CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 710
Federal Circuit and Family Court of Australia
(DIVISION 2)
CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 710
File number: PEG 169 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 August 2022 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the applicants were given a fair opportunity to provide documents to the Tribunal – whether the Tribunal erred by conducting a hearing by telephone – whether the Tribunal erred by failing to revoke its decision – remittal futile in any event – ministerial intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 351, 363, 365, 366, 368, 476
Migration Regulations 1994 (Cth), cll 187.233 & 187.322 in Schedule 2
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
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 & Border Protection v Dhillon (2014) 227 FCR 525
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
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 & Multicultural Affairs [2021] FCCA 726
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
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: 129 Date of hearing: 24 August 2022 Place: Perth Applicants: In person Counsel for the First Respondent: Ms L Groves Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 169 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXD22
First Applicant
CXE22
Second Applicant
CXF22
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicants are citizens of Nepal (Court Book (“CB”) 15, 16 & 18 and 49, 63 & 88). The first and second applicants are husband and wife respectively (CB 15-17 & 86). The third applicant is their son. He was born in Western Australia in November 2012 (CB 18 & 85). The applicants have another child (a daughter), born in Western Australia in October 2021 (CB 142). That child is not a party to the proceeding before this Court.
On 29 January 2018, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) (Regional Sponsored Migration Scheme) visa (the “visa”) (CB 14-30). The second and third applicants were included in that visa application as members of the first applicant’s family unit (CB 16-19). Annexed to that visa application were various supporting documents relating to the applicants (CB 31-112).
The first applicant applied the visa on the basis of his employment with [omitted] (owned by [omitted]) (the “sponsor”) (CB 58-61) in the nominated occupation of “Office Manager” (CB 22).
On 4 June 2019, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application (CB 136).
Later that day (on 4 June 2019), the Department of Home Affairs (the “Department”) invited the first applicant to comment on information deemed to be relevant to the visa application (CB 117-121). Specifically, the Department advised as follows (CB 118):
Nomination refused
The nomination submitted to the department by [omitted] listing you as their Nominee has been refused. This means that your visa application cannot be approved.
…
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused, the department will notify you if you are eligible for merits review by the Administrative Appeals Tribunal. You will not be eligible for a refund of the VAC following refusal of your visa application.
The applicants did not respond to that invitation to comment.
On 9 July 2019, a delegate of the Minister refused to grant the applicants the visas
(CB 135-140). The delegate was not satisfied that the first applicant met cl 187.233 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the he was not the subject of an approved nomination and thus could not be granted a visa (CB 136-137). The delegate also found that, because the second and third applicants were not members of the same family unit as a person who held a Subclass 187 visa, they did not satisfy cl 187.311 in Schedule 2 of the Regulations and could also not be granted visas (CB 138 & 140).
On 26 July 2019, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (CB 151-153).
On 7 October 2020, the Tribunal invited the applicants to appear at a hearing before it on 16 November 2020 by telephone (CB 165-173). The letter sent to the applicants asked them to provide further documents, as follows (CB 167):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
We request that the requested material and other evidence are provided to us at least 7 days before the hearing date.
On 13 October 2020, the first applicant contacted the Tribunal requesting that the hearing be conducted “face to face” in the Perth office of the Tribunal (CB 174-175). Attached to that email correspondence was a completed “Response to hearing invitation” form (CB 176-178) and a letter from the first applicant to the Tribunal (CB 179) explaining why he did not consider a hearing via telephone would be appropriate for him and his family.
On 22 October 2020, the Tribunal wrote to the applicants (by email) regarding the first applicant’s request to have the hearing take place in person in the Perth Registry (CB 180-185). In that correspondence, the Tribunal explained that, because of the COVID-19 pandemic, the Tribunal would not be holding any hearings in person (except in exceptional circumstances) and that hearings would be conducted by telephone, video or a combination of those electronic means (CB 181). On that basis, the Tribunal refused the request for an in person hearing (CB 182). The Tribunal did, however, agree to postpone the hearing until 25 November 2020 (CB 183). The Tribunal also requested that the applicants provide further documents, as follows (CB 184):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a translator.
On 27 October 2020, the first applicant confirmed receipt of the correspondence dated 22 October 2020 and stated that “[f]urther clarification about hearing method will be provided after seeking some advice…” (CB 186-187).
On 19 November 2020, the first applicant wrote to the Tribunal (via email) and provided a further completed “Response to hearing invitation” form (CB 188-192). In his email, the first applicant stated (CB 188):
I would like to have confidential email address so I can send another email. Please do not arrange any Nepalese or any other interpreter as I will only attend the conversation and I would like to request you for Private hearing. I will explain you in another email. Please send me any confidential email address.
Prior to the hearing (on 25 November 2020), the first applicant wrote to the Tribunal (via email) providing a letter (CB 193-195) which outlined some of the applicants’ immigration history, expressed frustration with the visa process and asked the Tribunal to grant the applicants permanent residence (CB 194-195).
Later that day (on 25 November 2020), the first applicant appeared at the Tribunal hearing by telephone (CB 196-199). At that hearing, the Tribunal invited the first applicant to provide further information or material to it by 10 December 2020.
On 10 December 2020, the first applicant wrote to the Tribunal and requested that the Tribunal “wait until the end of May” before making a decision as the applicants were awaiting some “medical testing” (CB 200).
