Coertzen & Anor v Minister for Immigration & Anor
[2020] FCCA 2410
•1 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COERTZEN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2410 |
| Catchwords: MIGRATION – subclass 457 visa – decision of the Administrative Appeals Tribunal – where no approved nomination – whether conduct of migration agents constituted a fraud on the Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.12.02, 13.03C Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) Migration Regulations 1994 (Cth), cl.457.223 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 |
| First Applicant: | RUDOLF COERTZEN |
| Second Applicant: | STERNA GROBLER |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 73 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 26 August 2020 |
| Date of Last Submission: | 26 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 1 September 2020 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 73 of 2020
| RUDOLF COERTZEN |
First Applicant
| STERNAL GROBLER |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of South Africa. The second applicant is the first applicant’s wife. They arrived in Australia on a Tourist visa in 2013 (Court Book (“CB”) 222 at [20]). The first applicant was subsequently granted a subclass 457 visa which expired on 29 June 2016 (CB 1-15).
The first and second applicant have a child. The child is not a party to these proceedings (CB 81-90).
On 16 June 2016, the first applicant applied for a Temporary Work (Skilled)(subclass 457) visa (the “visa”) (CB 1-15). The first applicant indicated that he was sponsored by BSL Australia Pty Ltd (the “sponsor”) for the position of “Project Administrator”. The second applicant was listed as a member of the first applicant’s family unit. The applicants were assisted by a migration agent (the “first migration agent”). That migration agent also acted for the sponsor.
On 29 November 2016, the sponsor’s nomination application was refused by a delegate of the first respondent (the “Minister”).
On 1 December 2016, the Minister’s Department wrote to the first applicant and invited him to comment on information that the nomination had been refused (CB 52-55). The delegate indicated that it was unlikely that the application could be successful in those circumstances. The applicant did not respond to this invitation.
On 6 January 2017, a Ministerial delegate refused to grant the visa on the basis that the first applicant did not meet cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) – that is, because the first applicant was not the subject of an approved nomination as required (CB 60-63). As the first applicant did not meet the primary criteria, it followed that his wife could not be granted a visa.
On 20 January 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 64-66).
On 25 October 2019, the Tribunal invited the applicants to comment on or respond to the following information (CB 72-73):
The application for approval of the nominated position made by BSL Australia Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
On 7 November 2019, the applicants, through a new migration agent (the “second migration agent”), emailed the Tribunal and asked for an extension of time within which to respond to the Invitation to Comment. The Tribunal extended the time to respond to 11 December 2019 (CB 76-78).
The applicants responded with submissions on 11 December 2019. The submissions explained that the sponsor had terminated the first applicant’s employment contract sometime around March 2017 and a dispute had occurred which required recourse to the Fair Work Commission. The submissions explained that the first applicant had asked the first migration agent (who was also representing the sponsor) if it was possible for the applicant to find a new sponsor while the appeal was being processed, to which “[h]e was categorically told that he could not and that he must wait for an outcome from the AAT before he considered other options” (CB 81-89). The first applicant requested that, due to the conduct of the first migration agent, the Tribunal refer his application to the Minister in the hope that the Minister might substitute “a more favourable decision pursuant to s.417 of the Act”.
On 9 January 2020, the applicants attended a hearing before the Tribunal with their new (second) migration agent (CB 98-100). The hearing was adjourned until 29 January 2020 (CB 101-104).
On 21 January 2020, the first applicant emailed the Tribunal stating that he was not properly informed about the resumed hearing, he had not made any submissions in relation to the resumed hearing and he could not get in contact with the second migration agent (CB 105-106).
On 24 January 2020, the first applicant and the second migration agent sent through further supporting documentation (CB 108-147). In the email sent by the first applicant, he again informed the Tribunal that he had not been informed of the resumed hearing and that he had not heard from the second migration agent.
On 29 January 2020, two additional pages of submissions were sent to the Tribunal by the applicants relating to the exercise of Ministerial Intervention (CB 153-213).
The applicants attended the resumed hearing with their new (second) agent on 29 January 2020 (CB 214-216). At the conclusion of the hearing, the Tribunal made an oral decision affirming the decision under review (CB 219-220).
On 5 February 2020, the Tribunal provided written reasons for decision (CB 220-226).
