Danieal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 43
•8 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danieal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 43
File number(s): MLG 1851 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 8 February 2022 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – refusal to grant the applicants a Temporary Business Entry (Class UC) (Subclass 457) visa – Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) – applicant not the subject of an approved nomination – whether relief futile – application dismissed. Legislation: Migration Act 1958 (Cth), ss.140GB, 359A, 359AA, 363
Migration Regulations 1994 (Cth), rr.457.223, 457.321, 458.223
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)Cases cited: BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ;[2013] HCA 18
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 ;[2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Place: Melbourne Applicant: In person Solicitor advocate for the First Respondent: Ms Richardson Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1851 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD NIAMUL MUHID DANIEAL
First ApplicantAFSANA AKTER TANIA
Second Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application filed 24 August 2017 is dismissed.
3.The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $5000.
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 (r17.05(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 SYMONS
INTRODUCTION
The applicants in this matter seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 27 July 2017. The Tribunal affirmed a decision made by a delegate of the first respondent (“the Minister”) refusing to grant the applicants a Temporary Business Entry (Class UC) (Subclass 457) visa (“the visa/visas”). Relevantly, the Tribunal determined that the first applicant did not meet the requirements of cl. 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because he was not the subject of an approved nomination.
BACKGROUND
The first applicant is a citizen of Bangladesh. The second applicant is his wife. She is also a citizen of Bangladesh.
The applicants applied for the visas the subject of this proceeding on 13 August 2015. The first applicant, who was the primary applicant, relied on a nomination by Bumo Sydney Pty Ltd (“Bumo”) for the position of cook.
On 25 August 2015 and 16 October 2015, the delegate sent the primary applicant a request for more information inviting him to provide evidence of a Trades Recognition Australia (“TRA”) 457 visa skills assessment.
On 8 December 2015, the applicants’ representative emailed the delegate stating that the primary applicant was unable to complete the skills assessment because Bangladesh was not on the list of countries for the visa and requested that the delegate make a decision on the information before it.
On 5 January 2016, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that the primary applicant had the skills necessary to perform the nominated occupation, as required by cl. 457.223(e) of Schedule 2 to the Regulations.
The delegate did not address whether the primary applicant was the subject of an approved nomination (which, as discussed below, would prove to be the dispositive issue before the Tribunal).
On 12 January 2016, the applicants applied to the Tribunal for review of the delegate’s decision.
On 20 April 2017, the Tribunal requested the applicants to provide information to the Tribunal by 4 May 2017.
The request provided:
You are requested to provide the following information in writing:
•Information to demonstrate you are the subject of an approved business nomination which has not ceased as required by cl. 457.223(4)(a) of the Regulations; or
•Information to demonstrate you will meet this requirement in the near future – for example by providing information to demonstrate that you have the current support of an approved business sponsor and that a nomination application for you is currently being processed by the Department of Immigration and Border Protection.
Please note: Under the Regulations, the approval of a business nomination for a Subclass 457 visa ceases after 12 months (if it has not already ceased for another reason): r. 2.75. This means that nominations are valid for a maximum of 12 months and a new business nomination application by an approved business sponsor to the Department of Immigration and Border Protection will be required if a nomination has not been approved in the last 12 months. (CB 112)
On 22 June 2017, the primary applicant appeared before the Tribunal to give evidence and present arguments.
On 30 June 2017, the Tribunal invited the applicants to comment on or respond to information under s 359A of the Migration Act 1958 (Cth) (“the Act”) being that there was no current approved nomination by a standard business sponsor for the occupation of cook and no information that there was an outstanding nomination for approval by an agreed standard business sponsor (CB 127). The applicants were informed that if the Tribunal found this information to be correct it would mean that the applicants did not meet the requirements of cl. 457.223(4)(a) of the Regulations and the Tribunal might affirm the decision of the delegate to refuse to grant the visas.
In the same correspondence, the applicants were also invited to provide further documentation including “any documentation supporting a TRA assessment or enrolment for such assessment”. The comments or response or information were sought by 14 July 2017.
On 14 July 2017, the applicants, via a registered migration agent, provided a written response directed at “demonstrating that the qualifications and experience of the nominee identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the ANZSCO” (CB 129-130). In the same document, the migration agent also sought an extension of time to complete a TRA skills assessment, to enable a new employer to apply for a new nomination for the occupation of cook and for the Tribunal to otherwise consider the skills requirement met without the need for any further assessment of the review applicant. The response attached a number of documents, including a letter from the manager of Rizq restaurant dated 5 June 2017 who stated that he had made an offer to sponsor the primary applicant for his 457 visa, “provided he meets all the visa requirements” (CB 135).
