the decision of the Department. Prior to the Tribunal’s decision the applicant requested the Tribunal to link the application for the temporary 457 visa lodged in February 2015 with the Department with a new nomination lodged just prior to the decision being made. The Tribunal declined to do this.
6.The matter is before the Tribunal because the applicant appealed the Tribunal’s decision and it was remitted by consent as the Tribunal ought to have inferred from the material that the applicants were seeking an adjournment. The Tribunal made a decision without considering the implied request for adjournment.
The Tribunal confirmed that the applicant’s appeared before it on 10 January 2018 to give evidence and were assisted by an interpreter in the Hindi and English languages (at [7]).
The Tribunal identified that the key issue in the current matter was whether the first applicant satisfied cl 457.223(4) of Schedule 2 of the Regulations (at [9]) – which requires that there be an approved nomination relating to the applicant that has not ceased (at [10]).
The Tribunal noted that the Department had refused the nomination lodged by the first applicant’s employer on 12 August 2015 and that there was no evidence before it to suggest that there had been any approved nomination in relation to the first applicant since that date (at [11]).
The Tribunal then detailed the first applicant’s evidence (as provided at the hearing) as follows:
(a)he was born in India in 1985 and arrived in Australia in 2007 as the holder of a student visa, holding temporary bridging visas since that time. The first applicant returned to India to marry and returned with his wife (the second applicant) (at [12]);
(b)he has family in India (parents and a brother and sister);
(c)he was once sponsored under a 457 visa but an extension was not approved after 2015 and he has been on bridging visas since, but continued working for the sponsor company (at [13]);
(d)the first applicant stopped working for the sponsor company in June 2013 because, he claims, Bhuller Steel did not pay him properly and he did not receive superannuation payments. He said that when he complained, they withdrew their application for his sponsorship (at [14]);
(e)he contacted Fair Work Australia and the Ombudsman but was told they could not assist and he should negotiate with his former employer and the first applicant was not a member of the Union (at [15]);
(f)the first applicant explained that a new nomination was lodged the day prior to the Tribunal hearing with another sponsor (Gautom Investment Pty Ltd) in relation to a different occupation. The Tribunal confirmed with the Department that a new nomination had been lodged on 9 January 2018 (at 16]);
(g)the first applicant asked the Tribunal to link the new nomination to his application for the visa lodged in February 2015. The Tribunal determined, however, that it was not able to link an application that was before the Department (at [17]);
(h)the Tribunal asked the first applicant if he was seeking an adjournment and that no decision be made until the outcome of the new nomination was decided. The First applicant indicated that he was indeed asking for an adjournment (at [18]);
(i)the first applicant explained that he had been in Australia on temporary visas for a lengthy period of time. The Tribunal asked the first applicant why he could not await the outcome of the nomination application in India and lodge a further application for a 457 visa (at [19]). The first applicant explained that he was working in Australia and would not have a job in India (at [20]); and
(j)the Tribunal asked the first applicant to comment on the short term nature of the 457 visa, the fact that the first applicant has family support in India and the fact that the outcome of the nomination was speculative. The first applicant explained that he was on a bridging visa but was currently working (at [21]).
The Tribunal noted that it had considered the first applicant’s adjournment request (at [22]) as follows:
23.The Tribunal accepts that the applicants could get a positive outcome and a new nomination. The Tribunal also considers that this can be a lengthy process the previous nominations were not successful and outcome is speculative.
24.The application for the 457 visa was lodged with the Department in February 2015. An application for review was lodged with the Tribunal in October 2015. During that time no new nomination has been approved. At the time of decision it is nearly three years later.
25.The applicant has applied for a temporary 457 visa. The purpose of this visa scheme is to fill short-term skilled vacancies in the Australia market that cannot, after, market testing be otherwise filled by Australian workers. It is difficult to resile this purpose of the visa with the lengthy wait requested by the applicants.
26.If there is a successful outcome and the nominator still needs the short-term position filled and they have not been able to find anyone to fill that position from the Australian market there is nothing to stop the applicants from applying off-shore for a 457 visa.
27.The applicant claims that does not want to return to India to await the outcome as he has no job in India and has a job in Australia. The applicant has family in India. He has studied in Australia and obtained skills. He is young and resilient. The Tribunal does not accept that he would not be able to obtain work in India.
28.The applicant gave evidence that he wanted to pursue his previous sponsor for unpaid wages and superannuation. The Tribunal only has the applicant’s assertions that he wants to pursue his claim no independent evidence was provided. He was employed by that sponsor in 2103. A significant amount of time has elapsed. If he does have any valid claim he could apply to the Department for a Bridging visa to pursue any claim.