On 4 March 2020, the applicants applied to this Court for review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to succeed in this Court, the applicants must establish that the Tribunal has fallen into jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision is 6 pages long and spans 35 paragraphs.
The Tribunal first discusses the delegate’s decision in relation to the refusal of the visa and the details of the application before the Tribunal (at [1]-[7]).
The Tribunal identified that the relevant issue for consideration was whether the first applicant met the requirements of cl.457.223(4)(a) of Schedule 2 of the Regulations (at [8]). The Tribunal then set out the single requirement of that clause – i.e., that there be an approved nomination of an occupation relating to the first applicant by a standard business sponsor that has not ceased (at [9]).
After outlining the background to the delegate’s decision to refuse the sponsor’s nomination (at [9]-[16]), the Tribunal discussed issues relevant to the two hearings with the applicants (at [17]).
The Tribunal confirmed that the applicants had acknowledged that, because the first applicant was not the subject of an approved nomination, the applicants could not meet the requirements of cl.457.223(4)(a) (at [18]). It was noted that at the first hearing (on 9 January 2020) the applicants had indicated that they were seeking the Tribunal’s support in referring the matter to the Minister for intervention. However, at the hearing on 29 January 2020, the applicants indicated that they would “prefer to further consider whether they seek ministerial intervention or whether they use other avenues” (at [17]-[18]).
The Tribunal then considered the “unusual circumstances” in this case. The Tribunal discussed the applicants’ history in Australia, the first applicant’s visa history and concerns the applicants had about the conduct of the first migration agent (at [19]-[22]).
With respect to the first migration agent, the Tribunal stated (at [25]):
Mr Coertzen subsequently lost his employment with BSL Australia. He asked his then migration agent if he could get a new sponsor and Mr Coertzen states that “he was categorically told that he could not and that he must wait for an outcome from the AAT before he considered other options” While the Tribunal has not tested the truthfulness of this statement with his previous agent, subsequent lack of response to the Tribunal in this matter from the then agent together with Mr Coertzen’s candid responses to questioning would suggest his evidence in this regard is credible.
The Tribunal acknowledged that the first migration agent’s conduct was fatal to the visa application and compromised other migration pathways for the applicants (at [26]).
The Tribunal then summarised the strong compassionate circumstances relevant to the case and expressed sympathy for the applicants’ situation (at [27]-[30]). The Tribunal acknowledged the level of violence in South Africa, employment prospects, medical evidence surrounding the first applicant’s mother and the care that the first applicant provides for his family.
The Tribunal’s conclusion in relation to the request for referral to the Minister was as follows (at [31]):
The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but, as was requested by the applicants, has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.
As the Tribunal was not satisfied that the first applicant was the subject of an approved nomination, the Tribunal had no option but to find that cl.457.223(4)(a) was not met (at [32]-[33]).
The Tribunal concluded as follows (at [34]):
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
In light of the above, the delegate’s decision to refuse the visa was affirmed (at [35]).
Proceedings in this Court
The applicants’ application for judicial review dated 4 March 2020 contains 13 “grounds of review”. They provide:
1. I applied for a 457 visa; my wife was the secondary applicant; the nomination was refused. There was jurisdictional error in the refusal, the delegate did not believe that the position was genuine.
2. I appealed the decision to the AAT. Consequently our 457-visa had to be appealed too, so I could defend the nomination and application together.
3. The now Department of Home Affairs decided not to approve the nomination on the basis that the position was not genuine, however I was already, previously sponsored by the company in the nominated position. I was incumbent in the position at the time the application was made.
4. The nomination was only refused because the delegate did not accept the genuine nature of the position, however the supporting documentation previously supplied was in line with the Department’s prescribed criteria at the time (2017) and a strong argument for the position has already, previously been accepted. This was jurisdictional error in breach of the rules of natural justice in determining that the Applicant did not meet the criteria for grant of nomination, when in fact the applicant had satisfied that criteria at the time of application.
5. The AAT requested submissions prior to the hearing for the nomination. Section 379G relates to dealing with the Authorised recipient - If a person (the applicant) applies for review of a Part 5- reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
6. Section 379G (2) states that if the Tribunal gives a document to the authorised’ the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
7. The Tribunal attempted to communicate with the migration agent; there was no response from the agent.
8. Given the opportunity provided to the agent to respond and given that the law provides for the Tribunal to communicate outside of the Tribunal/ Authorised Recipient relationship, the Tribunal could have communicated with the applicant; allowing the nominee to provide submissions relative to the nomination.