On 27 July 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the visas. The Tribunal was not satisfied that the primary applicant was the subject of an approved nomination and, as such, did not satisfy cl. 457.233(4)(a) of the Regulations. The second applicant, accordingly, did not satisfy cl. 457.321 of the Regulations.
On 24 August 2017, the applicants, who remained self-represented throughout, applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain relief from this Court, the applicants must show that the decision of the Tribunal is affected by jurisdictional error.
THE TRIBUNAL DECISION
The Tribunal’s decision is 11 pages long and spans 62 paragraphs. Two pages comprise an extract of cl. 457.223 of Schedule 2 of the Regulations.
The Tribunal first identified the type of visa the applicants had sought (CB 157 [1]-[3]).
The Tribunal noted that the delegate had refused to grant the visa on the basis that the primary applicant had not provided evidence of a successful outcome in a TRA migration skills assessment for the nominated occupation of cook (CB 157[4]).
The Tribunal then summarised the procedural history of the proceeding, including that a request had been made for an extension of time to obtain a skills assessment and to apply for a new nomination for the occupation of cook from a new employer (CB 157 [5]-[9]). The Tribunal recorded that it had considered the request but declined to extend any further time for a skills assessment (CB 157 [10]).
The explanation for the refusal to extend time first addressed the opportunity to apply for a new business sponsor. This explanation and consideration of the primary applicant’s claims was organised as follows.
The Tribunal found that the primary applicant had conceded at the hearing that he did not have an approved nomination by a standard business sponsor but said he would obtain one (CB 158 [13]).
The Tribunal found that at the time of application in August 2015, the applicant was the subject of a nomination by Bumo, however this nomination had since expired and had not been renewed (CB 158 [14]).
The Tribunal found that the applicant had provided a letter from Rizq restaurant dated 5 July 2017, stating that it had “made an offer to sponsor his 457 visa, provided he meets all the visa requirements”. The Tribunal found that there was no indication when such an application for an approved sponsorship might be made or that such application was pending and might be successful, and no application for a sponsorship was on foot (CB 158 [15]-[16]).
The Tribunal was not satisfied that there was a nomination by a prospective employer for a standard business sponsorship that was pending or about to be made. It found that the prospective employer’s offer was conditional on the applicant meeting “all visa requirements”. It found that one of the requirements of the visa included that there was a nomination of an occupation in relation to the applicant that had been approved under s 140GB of the Act. It found it would be futile to allow the applicant further time to allow the proposed sponsor to put forward a sponsorship application, as the condition advanced by the proposed sponsor could not be met. It therefore declined the applicant’s request for further time (CB 158 [16]-[18]).
Consequent upon these findings, the Tribunal found that as there was no approved nomination of an occupation relating to the applicant by a standard business sponsor, the applicant did not meet the requirement specified in cl. 457.223(4)(a) of the Regulations (CB 158 [19]).
The Tribunal then addressed the requirements of cl. 457.223(4)(da) and cl. 457.223(4)(e) of the Regulations.
The Tribunal noted that the applicant had been asked to obtain a skills assessment from TRA by the Department on 25 August 2015 (CB 159 [21]).
The Tribunal then, between [21] and [43], recorded matters concerning the applicant’s history of work experience in Australia, skills assessment requests and efforts to seek sponsorship. In this context, the Tribunal noted (amongst other things that) (CB157- 162):
(a)On 25 August 2015, the primary applicant had been asked to obtain a skills assessment from TRA by the Department ([21]).
(b)The primary applicant told the Tribunal that towards the end of 2011 he had enrolled in a Bachelor of Accounting at King’s Own Institute where he finished one semester and then enrolled at Holmes Institute, from which he received a Bachelor of Professional Accounting in about June 2016 ([27]).
(c)During the hearing, the Tribunal had informed the applicant, pursuant to s 359AA of the Act that it may be a reason his application might be refused and the decision of the Department affirmed, if he did not have a standard business sponsor with an approved nomination that had not ceased ([29]).
(d)Following the Tribunal hearing, the primary applicant had provided on 14 July 2017 evidence of having submitted on 13 July 2017 a request for assessment to William Angliss Institute. There was no confirmation however that the proposed assessment would proceed, unless the applicant submitted the documents requested by the Institute on 13 July 2017 ([31]).
(e)The applicant said at the hearing that he had not worked as a cook since he left Bumo towards the end of 2015, early 2016 and he was now working for a Melbourne consultancy firm as an accountant and had been doing so since about July or August 2016 in a full-time role ([34]-[35]).