On 3 May 2021, the Tribunal spoke with the first applicant by telephone (CB 201). The Tribunal’s file notes record details of that conversation, as follows:
•His wife is no longer taking medications and may be expecting another child. She is doing a lot better.
•He is in the process of booking a colonoscopy, but the date is TBA.
•His son has an appointment on 28 April 2021 with the doctor.
•Once he gets doctors reports for himself, wife and child he will send them asap, he apologised for the delay.
On 25 November 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 205-215). The applicants were notified of that decision via email on 26 November 2021 (CB 203-204).
On 27 November 2021, the first applicant wrote to the Tribunal (via email) attaching a letter (CB 219-220) confirming receipt of the Tribunal’s decision and stating (CB 220):
I am quite shocked to read that I have not provided information about my consultant visit. Two times I had conversation with your office. I had informed your office about my consultant visit date. And after visiting consultant, again I had conversation with your office and informed that Consultant has referred me for colonoscopy and there is no set date for Colonoscopy. At the same time, information was provided to your office that I am waiting in queue. Your officer told me that she will inform my situation and about Colonoscopy to you Member. Also informed that we are expecting second child.
…
I kindly request you to withdraw your decision what I have received on Fri/26/11/2021. And please wait my colonoscopy result. I also kindly request you to arrange me better legal team as I do not have enough fund to seek legal advice and I do not understand legal process.
…
On 30 November 2021, the Tribunal responded to the first applicant (via email) (CB 222-223) notifying him that the Tribunal was unable to re-open the applicants’ case. Specifically, the Tribunal stated:
We received your submission dated 27 November 2021 on 29 November 2021.
The submission was forwarded to the Member and your request was carefully considered. However, the Member has decided not to reopen this case.
We made our decision in this case on 25 November 2021. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
We are not in a position to assist you any further on this issue.
On 29 December 2021, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). The first applicant deposed an affidavit in support of that application (CB 8-13). 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
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly the case when (as was the case here) the applicants appeared before the Court without legal representation.
The Tribunal’s written decision (dated 25 November 2021) is 11 pages in length and spans 50 paragraphs. The final page contains extracts from the relevant Regulations applicable in this case.
The Tribunal began by confirming that the applicants had applied for the visas on 29 January 2018 (at which time the Class RN contained only the Subclass 187 visas) and that a delegate of the Minister had refused to grant those visas because the first applicant did not meet cl 187.233(3) in Schedule 2 of the Regulations – that is, the nomination application lodged by the sponsor in relation to the first applicant had been refused. The Tribunal also explained that the first applicant sought the visa though the Direct Entry Scheme to work in the nominated position of “Office Manager” and that the applicants had sought review of the delegate’s refusal decision by the Tribunal on 26 July 2019 (at [1]-[6]).
The Tribunal then stated that:
7.On 7 October 2020 the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicants to appear before the Tribunal by telephone at a hearing to give evidence and present arguments relating to the issues arising in the case at a hearing on 16 November 2020 at 10:30am (WA time), 1:30pm (VIC time). The letter was sent by email to the applicants at the email address provided in connection with the review.
8.On 13 October 2020 the Tribunal received the applicants’ response to the hearing invitation with an email from the applicant requesting that the hearing be held as a face-to-face hearing at the Tribunal’s Registry in Perth. The applicant stated that he had not responded to the hearing invitation earlier as it went to his junk email folder and he had not seen it. A response to hearing invitation – MR Division (MR 19) form and a separate letter from the applicants accompanied the email. The request for a face-to-face hearing was made on the basis, in summary, that the applicants could not participate effectively in a hearing conducted via telephone. The letter noted that the applicants were experiencing great stress. In the hearing response the applicants stated that they were yet to make a decision as to whether they required the assistance of an interpreter to participate in the hearing and whether they would request that the Member take oral evidence at the hearing from another person nominated by them. The hearing response stated that the applicants had not been able to attach documents they intended to rely on at the hearing, due to time constraints but that they were working towards providing some documentation.
9.On 22 October 2020 the Tribunal wrote to the applicants. The letter noted that the request for the hearing to be held as a face-to-face hearing had been referred to the Presiding Member who asked a Tribunal officer to contact the applicant to discuss the reasons for the request. The discussion with the Tribunal officer had taken place on 19 October 2020. The letter explained that in accordance with the AAT COVID-19 Special Measures Practice Direction – Migration and Refugee Division (the Practice Direction), published on the AAT website, hearings are being conducted by telephone, video or a combination of telephone and video and that hearings in person would not be held except in exceptional circumstances. The letter noted that the Tribunal officer had informed the applicants that the Presiding Member is located in Melbourne and that arrangements could be made for the hearing to be held by telephone via MS Teams audio or, if the applicants preferred, by video via MS Teams from the AAT Registry in Perth from a personal or AAT device. The applicant had expressed concerns to the Tribunal officer about not being comfortable with the hearing being held by telephone or by video because of its great importance to the applicant and his family, and the applicant had advised the Tribunal officer that their personal laptop device is not of very good quality and that in any case they did not wish to have the hearing by video.
The Tribunal then explained that its letter to the applicants had confirmed that the issue it would address was whether the first applicant had an approved nomination to satisfy the requirements set out in cl 187.233 in Schedule 2 of the Regulations. The correspondence also stated that the Tribunal Member had considered conducting the hearing by telephone (with an interpreter) and had determined that this would still provide the applicants with a fair opportunity to give evidence in relation to their application. In this regard, it was noted that the Member did not consider there were exceptional circumstances to warrant the matter being heard in person (at [10]).