9. The nominee lost the opportunity of defending the nomination because the Tribunal failed to communicate appropriately.
10. The Second Respondent heard the visa applicants; however because the second respondent had not facilitated communications outside of the Tribunal/ Authorised Recipient relationship, the application could not be defended as it should have been able to have been.
11. The Second Respondent has, in the past, made direct contact with nominees and visa applicants when Migration Agents have failed to communicate, or after the Tribunal has identified issues with specific agents; precedent had been set for the Tribunal to directly communicate with the nominee.
12. Therefore, the Second Respondent failed to afford the Applicant natural justice in that the Applicant was unaware of the nomination hearing, and consequently was unable to provide submissions; the Tribunal failed the applicant which had significant implication on the applicants’ visa hearing.
13. Therefore, the decision of the visa was impacted by the error in law and lack of natural justice provided to the applicant with respect to the associated nomination.
(Without alteration)
The Court has referenced the following materials when writing this judgment:
a)the judicial review application dated 4 March 2020:
b)an affidavit of Georgina Roberta Ellis affirmed 23 April 2020;
c)correspondence exchanged between the applicant, Chambers and the Minister (marked as Exhibit 1);
d)an email from the applicant dated 24 August 2020 attaching a “statement of account” (marked as Exhibit 2);
e)a Court Book numbering 228 pages (marked as Exhibit 3);
f)a document titled “Submissions Associate Judge Kendall” received 25 August 2020; and
g)the Minister’s written submissions filed 28 July 2020.
The matter was listed for hearing on 17 August 2020. Late in the evening of 16 August 2020, the first applicant emailed Chambers advising that he and his family had developed flu like symptoms and that, following health advice, they would be required to get a COVID-19 test. The Court determined that it was necessary to adjourn the matter to the following week – 24 August 2020. The Court advised that the hearing would take place by Microsoft Teams (alleviating the need to appear in person) and advised that, if the applicants could not participate on the date scheduled, verified medical evidence would need to be provided.
On 19 August 2020, the first applicant again emailed Chambers. He requested a referral for legal assistance on the basis that “significant new information” had come to light and that migration law is “complex”. He also indicated that he had applied for legal aid assistance. At the hearing of this matter on 26 August 2020 (discussed further below), the Court indicated to the applicant that it did not consider this to be an appropriate case for a referral under pt.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) to be issued.
A further email was sent to the Court Registry by the first applicant on 19 August 2020 indicating that two documents were not in the Court Book and that the applicants required them. One of those documents was a medical document relating to the second applicant. This document was marked as “NR” (Not Reproduced) on the index page. The failure to include this document in the Court Book is understandable. It has no bearing on the issues before the Court. It is also not necessary for the Court to view this document and, given the sensitive nature of the information disclosed, it was entirely appropriate that the information not be included. As for the second document, this relates to the hearing record of the Tribunal’s hearing on 29 January 2020. That document is in the Court Book at page 214-216.
The Court is satisfied that the applicants were provided with all of the relevant documents for this matter.
On 21 August 2020, Chambers received a further email from the applicants. This email requested an adjournment and provided a medical certificate (signed by a dentist) that indicated that the first applicant was “unfit to work” on 24 August 2020 and 25 August 2020: Exhibit 1. The Minister opposed any adjournment. The Court indicated that the hearing would proceed on 24 August 2020 and any request for an adjournment would be considered at that time.
On 24 August 2020, the applicants emailed Chambers a further document attaching a “statement of account” which indicated that the first applicant had had a “tooth extraction”: Exhibit 2.
When the matter was called on 24 August 2020, the applicants did not appear. Two attempts were made to contact the applicants on the mobile telephone number the first applicant had provided (noting Exhibit 2). Those calls were unsuccessful. The Court has the statutory power to dismiss an application upon non-appearance by an applicant (see, r.13.03C(1)(c) of the Rules). The Court did not do so. Instead, the Court adjourned the matter to 26 August 2020. What occurred at that hearing is discussed below.
On 25 August 2020, the applicants sent a document called “Submissions Associate Judge Kendall” to Chambers. The Court will consider these “submissions” and all attached documents. Within those submissions the applicants again requested a referral for legal assistance and a further adjournment. Both requests are denied and will be addressed below.