Upon consideration of the first applicant’s request, the Tribunal declined to adjourn (at [29]).
The Tribunal noted that there was no evidence to indicate that the first applicant was the subject of an approved nomination (at [30]) and determined, accordingly, that there was no approved nomination in respect of the applicants (at [31]).
The Tribunal found that cl 457.223(4)(a) of Schedule 2 of the Regulations had not been met (at [32]) and, as such, the requirements for the standard business sponsor stream had not been met (at [33]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [34).
PROCEEDINGS IN THIS COURT
The applicants filed an application for judicial review in this Court on 23 January 2018. That application raises two “grounds of review” as follows:
1.THE DECISION OF MIGRATION REVIEW TRIBUNAL INVOLVES JURISDICTIONAL ERROR.
2.THE TRIBUNAL IGNORED RELEVANT REQUEST.
In support of the application for review, the first applicant deposed an affidavit on 22 January 2018. That affidavit states as follows:
1. THE DECISION OF TRIBUNAL INVOLVES JURISDICTIONAL ERROR
2. I HAVE ATTACHED THE DECISION OF DIBP AND MRT
The materials before the Court thus include the application for judicial review and supporting affidavit, both filed by the applicants on 23 January 2018, a Court Book numbering 206 pages (marked as Exhibit 1), a bundle of documents sent to chambers prior to the hearing (marked as Exhibit 2) and written submissions filed by the Minister on 4 March 2022.
At the hearing before this Court, the first applicant appeared via video link. No concerns were raised in this regard. Nor did any issues arise. The first applicant spoke on behalf of his wife. An interpreter in the Punjabi and English languages had been retained at the applicants’ request. Ultimately, however, the first applicant chose to address the Court in English. No issues arose in this regard. The first applicant spoke with ease and with clarity. The Court confirmed with the first applicant that he had 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 he thought the Tribunal “did wrong”. This is the standard practice 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 had fallen 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 (“Li”) 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 that background, the first applicant highlighted the difficulties he had had with his former employer and with his migration agent. Unfortunately, his concerns in this regard did not address the issue of jurisdictional error on the part of the Tribunal.
In the circumstances, the Court is left to assess the applicants’ grounds of review as articulated. Noting that the applicants are without legal representation, however, the Court will assess the grounds of review broadly and will remain alert to the possibility of error on the part of the Tribunal: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Ground 1
Ground 1 provides:
1.THE DECISION OF MIGRATION REVIEW TRIBUNAL INVOLVES JURISDICTIONAL ERROR.
Ground 1, without particulars, makes it difficult for this Court (and the Minister) to gage what the applicants allege the Tribunal “did wrong”. It is simply a bald assertion that is, in effect, meaningless.
No error arises in relation to ground 1.
Ground 2
Ground 2 provides:
2. THE TRIBUNAL IGNORED RELEVANT REQUEST.
Whilst not particularised, the Court considers this to be a reference to the Tribunal’s decision to decline the first applicant’s request for an adjournment.
In its reasons, the Tribunal explains that the first applicant notified the Tribunal of a new nomination lodgement and made a request that the Tribunal “link” that nomination to the original application for the visa (at [17]). The Tribunal then sought clarification from the first applicant about the scope of that request as follows:
18.The Tribunal asked if he was requesting that the Tribunal adjourn and not make a decision until the outcome of the new nomination was decided. He indicated that he was asking for an adjournment.
The Tribunal considered the first applicant’s request for an adjournment at [22]-[28], but ultimately declined to adjourn the hearing (at [30]).
It thus cannot be said that the Tribunal ignored the first applicant’s request and no error arises in that regard.
The question then arises as to whether the Tribunal’s decision to refuse to grant the first applicant’s request for an adjournment was legally unreasonable in the manner described in Li.
Pursuant to s 363(1) of the Act, the Tribunal has a statutory discretion to adjourn the review of matter “from time to time”.
Section 363(1) of the Act relevantly states:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to section 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
In this regard, the Court notes the High Court’s reasoning in Li, wherein the High Court assessed the scope of the exercise of a statutory discretion by a decision-maker as follows (emphasis added):
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In this matter, the Tribunal did outline its reasons for not adjourning the matter. Those reasons provided as follows:
22. The Tribunal has considered the applicant’s request for an adjournment.
23.The Tribunal accepts that the applicants could get a positive outcome and a new nomination. The Tribunal also considers that this can be a lengthy process the previous nominations were not successful and outcome is speculative.