The Tribunal continued:
11.The letter noted that in the email received from the applicant, the applicant had referred to the shortness of time before the scheduled hearing date of 16 November 2020 and that they had not been able to provide the Tribunal with information that they wished to provide due to this. The letter advised that the Presiding Member considers it appropriate to postpone the hearing date to 25 November 2020 (10:30am (WA time)/1:30pm (VIC time)) to allow additional time for the applicants to prepare for the hearing. The letter listed the contact telephone number recorded by the Tribunal for the applicants. The invitation asked the applicant to advise if this is not the correct number or if they would prefer the Tribunal to call them on another number. The invitation set out information about arrangements for the hearing including the estimated duration of the hearing and that a Tribunal officer would contact the applicants close to the hearing time to ensure that the telephone connection is working. The invitation asked the applicant to advise the Tribunal as soon as possible if they would not be able to participate in the telephone hearing. It went on to advise the applicants that if they were not advised that an adjournment was granted, they must assume that the hearing will go ahead. The invitation stated that if the applicants did not participate in the scheduled hearing (that is, if they did not answer their phone at the scheduled date and time) the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.
The Tribunal acknowledged receipt of email correspondence from the first applicant (on 27 October 2020), in which the first applicant explained that he would provide further clarification about the hearing method after he had obtained further advice and in which had had confirmed that his contact details were correct (at [12]).
The Tribunal detailed the first applicant’s request for a “private” hearing as follows:
13.On 19 November 2020 the Tribunal received an email from the applicant requesting that they be provided with a confidential email address so that they could send another email. The applicant asked the Tribunal not to organise any interpreter on the basis that they would be the only one attending the hearing and they were requesting a private hearing. The applicant’s email stated that they would explain the reasons for the request in another email. A completed MR 19 form was attached to the applicant’s email. The MR 19 form stated that the applicant would take part in the hearing as scheduled and that the applicant did not need an interpreter to participate at the hearing. In the MR 19 from the applicant states that they agreed to a telephone hearing but noted that other arrangements would need to be made in the event of communication difficulties. The applicant went on to state that the hearing must be private and that they would explain the reasons for the request. The applicant requested to be provided with a confidential email address for them to attach documents.
The Tribunal confirmed that it had received an email from the first applicant on 25 November 2020 providing a letter containing submissions in support of the grant of the visas (at [14]). The Tribunal further confirmed that the first applicant appeared at the hearing before the Tribunal via MS Teams audio on 25 November 2020, explaining that the decision to conduct the hearing by telephone was made because that hearing was held during the COVID-19 pandemic. The Tribunal was satisfied that the first applicant had been given a “fair opportunity to give evidence and present arguments” (at [15]).
The Tribunal noted that the first applicant was invited to provide further relevant materials to the Tribunal following the hearing and that it would allow him until 10 December 2020 to do so (confirming that no decision would be made by the Tribunal before that date) (at [16]).
The Tribunal also confirmed that it had received an email from the first applicant on 10 December 2020 regarding the second applicant’s health and noted that the correspondence suggested medical consultations were scheduled for the second applicant between February and April 2021. On that basis, the first applicant requested that the Tribunal postpone making its decision until the end of May 2021 (pending the receipt of relevant medical results) (at [17]).
The Tribunal explained that, on 12 August 2021, the first applicant requested (and was provided) a letter (for Medicare purposes) but that the Tribunal had not received any further communication or documentation from the applicants (at [18]).
The Tribunal continued:
19.The Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to defer its decision-making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.
20.The Tribunal considered whether, in the circumstances of this case, information that the applicants meet the requirements for the grant of the visas is likely to be forthcoming and whether the applicants have had a fair opportunity to provide relevant information or documents already, and the significance of the information or documents to the applicants. The Tribunal had regard to the fact that the application made by the applicant for the Subclass 187 visa was refused by the Department on 9 July 2019 because the delegate concluded that the applicant had not demonstrated that there is an approved nomination. The applicant submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicant has been aware for approximately 28 months of the reasons for the refusal of his application for the visa. The applicant provided information to the Tribunal on 10 December 2020 and requested that the Tribunal defer making its decision on the review until the end of May 2021. It is now November 2021. The contact that the applicant made with the Tribunal on 12 August 2021 did not relate to the matters referred to at the hearing nor to whether the nomination linked to the applicant’s Subclass 187 visa application is approved. The applicants did not request additional time to provide information and/or documents to support the review application.
In the circumstances, the Tribunal determined that the applicants had been given a “fair opportunity to provide the relevant information” and had sufficient time to take steps to satisfy the visa criteria. The Tribunal noted that it was uncertain when or if the applicants might provide any further information and it was “not disposed to delay making a decision indefinitely” (at [21]).
In that regard, the Tribunal decided not to exercise its discretion pursuant to s 363(1)(b) of the Act to adjourn the review and concluded that the decision under review ought to be affirmed (at [22]-[23]).
Preliminary matter before the Tribunal
The Tribunal explained that on 23 November 2020, a Tribunal officer spoke with the first applicant (by telephone) about a request from him for the hearing to be conducted “privately”. It was noted that the first applicant had explained that he had made the request to “preserve the confidentiality” of parts of the first and second applicants’ circumstances (at [25]).