Request for Pro-Bono Referral
As indicated above, the applicants made a request for the Court to refer them for “pro-bono legal assistance” pursuant to (the Court assumes) r.12.02(1) of the Rules.
Rule 12.02(2) provides:
(2) When making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b)the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
This request was denied. The Court did not consider it appropriate to refer the matter for legal assistance because:
a)there is no evidence before the Court that details financial capacity or the capacity generally to obtain legal assistance. It is noted that the first applicant indicated that he had made contact with Legal Aid but had not yet received any response. It is unclear when that request was made. This does not assist the Court when determining if a referral should be made;
b)the Court did not consider the nature or complexity of the matter to be sufficient to warrant a referral. No controversial or novel issue of law appears to arise in relation to this matter;
c)while the first applicant stated that migration law “is complex”, the situation he and his family find themselves in in this regard is no different to every other self-represented applicant who appears in a migration proceeding before this Court. Regrettably, self-representation is the norm. While the Court is sympathetic, there are simply not enough resources to refer every matter that raises “complex” migration law issues;
d)there is no guarantee that the Court would be able to obtain a pro-bono lawyer to assist the applicants and, in light of the nature of this type of proceeding (noting that most successful pro-bono referrals arise in protection matters) the Court does not consider the probability of obtaining representation to be high;
e)the applicants have waited until “the eleventh hour” to raise the issue of pro-bono referral. The applicants filed their application in March 2020. They have been aware of the hearing date since April 2020. Issuing a referral would require an adjournment. The Court’s capacity to relist the matter this year is limited;
f)the Court, in its duty to the self-represented applicant, will assist the applicants to understand what is required of them so that they can participate meaningfully before the Court; and
g)the Court itself will remain astute and alert to the possibility of error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
On the basis of the above, the Court chose not to refer the applicants for pro-bono legal assistance.
Request for Further Adjournment
As noted above, the applicants were initially granted an adjournment on medical grounds. The matter was moved from 17 August 2020 to 24 August 2020 and then to 26 August 2020.
At the hearing on 26 August 2020, the Court asked the first applicant whether he wished to proceed with the hearing. He confirmed that he was able to do so and that a further adjournment was not required.
The hearing on 26 August 2020
The matter was heard on 26 August 2020. The parties appeared by video-link. The first applicant appeared on his own behalf and on behalf of his wife. The Court confirmed with the first applicant that he had received a copy of the Court Book, Ms Ellis’ affidavit dated 23 April 2020 and the outline of written submissions from the Minister dated 28 July 2020. The Court also explained what documents had been tendered.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, his 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].
To assist the applicants, the Court explained to the first applicant 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].
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.
Against this background, the first applicant referred in detail to the conduct of his two migration agents. He explained that his first migration agent had advised him that his case was “open and shut”, while his second migration agent failed to explain that they needed an approved nomination in order to be successful before the Tribunal. Further, the second migration agent told the applicants not to request Ministerial Intervention even though the Tribunal advised them to do so.
Many of the first applicant’s oral submissions relate to the conduct of his migration agents. It is clear that the visa process has been extraordinarily stressful for him and his family. The Court will address his concerns in relation to the services provided by his migration agents.
The first applicant also seemed to suggest that the Tribunal did not make the decision “itself”. Rather, the Tribunal simply did what the migration agent told it to do – that is, affirm the delegate’s decision. This issue will also be discussed below.
Consideration
Substantive Application
Grounds 1-4
For ease of reference, grounds 1 to 4 in the applicants’ application for judicial review dated 4 March 2020 provide:
1.I applied for a 457 visa; my wife was the secondary applicant; the nomination was refused. There was jurisdictional error in the refusal, the delegate did not believe that the position was genuine.
2. I appealed the decision to the AAT. Consequently our 457-visa had to be appealed too, so I could defend the nomination and application together.
3. The now Department of Home Affairs decided not to approve the nomination on the basis that the position was not genuine, however I was already, previously sponsored by the company in the nominated position. I was incumbent in the position at the time the application was made.
4. The nomination was only refused because the delegate did not accept the genuine nature of the position, however the supporting documentation previously supplied was in line with the Department’s prescribed criteria at the time (2017) and a strong argument for the position has already, previously been accepted. This was jurisdictional error in breach of the rules of natural justice in determining that the Applicant did not meet the criteria for grant of nomination, when in fact the applicant had satisfied that criteria at the time of application.