(f)At the end of the hearing, the primary applicant had proposed that he be allowed a further 60 days in order to complete an independent TRA assessment for the occupation of cook and then find a suitable and approved standard business sponsor. The applicant confirmed that he wanted to pursue a professional career in accounting, notwithstanding he was seeking approval for the occupation of cook ([40]).
(g)The Tribunal noted that it agreed to provide the applicant with a 14 day extension before making any decision, to enable the applicant to show he had found an approved sponsor and enrolled for a TRA assessment. However, the responsive submission and material from the applicants’ agent did not include an application for an enrolment for a TRA assessment but instead reproduced the exchange of emails referred to at [29(d)] above, which included a request for further documentation to verify the claims made in the primary applicant’s CV ([41]-[43]).
The Tribunal found that the request for further time to complete a skills assessment should be declined given the time that had already elapsed since the first request letter of 25 August 2015 for the skills assessment and in circumstances where the original sponsor had not proceeded with the sponsorship and there was no standard business sponsor in place (CB 162 [44] and CB 163 [54]).
The Tribunal found that the earlier issue of a lack of a TRA assessment had been overtaken by the lapse in sponsorship (CB 163 [55]). The Tribunal found that there was no evidence before the Tribunal that the primary applicant was the subject of an approved nomination by a standard business sponsor that had not ceased, and accordingly the primary applicant did not satisfy cl. 458.223(4)(a) of the Regulations (CB 163-164 [56]-[57]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 24 August 2017 contains the following grounds.
1.The Tribunal erred in interpreting the meaning of “requirements” of the prospective sponsor.
Particulars
A prospective employer “Rizq” in a letter dated 5 June 2017 stated that it has “made an offer to sponsor his 457 visa, provided he meets all the visa requirements”. The Tribunal erred in concluding that the proposed sponsor’ letter was conditional to the applicant meeting all requirements for the grant of the visa prior to an actual sponsorship application was made.
2.The Tribunal erred in not grant the applicant an extension of 60 days as requested.
Particulars
The applicant requested an extension of time of 60 days so that the proposed sponsor could lodge an application for sponsorship and also the skill assessment could have been completed. The Tribunal declined that request on the basis of incorrect assumption as described in the particulars of ground 1 above.
3.The Tribunal failed to afford procedural fairness and natural justice.
Particulars
Particulars of grounds 1 and 2.
On 2 May 2018, the Court made orders by consent requiring the applicants to file and serve any amended application and written submissions 28 days before the final hearing. The applicants did not file any material responsive to these orders.
On 15 November 2021, the Minister filed written submissions dealing with the pleaded grounds of review.
The matter came before me for final hearing on 29 November 2021.
On that day, the applicants appeared unrepresented and with an interpreter in the Bengali language. The Minister was represented by solicitor advocate, Ms Richardson.
In accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], at the commencement of the hearing I invited the applicants to tell me what it was that they would like to say, in support of their application, to the effect that the Tribunal was wrong in its decision to affirm the decision of the delegate to refuse them the visas.
The primary applicant made submissions to the Court. The main point that emerged from these submissions was that when the request for a skills assessment had been first made by the Department (in August and October 2015), the primary applicant had been informed by the assessment body that the requirement for an assessment was not mandatory at that time and that his country (Bangladesh) was not identified on the list of countries.
In oral submissions, at my request, the Minister’s representative identified comprehensively the arguments that had been articulated in the Minister’s written submissions as to why the decision of the Tribunal was not affected by jurisdictional error.
In relation to ground one, the Minister understood the applicants to allege that the Tribunal had erred in concluding that the offer of sponsorship by the primary applicant’s employer (Rizq restaurant) was conditional on the primary applicant meeting all requirements for the grant of the visa prior to an actual sponsorship application being made. This was said to result from the Tribunal misinterpreting the statement contained in the prospective employer’s letter that it had made an offer to sponsor the primary applicant’s visa “provided he meets all the visa requirements”.
The Minister submitted that this ground must fail in circumstances where the applicants had not explained how the Tribunal had erred in its understanding of the letter or how any error could be material.
The Minister noted that the Tribunal had acknowledged the letter from Rizq restaurant but had found that there was no indication when any application for an approved sponsorship might be made or that such application was pending and might be successful, and no application for a sponsorship was on foot (CB 158 [15]-[16]).
The Minister characterised ground one as, in essence, a complaint about the Tribunal’s consideration and assessment of the evidence advanced by the applicants and the inadequacy of that evidence. The Minister submitted that the Tribunal’s finding that the primary applicant was not the subject of an approved nomination by a standard business sponsor that had not ceased, and did not therefore satisfy cl. 457.223(a), was clearly open to it and was in fact, the only finding open to the Tribunal on the material before it.