The Tribunal explained that it could choose to have a hearing conducted privately in certain circumstances (as set out in ss 365(2)-(3) of the Act) and, having heard the first applicant’s evidence in that regard, determined to direct that the applicants’ oral evidence in this matter be taken privately. The Tribunal noted that this decision was made, in part, because the applicants had indicated that they would only participate in the hearing if it was conducted privately (at [26]).
The Tribunal then noted that a Tribunal officer spoke with the first applicant (by telephone) and informed him that the hearing would be conducted privately and also confirmed that no interpreter had been booked. The Tribunal officer also outlined the ways in which the first applicant could provide material to the Tribunal securely (including by email, registered post or hand delivery). The first applicant confirmed that he would attend the hearing alone (at [27]).
The Tribunal noted that it had explained to the first applicant at the Tribunal hearing why it had determined that it was appropriate to take his oral evidence in private. The Tribunal also confirmed with the first applicant that he had read and understood the delegate’s decision and that the visa had been refused due to his sponsor’s nomination application being refused. The Tribunal noted that the first applicant had confirmed that he understood and had further confirmed to the Tribunal that he was not represented by a migration agent in relation to the review (at [28]).
The Tribunal then outlined the first applicant’s evidence given at the hearing as follows:
(a)until he received the hearing invitation, the first applicant was not aware that the hearing may be his last opportunity to present his case;
(b)he had consulted a “highly qualified and successful” migration agent (who he did not wish to name) and was told it may not be his last opportunity to be heard and his case may later go to the Federal Court (at [29]);
(c)the sponsor who submitted the nomination application relevant to his visa application became terminally ill and closed their business, leading to the refusal of the nomination application and, consequently, his visa application;
(d)he does not understand why his visa application was accepted before a decision had been made by the Department in relation to the nomination application or why he was not told that the nomination application had been refused before he submitted his visa application (at [30]);
(e)the migration agents he had previously consulted were not able to assist him because the nomination in relation to his visa application had been refused and he did not have an employer. The first applicant claims he was “misled” by the agents and will be taking action against them;
(f)Legal Aid was also unable to assist him as they do “not have a physical office” and they were “not accepting cases” (at [31]);
(g)the first applicant had been in Australia for 12 years, was about to graduate and write a book and was trying to undertake a PhD;
(h)he and his family ought to be granted visas “as a matter of humanity” on the basis of his wife’s mental health condition and his son’s asthma (though both conditions are improving because of the good medical system in Australia);
(i)he left a good job to come to Australia and he and his family will be “in limbo” if not granted permanent residence;
(j)news reports indicate that refugees who came to Australia by boat had been granted Australian citizenship and, while he thinks that is a good thing, the government has “not been fair towards him and his family”. In that regard he says that the government did not object to his family coming to Australia but that they now object to granting them visas, despite the applicants working hard and paying taxes in Australia (at [32]);
(k)he did not think it would be a problem for him to find another job, he would still need to submit a further visa application and he (and those like him coming from overseas) do not understand the legal requirements for the visa; and
(l)he was told that the family’s visa applications were refused on the basis of the refusal of the nomination application but was unaware that because the sponsor’s business had closed down and he had no employer, the visas could not be granted. In this regard, he claims the guidance he received “was very poor” (at [33]).
The Tribunal acknowledged that the first applicant was distressed by his situation and had raised important concerns. However, it was explained, the nomination application had nonetheless been refused (at [35]) and that cl 187.233(3) in Schedule 2 of the Regulations requires that there is an approved nomination in place. The Tribunal accepted that the refusal put the first applicant and his family in a “most unfortunate position” but noted that it had no discretion to waive the requirement that the related nomination application be approved (at [36]).
In this regard, the Tribunal determined as follows:
37.The requirements of cl 187.311 of Schedule 2 to the Regulations must be met in relation to the applications made by the second named applicant (the applicant’s partner) and the third named applicant (the applicant’s son) for the Subclass 187 visas. Clause 187.311 requires the second named applicant and third named applicant to be a member of the family unit of a person (in this case [the first applicant]) who holds a Subclass 187 visa. [the first applicant] does not hold a Subclass 187 visa. This means that cl 187.311 is not satisfied.
38.The Tribunal notes that it is open to [the first applicant] to lodge another visa application. However, the applicable criteria for the grant of the Subclass 187 visa application that [the first applicant] made on 29 January 2018 cannot be satisfied by the lodgement of any subsequent visa application.
Nomination of a position
The Tribunal then outlined the legislative requirements (as set out in cl 187.233 in Schedule 2 of the Regulations) relevant in this matter, noting, in particular, that the position (to which the visa application relates) must be the subject of an approved nomination (at [39]-[40]).
The Tribunal explained that the first applicant had applied for the visa on the basis of a nomination lodged by the sponsor relating to the first applicant. That nomination application was lodged on 25 January 2018 and refused by a delegate of the Minister on 4 June 2019. Consequently, the applicants’ visas were refused on the basis that there was no approved nomination (at [41]).
Noting that the sponsor had not sought review of the delegate’s decision refusing the nomination application (made on 4 June 2019), the matter (being the nomination application) had been finally determined and there was no approved nomination in relation to the first applicant. Consequently, the Tribunal noted, the requirements set out in cl 187.233 in Schedule 2 of the Regulations had not been satisfied (at [42]-[43]).