Although not entirely clear, the applicants appear to be suggesting that the delegate reached a conclusion which was unfair or unreasonable or illogical or irrational. That is, they appear to suggest that because the first applicant was “incumbent” in the nominated position at the time he applied for the visa and the nominated position had been accepted as genuine in a previous visa application, the Minister (or delegate making the decision) could not come to the conclusion that the nominated position was not genuine.
In oral submissions to this Court, the first applicant referred to the fact that his sponsor’s nomination had previously been approved for the same position.
The visa process for work visas is complex and often confusing for non-lawyers. On one level, the applicants’ concerns in relation to grounds 1 to 4 relate to the decision of a Ministerial delegate. This Court has no powers to review a delegate’s decision: the Act, s.476(2) and (4).
Further, insofar as the concerns raised relate to the fact that the Tribunal has relied on the delegate’s decision in relation to this matter, no error arises. The fact that a nomination may have previously been granted in relation to a previous visa application is not relevant here. Unfortunately, at the time of both the delegate’s decision and the Tribunal’s decision, an approved nomination was required and no approved nomination existed.
The Court acknowledges that a separate decision to refuse the sponsor’s nomination often leads to confusion and frustration on the part of the applicants who have, by all accounts, conducted themselves conscientiously and reasonably throughout a long and often difficult process. Unfortunately, once it is clear that no nomination exists, there is very little the Tribunal can do to assist an applicant – other than recommend that the applicant seek assistance directly from the Minister.
Grounds 1 to 4 are dismissed.
Grounds 5-13
For ease of reference, grounds 5 to 13 provide:
5. The AAT requested submissions prior to the hearing for the nomination. Section 379G relates to dealing with the Authorised recipient - If a person (the applicant) applies for review of a Part 5- reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
6. Section 379G (2) states that if the Tribunal gives a document to the authorised’ the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
7. The Tribunal attempted to communicate with the migration agent; there was no response from the agent.
8. Given the opportunity provided to the agent to respond and given that the law provides for the Tribunal to communicate outside of the Tribunal/ Authorised Recipient relationship, the Tribunal could have communicated with the applicant; allowing the nominee to provide submissions relative to the nomination.
9. The nominee lost the opportunity of defending the nomination because the Tribunal failed to communicate appropriately.
10. The Second Respondent heard the visa applicants; however because the second respondent had not facilitated communications outside of the Tribunal/ Authorised Recipient relationship, the application could not be defended as it should have been able to have been.
11. The Second Respondent has, in the past, made direct contact with nominees and visa applicants when Migration Agents have failed to communicate, or after the Tribunal has identified issues with specific agents; precedent had been set for the Tribunal to directly communicate with the nominee.
12. Therefore, the Second Respondent failed to afford the Applicant natural justice in that the Applicant was unaware of the nomination hearing, and consequently was unable to provide submissions; the Tribunal failed the applicant which had significant implication on the applicants’ visa hearing.
13. Therefore, the decision of the visa was impacted by the error in law and lack of natural justice provided to the applicant with respect to the associated nomination.
Grounds 5 to 13 suggest that the Tribunal denied the applicants procedural fairness by not inviting them to make submissions or “defend” the sponsor’s nomination. The crux of the applicants’ complaint appears to be that they ought to have been given an opportunity to be heard in the relation to the sponsor’s review application.
The difficulty with the applicants’ complaint is that they are, in effect, alleging a denial of procedural fairness in relation to a different Tribunal decision and hearing. That is, they are alleging a denial of procedural fairness in relation to the conduct of the sponsor’s review.
The applicants have no standing to bring an application in relation to the sponsor’s decision: the Act, ss.479 and 486C.
Further, the applicants were not a party to the sponsor’s nomination application. They had no “right” to be heard. While the Court understands the applicants’ confusion and frustration in this regard, unfortunately, they were not legally entitled to attend the sponsor’s hearing or provide submissions in relation to that application.
In fairness to the applicants, the Court will explain why there was no error in the applicants not being invited to provide submissions or otherwise participate in the sponsor’s review at the Tribunal.