24.The application for the 457 visa was lodged with the Department in February 2015. An application for review was lodged with the Tribunal in October 2015. During that time no new nomination has been approved. At the time of decision it is nearly three years later.
25.The applicant has applied for a temporary 457 visa. The purpose of this visa scheme is to fill short-term skilled vacancies in the Australia market that cannot, after, market testing be otherwise filled by Australian workers. It is difficult to resile this purpose of the visa with the lengthy wait requested by the applicants.
26.If there is a successful outcome and the nominator still needs the short-term position filled and they have not been able to find anyone to fill that position from the Australian market there is nothing to stop the applicants from applying off-shore for a 457 visa.
27.The applicant claims that does not want to return to India to await the outcome as he has no job in India and has a job in Australia. The applicant has family in India. He has studied in Australia and obtained skills. He is young and resilient. The Tribunal does not accept that he would not be able to obtain work in India.
28.The applicant gave evidence that he wanted to pursue his previous sponsor for unpaid wages and superannuation. The Tribunal only has the applicant’s assertions that he wants to pursue his claim no independent evidence was provided. He was employed by that sponsor in 2103. A significant amount of time has elapsed. If he does have any valid claim he could apply to the Department for a Bridging visa to pursue any claim.
29.The Tribunal has carefully considered the applicants request and declined to adjourn.
In effect, the Tribunal’s justification for refusing to adjourn the matter further was that it had determined that the first applicant had had ample time to secure a new sponsor and to have a new nomination approved (noting that it had been almost three years since the visa application had been lodged), previous nomination applications in relation to the first applicant were not successful and there was no guarantee that any new nomination application would be successful.
The Court notes that the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 emphasised as follows (emphasis added):
47.This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
Here, it cannot be said that the Tribunal’s reasons do not demonstrate an “intelligible justification” for the Tribunal’s refusal to adjourn.
The High Court in Li also stressed that there was no obligation for a Tribunal to afford an applicant every opportunity to present his or her case, stating as follows (emphasis added):
82.It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
This is arguably what the Tribunal did here. It acknowledged that there was a possibility that the applicants could have obtained a positive outcome with the new nomination, but considered that that outcome was speculative and could not be guaranteed (at [23]). Further, the Tribunal noted that previous nomination applications had been unsuccessful and that the applicants had already had three years within which to obtain an approved nomination.
Essentially, the Tribunal found that “enough was enough” – concluding that the applicants had been given sufficient opportunity to rectify the issue and obtain an approved nomination.
The Tribunal’s decision here contains an “evident and intelligible justification” for its refusal to adjourn the matter.
Further, the Court does not consider that it was unreasonable for the Tribunal not to adjourn the matter in circumstances where the applicants were on notice from the time of the delegate’s decision (being 1 October 2018) that the first applicant was not the subject of an approved nomination as required by the Regulations.
No error arises in this regard.
Futility
In the event that the Court is wrong in finding that the Tribunal has not fallen into jurisdictional error, the Court also notes as follows.
The applicants in this matter have sought review of the refusal of a subclass 457 visa. The visa was refused on the basis that the first applicant did not meet cl 457.223(4)(a) of Schedule 2 of the Regulations which, at the time of the Tribunal’s decision, relevantly provided as follows:
(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; and
…
This issue was considered by this Court in Kumar v Minister for Home Affairs & Anor [2019] FCCA 1594 as follows:
50.By virtue of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), subclass 457 visas have been removed, or are no longer offered. Consequential amendments have the effect that it is no longer possible for an employer to seek approval of a nomination to sponsor an applicant or proposed applicant for a subclass 457 visa.
51.In the absence of there being any approved or pending nomination in respect of the applicant (and noting that no nomination applications may now be lodged), the applicant can no longer be sponsored for the grant of the visa.
52.As the applicant can no longer be sponsored, he cannot meet cl.457.223(4)(a) of the Regulations.
The same issue arises in the present matter. The first applicant, on his own evidence before this Court, is not the subject of an approved nomination and can no longer be sponsored for the grant of the visa.
In circumstances where the first applicant is not the subject of an approved nomination and cannot satisfy cl 457.223(4)(a) of the Regulations, even if the mater were to be remitted to the Tribunal, the Tribunal would be left with only one choice. That is, the Tribunal would again be required to affirm the decision under review because the first applicant is unable to satisfy a mandatory criterion for the grant of the visa.
The Court is satisfied that, even if there were any instance of jurisdictional error on the part of the Tribunal, remittal in this instance would be futile.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 23 January 2018 have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2022
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