The Tribunal also found that, because the second and third applicants were not members of a family unit of a person who held a Subclass 187 visa (and there was no evidence to suggest that they met the primary visa criteria themselves), the second and third applicants did not meet cl 187.311 in Schedule 2 of the Regulations (at [44]).
Noting that the applicants had only sought to satisfy the Direct Entry stream of the visa and those requirements had not been met (and no claims had been made in respect of other visa streams), the Tribunal determined that the delegate’s decision under review must be affirmed (at [45]).
Ministerial intervention pursuant to s 351 of the Act
The Tribunal noted that the first applicant had asked for a favourable decision on a “humanitarian” basis. The Tribunal explained that it was unable to make a decision that was favourable to the applicants without cl 187.233(3) in Schedule 2 of the Regulations being satisfied. However, the Tribunal noted that it could give consideration to referring the matter to the Department for consideration pursuant to s 351 of the Act (under which the Minister has discretion to substitute the Tribunal’s decision with another, more favourable, decision if it is in the public interest to do so). The Tribunal considered the request for a favourable decision on a “humanitarian” basis to essentially be a request for referral of the matter for consideration by the Minister under s 351 of the Act (at [46]).
The Tribunal outlined the first applicant’s “compassionate grounds” (as set out in the letter from the applicants received on 25 November 2020) as follows (at [47]):
(a)the first applicant did not understand why, given his postgraduate studies and English proficiency, he had not been granted permanent residency (particularly when students with less study and inferior English had been);
(b)it was unfair to deny him (and his family) permanent residency when ABC News had reported people arriving by boat in Australia had been granted Australian citizenship;
(c)changing laws in Australia make it difficult to follow, particularly regarding the English testing requirements. Further, laws surrounding permanent residency quotas change but laws relating to international students remain the same. In that regard, the first applicant highlighted that Australia’s second highest revenue is generated from international students who have suffered during the COVID-19 pandemic and who had not received the same incentives Australians did during that time;
(d)the first applicant, after being in Australia for over 12 years, feels as though he has lost his career and has “a massive loan”;
(e)the second applicant has severe depression, greatly impacting their family;
(f)the second applicant’s health is improving but neither the first nor the second applicant had any issues before coming to Australia and now, the first applicant has Crohn’s disease, the second applicant has depression and the third applicant suffers from asthma.
Having assessed the information above, the Tribunal ultimately found as follows:
48.The Tribunal acknowledges that the applicants are in an unfortunate position and that the satisfaction of the requirements for the approval of the nomination application are not within their control. The Tribunal is of the view that the fact that the applicant has Crohn’s disease, the second named applicant has depression and the third named applicant has asthma, all of which may be exacerbated by being required to leave Australia, is not sufficiently unique or compelling to warrant the Tribunal referring the matter, after noting that it was not suggested that they could not obtain treatment for the conditions overseas if they have to depart Australia. The Tribunal acknowledges and gives some weight to the fact that the applicants have lived in Australia for 12 years, have undertaken education in Australia, have contributed to Australia financially and that relocating from Australia would adversely affect them financially. However, the Tribunal is not satisfied that the evidence demonstrates that the applicants’ circumstances render their situation sufficiently unique and exceptional to justify referring the matter.
Having considered the applicants’ circumstances and the relevant guidelines set out in the Department’s Procedures Advice Manual, the Tribunal decided not to refer the matter but noted that the applicants could still make a direct request in that regard (at [49]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [50]).
Application to this Court
In the application for judicial review filed by the applicants on 29 December 2021 (CB 1-7), the applicants raise one ground of review as follows (CB 4):
1.Tribunal did not give me a fair opportunity to provide documents that we discussed providing.
On 29 December 2021, the applicants filed an affidavit (deposed by the first applicant on 29 December 2021) in support of the applicants’ judicial review application (CB 8-12). Annexed to that affidavit was a copy of the Tribunal’s decision dated 25 November 2021 (CB 205-215).
On 15 March 2022, 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. No further materials were filed by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 29 December 2021, a Court Book numbering 225 pages (marked as Exhibit 2) and written submissions filed by the Minister on 10 August 2022.
The applicants appeared before this Court on 24 August 2022. The Court confirmed with the first applicant that he would be speaking on behalf of this family and also confirmed with him that the applicants had received a copy of the Court Book and the Minister’s written submissions.
Adjournment Request
The Court notes that, on 22 August 2022, the first applicant contacted chambers via email and requested an adjournment of the hearing, stating (without alteration):
We kindly request that you extend time for upcoming hearing.
In this email, we have attached, Medical Certificate and request letter.
Attached to that email was a letter from the first applicant and a medical certificate issued by [omitted] Hospital (relating to the second applicant). In the letter, the first applicant:
(a)advised that his wife (the second applicant) and their infant daughter (who is not a party to this proceeding) had experienced some medical issues requiring hospitalisation between January and May 2022;
(b)confirmed that the health of the second applicant and their daughter had improved and that the second applicant had commenced working as an Assistant Nurse a few weeks ago;
(c)advised that he had undertaken a colonoscopy in June 2022;
(d)expressed his “happiness for the health development” for himself, the second applicant and their daughter;
(e)explained that his family had experienced a very difficult year and claimed that they had been unable to prepare for the hearing on the basis of “health reasons” and the “stressful situations” that they had experienced;
(f)asked that the hearing be adjourned to February 2023 to allow the family to give their son (the third applicant) a “stress free holiday at … Christmas time”;
(g)asked that the hearing be “private” because his wife had “gone through mental health issues” and the applicants did not want the hearing to be public; and
(h)asked that the applicants be allowed to appear in person at the hearing.