The applicants seem to suggest that “precedence has been set” such that the Tribunal must communicate with an applicant directly when a migration agents fail to communicate with the Tribunal. The applicants seem to suggest that because the sponsor’s migration agent failed to respond to any correspondence, the Tribunal should have contacted the applicants. The applicants rely on s.379G. Unfortunately, the applicants misunderstand the application of s.379G of the Act.
Section 379G states:
(1) If:
(a) a person (the applicant ) applies for review of a Part 5-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document
As per s.379G(2), the Tribunal is not prevented from giving the applicant a copy of any document. Unfortunately, the applicants before the Court were not the “applicants” in relation to the sponsor’s application. BSL Australia was the applicant in those proceedings. Section 379G does not apply to the applicants in the context of the sponsor’s review application.
Further, the Tribunal did, in fact, exercise its power under s.379G(2) in relation to the sponsor’s review. In its correspondence sent 9 October 2019, the Tribunal communicated with the migration agent and the sponsor when seeking further information: Affidavit of Georgina Roberta Ellis, Annexure GRE-2.
Section 379G of the Act does not operate in the way that the applicants’ advance in their grounds of review. There was simply no obligation on the part of the Tribunal to invite the applicants to provide information in relation to the sponsor’s application. The sponsor had failed to respond to the s.359 invitation and, despite a further prompt from the Tribunal to contact the sponsor for information, nothing was forthcoming. The Tribunal was entitled to make a decision without taking any further steps to obtain information: the Act, s.359C(1).
For completeness, lest the applicants are suggesting that they were denied procedural fairness in relation to their own application before the Tribunal, on the evidence there is nothing to suggest that the applicants were denied procedural fairness as div.5 of pt.5 of the Act. Relevantly:
a)the Tribunal invited the applicants to participate in two hearings. Those hearings provided the applicants with a real and meaningful opportunity to participate: the Act, s.360;
b)the applicants were represented by a second migration agent who provided extensive written submissions and information to the Tribunal;
c)the applicants were not only on notice of the dispositive issue (by virtue of the delegate’s decision and the s.359A invitation to comment), they plainly conceded at the hearing that they were aware that they could not be granted the visa because there was no approved nomination (at [15] and [18]). Accordingly, the Tribunal complied with s.359A of the Act and the principles in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63;
d)while the Tribunal refused an adjournment of the second hearing in the days prior to the second hearing, there was no indication that the adjournment was pressed or that the applicants took issue with the Tribunal continuing with the review; and
e)the Tribunal was sympathetic and compassionate to the applicants’ circumstances. There is nothing to demonstrate actual or apprehended bias.
To the extent the first applicant’s submissions at the hearing suggested “bias” on the basis that the Tribunal only came to its decision because the second migration agent “told it to”, the Court does not accept this to be the case. The Tribunal’s decision shows that it took into account all of the information provided and gave the applicants every opportunity to actively engage with the Tribunal.
The applicants were afforded procedural fairness throughout the review process as it related their own visa application – an application which, again, is the only application before this Court.
For the reasons outlined above, ground 5 to 13 fail to identify jurisdictional error on the part of the Tribunal.
The Conduct of the Migration Agents
The applicants’ submissions and the first applicant’s oral submissions are largely directed towards the conduct of the migration agents who acted for the applicants during the course of their visa application.
The applicants’ written submissions provide as follows:
…
This case … was completed by a Migration Agent Named [omitted] to get more money out of us, but first how did we get here
Failure by a migration agents named [omitted] and [omitted] from [omitted] - to give me the correct information and ultimately costing me a change to launch a valid substantive visa, secondly I waited 3 years for a change to get in front of the administrative appeals tribunal and [omitted] accepted the member request to send the AAT hearing or report to the minister for ministerial intervention but yet she insisted that we not agree to send the report to the minister for ministerial intervention - saying that we have other pathways and the member from the AAT noted that in his report - [omitted] failed in her duty to tell us what other options we had – let me put in a simple terms if you would allow me to do so - the member for the AAT asked us 10 to 15 times are we sure that he needs to affirm the decision and each time we got told to say yes by [omitted] – we got asked again 10 to 15 times are you sure you do not want the AAT to send the report to the Minister for Ministerial Intervention and each and every time [omitted] said we need to say yes why I do not know I’m not an Migration Agent nor a Migration lawyer or any lawyer I’m just me - I relied on what I thought was professional advise that we were clearly not given I relied on a migration Agent that promised us that we will succeed with her advise
We trusted the information that was given we had no other lawyer or migration agent to turn to for a second opinion
We supplied to AAT the requested information to send the matter to the Minister for Ministerial intervention as went the member for the AAT said he will send it for Ministerial Intervention we got told to say NO!