In relation to grounds two and three, both of which allege error in the decision of the Tribunal to decline the applicants’ request for an extension of time to obtain a TRA skills assessment and to obtain a new nomination from a prospective employer, the Minister noted (as is the case) that the Tribunal’s power to grant an adjournment is a discretionary power under s 363 of the Act. That being the case, it is capable of being exercised unreasonably where it “lacks an evident and intelligible justification” (citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [23], [76]) or is “arbitrary, capricious, without common sense or plainly unjust” (Li at [28]).
The Minister submitted that the Tribunal’s decision record disclosed that the Tribunal considered the applicants’ request for a further postponement of its decision but declined the request for the following reasons(CB 162):
(h)The applicants’ submissions dated 14 July 2017 did not include an application for a TRA assessment, and only included an exchange of emails whereby the TRA provider requested documents from the applicants: [43].
(i)Given the time that had already elapsed since the delegate’s first request letter of 25 August 2015 for the skills assessment, the Tribunal did not place significant weight on the exchange of emails as evidence a skills assessment would be forthcoming: [44].
(j)The original sponsor had not proceeded with the sponsorship and there was no standard business sponsor in place: [44].
(k)A TRA assessment without a sponsorship was unwarranted and it would be an unnecessary added expense for the applicant who could not show evidence of a sponsorship that was current or under review at the time of the Tribunal’s decision: [45].
The Minister submitted that the Tribunal was not required to grant the postponement and on the basis that the primary applicant had not reasonably explained where and for whom he would work and had no sponsor, the Tribunal was not prepared to extend any further time to him to obtain a skills assessment, especially in circumstances where there was no confirmation that such assessment would proceed (CB 163[54]). It was said that in all the circumstances, the Tribunal’s postponement decision was made reasonably and with evident and intelligible justification.
The Minister’s representative, in oral submissions, addressed the additional matter identified by the primary applicant when invited to identify error in the Tribunal’s decision. The Minister observed that in circumstances where the Tribunal decision ultimately turned on whether there was a current nomination, the question of whether a skills assessment was required became obsolete. In the words of the Tribunal, the TRA assessment was “overtaken by the lapse in the sponsorship relied upon in this application” (CB 163[55]). The Minister made the additional observation that the Tribunal had, in any case, carefully considered the evidence concerning the primary applicant’s skills and had found that the primary applicant had not consistently performed the tasks for the nominated occupation of cook since at least the end of 2015 early 2016 (CB 163 [50]).
CONSIDERATION
In order to be entitled to relief by this Court, the applicants must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it “exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [29].
To amount to a jurisdictional error, an error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45].
Ground one
I accept that there is an element of ambiguity in the letter from Rizq restaurant dated 5 June 2017 in the sense that it was capable of being interpreted in more than one way. One interpretation, being the one adopted by the Tribunal, was that the sponsorship by Rizq restaurant of the primary applicant was conditional upon him satisfying all visa conditions, including that he be the subject of an extant approved nomination. On the other hand, an interpretation was also available that sponsorship was conditional upon the primary applicant satisfying all other visa conditions, apart from that which involved the participation of Rizq restaurant. It is this second interpretation which the applicants appear to suggest was the only one available.
However, in the absence of anything to contradict the position taken, I consider that the Tribunal did not err in proceeding on the basis that the first construction was the correct one. Indeed, it would appear that the primary applicant gave evidence to the Tribunal that “he was unable to provide a standard business sponsor who would nominate him until his visa review had been completed”, which tends to support rather than undermine the construction adopted by the Tribunal (refer CB 158 [13]). In this respect, I accept the submission of the Minister that the applicants’ challenge is tantamount to a complaint about the Tribunal’s consideration and assessment of the evidence produced by the applicants.
Furthermore, any legal error committed by the Tribunal was not material (and therefore not jurisdictional) in circumstances where the Tribunal’s dispositive reasoning was concerned with the absence of an approved nomination by a standard business sponsor (see CB 158 [19] and CB 163-164 [56]). A different approach to the construction of the letter from Rizq restaurant could not have altered the uncontroverted fact that, at the time of the Tribunal’s decision, the primary applicant was not able to satisfy cl. 457.223(4)(a) of Schedule 2 to the Regulations.
Ground one is not made out.
Grounds two and three
The exercise of a statutory power, such as s 363 of the Act, is conditioned by the requirement that it be exercised reasonably: BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [40]. Legal unreasonableness is “invariably fact dependent and requires a careful evaluation of the evidence”: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [42]. Where, as is the case here, reasons are provided, they are the focal point for the assessment. They either demonstrate a justification for the decision, or they do not: Singh at [47].