Later that day, also on 22 August 2022, chambers requested that the Minister’s representative advise its position in relation to the adjournment request by 12.00pm on 23 August 2022.
On 23 August 2022, chambers received an email from the Minister’s representative advising that the Minister opposed the request for an adjournment because:
(a)the supporting medical letter provided by the applicants is inadequate to explain why the applicants are prevented (by illness or otherwise) from participating in the hearing on Wednesday: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559;
(b)there is no justification why the applicants require a 6 month adjournment, or what it is hoped will be achieved in the 6 month adjournment. For the reasons explained in the Minister’s outline of submissions, the application before the Court is futile;
(c)the matter has been on foot for over 8 months. The Court has limited resources and multiple matters waiting to be heard; and
(d)the matter can proceed fairly via Microsoft Teams. To the extent there are any issues, the Court can make an assessment to adjourn the proceedings at that time. The Minister proposes to refer the Court to Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726 at [48]-[54].
Correspondence from the Minister’s representative also stated:
The Minister notes that it remains open for the applicant to make a request for Ministerial Intervention under s 351 of the Migration Act 1958 (Cth).
In order to properly assess the adjournment request, chambers notified the parties (also on 23 August 2022) that the matter would be listed for a directions hearing and a final hearing on 24 August 2022. The parties were advised that, in the event the Court determined that the matter could proceed, the final hearing would go ahead immediately following the directions hearing. Similarly, in the event that the Court did not consider the matter should proceed to a final hearing, the hearing would be adjourned to a later date.
Insofar as the applicants asked that they be given the right to appear in person and for the hearing to be “private”, the Court notified the applicants that it would implement procedures to address the applicants’ concerns in that regard.
Relevantly, the Court advised that it would:
(a)arrange for the applicants to be assigned pseudonyms to “anonymise” them (that is, to ensure that the applicants are not able to be identified);
(b)issue a new proceeding number to avoid any links to the applicants’ names referenced in the previous proceeding number;
(c)close the previous file and ensured future documents (if any) would be filed using the applicants’ pseudonyms and the new proceeding number;
(d)ensure that the judgment would be published using the applicants’ pseudonyms and the new file number to ensure that the applicants are not able to be identified;
(e)make arrangements for the hearing to take place in person at the Court in Perth;
(f)ensure that the Court listings were suppressed and not be published on the Court’s website or in any Court lists; and
(g)“close” the court room. That is, persons who were not a party to the proceeding or their legal representatives or Court staff would not be allowed to enter the court room.
On the evening of 23 August 2022, the first applicant again emailed chambers with a further letter and a medical certificate from “[omitted] Dental”. The email stated:
•The email is attached with another request and Medical evidence.
•I will meet you in person tomorrow.
•We greatly appreciate for opportunity.
The attached letter explained that the applicants still needed an adjournment until February 2023 as the first applicant had had a tooth removed “which was causing him pain and making it difficult for him to speak”. The first applicant explained that, in the event the Court was not minded to adjourn the matter to February 2023, the applicants would instead request that the matter be re-listed at the end of November or the beginning of December 2022.
The correspondence between the Court and the parties regarding the adjournment request were (together) tendered and referenced as Exhibit 1.
At the directions hearing in this matter, the Court explained to the first applicant that, when determining whether or not an adjournment ought to be granted, the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for that request;
(a)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(b)any prejudice to the (first) respondent that cannot be mitigated by costs; and
(c)modern principles of case management (including the avoidance of undue delay) and wastage of public resources;
(see: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
Against that background, the first applicant was asked to explain to the Court the basis upon which an adjournment was sought. The first applicant stated that he and his family “had suffered a lot” which meant he was unable to prepare for the hearing. The first applicant explained that he thinks he can find employment but that his priority before was the health of his wife and his children. The first applicant also explained that he needed more time to get the assistance of an expert who can lead him in the right way and he can then “do something” in relation to his visa.
Ms Groves (solicitor for the Minister) gave oral submissions opposing the adjournment request on the basis that the case had been on foot for eight months and, while the family had clearly had substantial health issues, those issues were first brought to the attention of the Tribunal in November 2020 and there was nothing in the medical evidence provided which explained why the first applicant could not present his case. Further, there was no evidence to suggest that adjourning the matter for a period of six months would “make any difference” in that regard.
Ms Groves also raised a futility argument, noting that the sole question before the Tribunal was whether the first applicant was the subject of an approved nomination. He was not and the first applicant does not appear to dispute that that was the case. On that basis, Ms Groves submitted that there was no scope for any Tribunal to issue the applicants with the visas.
While the Court is sympathetic to the concerns of all applicants who appear before this Court without legal representation and who have experienced medical issues in the past, there was no evidence before the Court to suggest that the applicants were medically unfit or unable to speak or participate in the hearing for any reason on the date listed. Further, counsel for the Minister had prepared for the hearing, prepared and filed detailed written submissions and attended the hearing prepared to proceed with the hearing of this matter. Finally, had the matter been adjourned, there would be a significant period of time before the matter could be brought back before the Court.
Considering the circumstances of this matter and the (limited) evidence provided by the first applicant, the Court determined that it would not be in the interests of the administration of justice to adjourn the hearing.