Furthermore the AAT decision was send to [omitted] via email on the 3de February 2020 we were not copied in the first time we heard from [omitted] was on the afternoon of the 3de March 2020 to say myself and my wife need to go to Federal Circuit Court and submit paperwork and let her know when it’s done – she told us if you don’t do this you will be kicked out the country ATTACHED Mark A is evidence that all the court documents came from [omitted] I did not ask her to go to court I did not ask her to prepare court documents on my behalf but [omitted] did she is also not an lawyer who can prepare legal documents
The morning of the 4th myself and my wife went to court as instructed by [omitted] she told us were to go through what lobby and submit the Submissions that is before the courts at this time
Since the 4th of march we had limited contact with [omitted] when I called her to ask what we filled in the courts she told me paperwork when I asked her for direction for help in the Matter that she prepared [omitted] Told me she is not a lawyer she cannot help me
Dear Associate Judge Kendall since then [omitted] have left us in destitution with no help, I have sent her an email for urgent advice urgent help that was left unanswered she remains unrepented Marked ass Attachment B
We are now faced with the possibility for a cost order against us that is in the thousands
As noted in the findings of the AAT my parents are Australian Citizens my Sister is an Australian citizen my family have submitted supporting letters for doctors that my dad are terminally ill , my mom is in failing health my son is born in Australia he attended School since birth in Australia
Yet again failure by [omitted] to add [omitted] to our bridging Visas have left us in yet another difficult position that he is not included in the matter before the court but we ask that he is included in this matter
We ask that that cost order be made against [omitted] not to us
I have contacted Legal Aid as mentioned in my previous correspondence with no help
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(Without alteration)
Attached to the submissions was:
a)correspondence dated 4 March 2020 from the second migration agent to the applicants which appeared to attach documents called “AFFIDAVIT” , “APPLICATION”, “ANNEXURE”;
b)an email from the first applicant to the second migration agent expressing frustrations at the agent’s conduct;
c)a statement entitled “COMPLAINT AGAINST [THE SECOND MIGRATION AGENT]”; and
d)a Consumer/Trade claim that has been filed in the Magistrates Court of Western Australia.
Although not raised by the applicants, the Court queried whether the conduct of either of the applicants’ migration agents amounted to a “fraud” on the Tribunal.
In the context of judicial review in this Court, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. 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 (“SZLIX”). An applicant’s recourse for negligence, incompetence or bad advice is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed in a different court (which appears to have occurred here).
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 pt.5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
First Migration Agent and Sponsor
There is nothing before the Court to suggest that the first migration agent deliberately misled the applicants. Nor have the applicants suggested that this was the case.
The applicants’ submissions state simply that the Tribunal did not take into account the migration agent’s conduct.
This is incorrect.
The Tribunal accepted the first applicant’s evidence concerning the first migration agent and the fact that the first migration agent’s conduct was “fatal” to the visa application and the applicants’ future potential residency.
By the applicants’ own submissions to the Tribunal, the conduct of the first migration agent was stated to be “poorly presented migration advice” (CB 84). Poorly presented migration advice does not vitiate the Tribunal’s decision: SZLIX.
Further, the “poorly presented migration advice” from the first migration agent was known to the Tribunal. The Tribunal acknowledged the poor advice. However, while the “poor advice” had “compromised their ability to obtain visas”, it did not have any effect on the Tribunal carrying out its functions or the decision-making process.
No fraud is established in relation to the first migration agent.
To the extent that it can be suggested that the sponsor acted poorly or had, in effect, brought about the visa refusal out of disdain for the first applicant, the Court makes no definitive finding in this regard as there is insufficient evidence to support this assertion.
No fraud is established in relation to either the first migration agent or the sponsor.
Second Migration Agent
The applicants’ submissions (extracted above) and the first applicant’s oral submissions largely took issue with the conduct of the second migration agent.
Before this Court, the first applicant stated that the second migration agent advised him “against asking the Tribunal for a referral for Ministerial Intervention”. The first applicant explained that the Tribunal made it clear that it wanted to refer the matter for intervention but the second migration agent told the applicants they should say “no” when the Tribunal suggested this course of action.