I accept that the reasons supplied by the Tribunal for the decision to decline the request made by the applicants for an extension of time to obtain a TRA assessment and a nomination of occupation for the primary applicant by a standard business sponsor were as described by the Minister and identified at [45] above. To these matters can also be added the following considerations which the Tribunal identified as having informed its decision.
First, in relation to the decision to decline the request for further time to obtain a TRA assessment, the Tribunal noted that although a submission was made that an application for assessment had been made, no application for enrolment had been provided to the Tribunal in the post-hearing submissions directed at the request for further time (CB 162 [43]).
Second, in relation to the decision to decline the request for further time to obtain a nomination of occupation, the Tribunal’s written statement records that (CB 158 and 161):
a)no nomination by a prospective employer was pending or about to be made and any nomination was subject to conditions which could not be satisfied by the prospective sponsor ([17] and [18]); and
b)the primary applicant had had a significant opportunity since 5 January 2016 to pursue a sponsorship from an approved standard business sponsor (for either the occupation of cook or accountant) but had not been able to do so ([39]).
I consider that these reasons disclose an intelligible and rational justification for the decision of the Tribunal to decline the request made by the applicants for further time to produce both a TRA assessment and a current nomination of occupation by a standard business sponsor. Although the Tribunal identified separate matters that informed each decision, there was nonetheless an interrelationship between both requests that reflected the statutory scheme and which was reflected in the Tribunal’s approach and reasons where it identified the lack of utility in permitting the primary applicant to pursue a TRA assessment in circumstances where he was not in a position to satisfy a different visa criterion concerning sponsorship. The decision of the Tribunal was also made in circumstances where the applicants had been given a further 14 days in order to progress matters and make any necessary inquiries directed at obtaining the outstanding TRA assessment and nomination. This was a matter that was acknowledged by the Tribunal in its reasons (refer CB 162 [43]) and which further underscores the reasonableness of its approach to the exercise of the statutory discretion.
To the extent that ground three separately alleges a denial of procedural fairness in the approach adopted more generally by the Tribunal I consider that the challenge cannot succeed. The Tribunal invited the applicants to a hearing and in that forum and also by written invitation dated 30 June 2017, identified for the applicants the dispositive issues arising in the review.
Grounds two and three are not made out.
ARGUMENT IDENTIFIED BY PRIMARY APPLICANT IN ORAL SUBMISSIONS
At the hearing, the primary applicant told the Court that when the request for a skills assessment had been first made in August and October 2015, he had been informed by the assessment body that the requirement for an assessment was not mandatory at that time and that Bangladesh was no identified on the list of countries. The primary applicant asked the Court to find that this was a matter that bore on the legality of the Tribunal decision.
The Tribunal (at CB160 [30]) acknowledged a submission from the primary applicant that he had been informed by the TRA that he was not eligible to be assessed. However, as the Minister submitted, whatever might have been the position historically concerning the requirement for a TRA assessment, by the time that the Tribunal came to make its decision, this position had been superseded both by the absence of an approved nomination and the fact that the Tribunal had made a renewed request for a TRA assessment. No error arises in connection with this matter.
DISCRETIONARY REFUSAL OF RELIEF
The Minister further submitted that irrespective of the demonstration of jurisdictional error, the application should be refused on discretionary grounds in circumstances where, upon any remittal, it would not be possible for the applicants to be granted the visas.
This was said to be the consequence of a legislative change which involved the removal of subclass 457 from the class of skilled visas. The amendment to the Regulations took place on 18 March 2018 with the passage of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). As a result of the amendment, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. The Court was informed that the Department stopped accepting applications for nomination approvals under the subclass 457 category after 17 March 2018.
The Minister submitted that in circumstances where there was no evidence before the Court that the primary applicant became the subject of an approved nomination by the cut-off date (or at all), any remittal to the Tribunal would be futile.
It is uncontroversial both that relief in the nature of constitutional writs is discretionary and that relief might be refused in circumstances where a reviewing court is persuaded that the visa applicant would inevitably have received the same outcome on review, rendering the relief futile.
In this case, having regard to the legislative change which removed the subclass 457 visa, I am satisfied that this is a clear case where reconsideration by the Tribunal would lack all utility. Had the Tribunal decision been affected by jurisdictional error (which it was not), the Court would have refused prerogative relief in the exercise of its discretion.
DISMISSAL
In these circumstances, the applicants’ application filed 24 August 2017 will be dismissed with costs fixed in the sum of $5,000.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 8 February 2022
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