Substantive hearing
Noting, however, that the first applicant (who, as outlined above, spoke on behalf of his wife and child) was unrepresented, the Court gave him an 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 first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include (but are not limited to) the following types of “mistakes”:
(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 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.
The first applicant spoke clearly and with determination. His submissions were structured. He explained to the Court that the Tribunal member had asked him to provide any medical certificates and evidence to them. The applicant says that he called the Tribunal twice to say that he was still waiting for his colonoscopy (which he claims was only performed in June 2022) and claimed that each time he spoke with the Tribunal, he asked that the information he provided be passed on to the Member.
The first applicant also claimed that when he was speaking with the Member (presumably at the Tribunal hearing), he kept having to ask the Member to repeat what was being said and he thought that they “had a really hard time understanding each other”. The first applicant also thought that this may have led to “communication issues”.
These issues will be considered by the Court below.
Consideration
Ground of review
For ease of reference, the applicants’ sole ground of review provides:
1.Tribunal did not give me a fair opportunity to provide documents that we discussed providing.
To the extent that the applicants claim that they were not given an opportunity to provide relevant documents to the Tribunal, this fails on a factual level.
As outlined above, on 7 October 2020, the Tribunal invited the applicants to attend a hearing before it on 16 November 2020 (CB 165-173). In that hearing invitation, the Tribunal also requested that the applicants provide the following information (CB 167).
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
We request that the requested material and other evidence are provided to us at least 7 days before the hearing date.
In response, the applicants provided a letter to the Tribunal (via email on 13 October 2020) explaining why they considered that the hearing should proceed “face to face” (CB 174-179).
On 22 October 2020, the Tribunal agreed to reschedule the hearing to 25 November 2020 (CB 180-185). In that correspondence, the Tribunal requested that the applicant provide the following information (CB 183-184):
Please provide all additional documents including witness statements, outlines of evidence and written submissions that you intend to rely on to establish that you meet the criteria for the visa to the Tribunal at least seven days before the hearing. Please refer to the COVID-19 Special Measures Practice Direction for information on lodging documents prior to the hearing (see sections 6.11 to 6.13 attached).
…
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a translator.
In response, the applicants provided a further letter to the Tribunal (on 25 November 2020), which outlined some of the applicants’ immigration history, expressed frustration with the visa process and asked the Tribunal to grant the applicants permanent residence (CB 194-195).
At the hearing (also on 25 November 2020), the Tribunal allowed the first applicant additional time following the hearing (to 10 December 2020) to provide further relevant information or documents to the Tribunal in support of his application (CB 208, at [16]).
On 10 December 2020, the first applicant contacted the Tribunal (by email) to advise that the second applicant’s medical consultations were scheduled between February and April 2021 and asked the Tribunal to postpone making its decision until the end of May 2021 (CB 208, at [17]).
On 3 March 2021, the first applicant spoke with a Tribunal officer and provided an update regarding his family’s medical conditions. Tribunal notes record details of that telephone conversation as follows (CB 201):
PRA rang back following a missed call.
AS asked if there are any updates re medical reports for him and his family.
PRA advised:
•His wife is no longer taking medications and may be expecting another child. She is doing a lot better.
•He is in the process of booking a colonoscopy, but the date is TBA.
•His son has an appointment on 28 April 2021 with the doctor.
•Once he gets doctors reports for himself, wife and child he will send them asap, he apologised for the delay.
I said I would note this for the Member.
On 12 August 2021, the first applicant contacted the Tribunal to request a letter for Medicare purposes (which was provided). The Tribunal explained, as at the date of its decision, that no further communication or documents were received from the applicants (CB 208, at [18]).
The dispositive issue before the Tribunal was whether or not the first applicant satisfied cl 187.233 in Schedule 2 of the Regulations. This was the same issue that arose before the Department and the reason for which the delegate refused to grant the applicants the visas. The applicants were thus on notice that this was the central issue from the date of the delegate’s decision (that is, as at 9 July 2019) (CB 135-140).
The applicants did not provide any material to the Tribunal to confirm that the first applicant had a valid nomination or that the decision in relation to the sponsor’s nomination application was being reviewed. Instead, the first applicant sought additional time on the basis of medical conditions and test results which he claimed would be forthcoming.
The Court also notes that the Tribunal hearing in this matter took place on 25 November 2020. The Tribunal allowed the applicants a full year to provide further documentation and information in relation to their review application (only making their decision in this matter on 25 November 2021). Further, as noted above, the applicants were on notice of the dispositive issue from 9 July 2019 (nearly two and a half years prior to the Tribunal making its decision).
In the context of this matter, it cannot be said that the applicants were not afforded an opportunity to provide relevant documents to the Tribunal.
The High Court in Li stresses that there is 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.
That is arguably what the Tribunal did here. The applicants were initially provided additional time following the hearing (to December 2020) to provide additional relevant information. The applicants then requested that the Tribunal again delay its decision until May 2021. The Tribunal did so. There was, however, still no relevant material forthcoming from the applicants and finally, on 25 November 2021, the Tribunal affirmed the decision refusing to grant the applicants the visa.
Essentially, the Tribunal determined that in this case, “enough was enough”, ultimately finding that the applicants had been given sufficient opportunities to provide relevant material to the Tribunal.
The Court also notes that any medical information or results that the applicants might have provided to the Tribunal could not have changed the Tribunal’s decision in this matter, no matter how compelling. That “evidence” simply was not relevant to the issue at hand. The only question before the Tribunal in this matter was whether the applicant was the subject of an approved nomination. In circumstances where the Tribunal had correctly determined that the first applicant was not the subject of an approved nomination (and where the decision refusing the nomination application had not been appealed), the Tribunal had no choice but to affirm the decision under review: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh”).