The Court cannot, on the evidence, determine whether the second migration agent did definitively advise the applicants to tell the Tribunal that they did not want a referral for Ministerial Intervention.
The Court notes that in submissions to the Tribunal dated 29 January 2020, the second migration agent writes (CB 156):
Arguably it is not the intention of the court system to facilitate migrants ongoing stay in Australia, however that fact that migrants do use the court system in this manner is another clearly unintended consequence of legislation. Given Mr Coertzen’s parents health, and knowing that the Tribunal cannot grant the visa, it may be in the best interests of Mr Coertzen and his family to have a refusal from the AAT without asking for Ministerial Intervention; accessing the court system and remaining in Australia until a court has heard his matter. At least he will be able to care for his parents whilst his sister is completing her medical training offshore. There is a reasonable chance his parents may die before a hearing is constructed.
The Court also notes that the Tribunal states (at [17]):
At a reconvened hearing on 29 January 2020 the applicants indicated that they would prefer to further consider whether they seek ministerial intervention or whether they use other avenues.
The agent’s comments above are less than “ideal”. They seem to suggest that delays in court processes should be exploited. These comments do not, however, prove that the migration agent told her clients not to request Ministerial Intervention. Nor does the Tribunal state unequivocally whether this is what occurred. But this is neither here nor there in relation to an application for judicial review. What is important in this context is whether, even if the agent did so advise, her conduct amounts to a “fraud” on the Tribunal?
The Court is not prepared to accept that this conduct, as described, would amount to “fraud”.
Even if the Tribunal had referred the matter for Ministerial Intervention, the Tribunal was still obliged to affirm the delegate’s decision and refuse the visa. A pre-condition to Ministerial Intervention under s.351 is that the Tribunal has refused the visa. A migration agent would not have been incorrect in stating that Ministerial Intervention could be requested at a later stage and that “other options” could be pursued first. While an endorsement from the Tribunal might have been “helpful”, the Tribunal still needed to make a decision – with or without a request for intervention.
To the extent that the first applicant now says that he was not aware that he was required to have a nomination (and, implicitly, that the second migration agent never told him that this was “an issue”), the Court does not accept that this is the case.
Here:
a)the delegate’s decision was made on the basis that the first applicant did not have the approved nomination;
b)the applicants appear to have approached the second migration agent upon receiving the Invitation to Comment. The applicants were copied into an email sent by the second migration agent requesting further time to respond to the invitation; and
c)the Tribunal expressly noted that the applicants had acknowledged at the hearing that they could not meet the requirements of cl.457.223(4)(a) of the Regulations as the first applicant was not the subject of an approved nomination.
The Court does not accept that the applicants were not aware that they required a valid nomination to be successful. Nor does the Court accept that the second migration agent did not tell them that this was the case in circumstances where the second migration agent’s submissions to the Tribunal conceded that the visa could not be granted without an approved nomination.
In this context and on the evidence, the Court is not satisfied that the conduct of the second migration agent disabled the Tribunal from conducting a review. The Tribunal considered everything it was required to consider and afforded procedural fairness as required. No conduct on the part of the second migration agent deprived the Tribunal from doing what it was required to do.
To the extent that the applicants’ submissions refer to conduct of the second migration agent after the Tribunal’s decision (i.e., in relation to a bridging visa and a lack of communication), any conduct of the sort indicated cannot vitiate the Tribunal’s decision.
No error arises in this regard.
The applicants are undoubtedly aggrieved by what they say is unprofessional conduct on the part of their second migration agent. They have indicated that they have filed a complaint with the Office of the Migration Agent Registration Authority. They have also lodged a claim in the Magistrates Court against the second migration agent for fees and costs to date.
Conclusion
The Court sympathises with the applicants. They have conducted themselves conscientiously throughout their time in Australia. Unfortunately, through no fault of their own, the applicants have been unable to obtain the visa that they sought and can now no longer be granted the visa as a result of legislative amendments that have effectively abolished the relevant visa class: Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth).
The applicants have failed to identify jurisdictional error in the Tribunal’s decision. Further, any remittal would be futile as there is simply no nomination of the sort required and there no possibility that a further nomination can be obtained.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
s
Date: 1 September 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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Statutory Construction
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