The Court is satisfied that the applicants were given a fair opportunity to provide relevant documentation.
No error arises in relation to the applicants’ sole ground of review, read broadly.
Applicant’s oral submissions
In the first applicant’s oral submissions before this Court (on 24 August 2022), he claimed that he had some “communication issues” when speaking with the Tribunal Member (presumably at the Tribunal hearing, which was conducted by telephone using MS Teams audio).
To the extent that the first applicant takes issue with the hearing being conducted by telephone, the Court notes that there is nothing that prohibits the Tribunal from conducting hearings by telephone: Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81 at [16]; Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 at [28]; SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]; MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 at [30]; SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49].
Indeed, s 366 of the Act expressly allows for the giving of evidence before the Tribunal by telephone, providing as follows:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
…
The Court notes that the Tribunal hearing in this matter was held during the COVID-19 pandemic and the applicants were notified of the Tribunal’s arrangements during that time in its invitation to the applicants dated 7 October 2020 (CB 165-173).
In correspondence from the first applicant dated 13 October 2020, the applicants sought for the Tribunal hearing to be conducted “face to face” in Perth (CB 174-179) on the basis that it would be “difficult” for the applicants to attend over the phone and noted that the applicants were already experiencing a “stressful time” (CB 179).
The Tribunal considered the request and (as set out both in its letter to the applicants dated 22 October 2020 (CB 180-185) and its reasons at [9]-[10]) was not satisfied that there were “exceptional circumstances in this case” to justify holding an in person hearing.
The first applicant attended the Tribunal hearing as scheduled on 25 November 2020 by telephone (CB 196-199). There is no evidence before the Court to suggest that the first applicant raised any concerns regarding the quality of the phone connection or any difficulties in understanding the Tribunal Member, either at the Tribunal hearing or in the correspondence between the first applicant and the Tribunal following the hearing.
The Court was not provided with a transcript of the Tribunal hearing and there is no evidence in the Court Book (or otherwise before the Court) that suggests that the first applicant had any difficulties with his appearance before the Tribunal by telephone. Nor is there any evidence before the Court to suggest that the first applicant was prejudiced by attending the Tribunal hearing by telephone.
No error arises in this regard.
Otherwise
Whether the Tribunal erred by failing to revoke its decision
As outlined above, on 25 November 2021 (at 1.06pm), the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 205-215).
The Court notes that the first applicant in this matter contacted the Tribunal after receiving that decision and requested that the Tribunal “withdraw [its] decision” (CB 220).
This Court recently considered when a Tribunal’s written decision is taken to have been made in its decision of Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673 (at [77]-[79]). That explanation applies equally here and is repeated below.
Section 368 of the Act sets out when a written decision is taken to have been made by the Tribunal. At the time of the Tribunal’s decision (on 25 November 2021), s 368 of the Act provided as follows:
368 Tribunal’s decision and written statement
Written statement of decision
…
How and when written decisions are taken to be made
(2)A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A)The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
As outlined in s 368(2)(b) of the Act, the Tribunal’s decision here was taken to have been made at 1.06pm on 25 November 2021 (being the day and time the written statement was made by the Tribunal).
Once that decision had been made and the written statement produced, the Tribunal had no power to vary or revoke its decision: s 368(2A) of the Act.
Here, at the time of the first applicant requested the Tribunal revoke its decision, the Tribunal’s decision was already taken to have been made. The Tribunal was thus unable to vary or revoke its decision upon receipt of the first applicant’s request to do so.
No 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 (and other similar matters), visas of this sort are, in effect, “tied” to the sponsor and the approval of that related nomination application. It is a requirement 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”.
Here, the circumstances are such that, even if the Court found that there was a jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh. This is because the Tribunal would, again, find that the first applicant did not meet cl 187.233 of Schedule 2 of the Regulations as he is not the subject of a valid nomination.
There is no evidence before this Court to suggest that the sponsor has sought to challenge the nomination decision. In fact, the Tribunal referenced evidence given by the first applicant at the hearing in that regard (at [30]), explaining that “the [sponsor] who made the nomination application related to [the first applicant’s] visa application became ill with a terminal condition and closed their business down”.
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. He 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 remittal of the matter would be futile.
Ministerial interventon
The circumstances of this case are most unfortunate. The first applicant, in good faith, applied for the visa on the basis of a nomination application made by a sponsor. Unfortunately, the sponsor became terminally ill and closed her business. This resulted in the nomination application (and, consequently, the visa application) being refused.
During this time, as well as dealing with the stress of a visa application and refusal, the first applicant was also dealing with his own medical issues. He was also supporting his wife (who was herself suffering from serious health issues) and struggling with the premature birth of their second child.
The first applicant pleaded with the Court for a favourable outcome for himself and his family. The Court’s jurisdiction is, however, limited and, without evidence of jurisdictional error on the part of the Tribunal, the Court cannot assist the applicants.
The Court does, however, stress that the circumstances here are compelling. While the Court has no power or ability to compel (or indeed ask) the Minister to exercise one of his discretionary powers, the Court notes that the Minister does have the option of doing so.
Conclusion
The application for judicial review filed by the applicants on 29 December 2021 fails to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 August 2022
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