Datta v Minister for Home Affairs
[2019] FCCA 2604
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DATTA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2604 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (“Tribunal”) – whether there was an approved employment nomination as required by cl.186.223 of sch.2 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error revealed – otherwise futile to grant the relief sought – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347, 359, 359A, 359AA, 359C, 360, 363A, 424, 424A, 424AA, 441A, 441C, 474, 476 |
| Cases cited: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 |
| Applicant: | RAJEEV DATTA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1164 of 2019 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 September 2019 |
| Date of Last Submission: | 12 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Mr M. Gao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 13 May 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1164 of 2019
| RAJEEV DATTA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 May 2019 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 April 2019 to affirm the decision of the Minister’s delegate not to grant an Employment Nomination (Permanent) visa (“the visa”) to Mr Datta (“the applicant”).
The evidence before the Court is:
(1)A bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE1”)
(2)A bundle of documents tendered by Mr Datta (“AE1”)
(3)The affidavit of Mengqi Ren, solicitor, sworn on 10 September 2019, with annexures.
The Delegate
Mr Datta is a citizen of India. He first arrived in Australia on 10 March 2009. He applied for the visa on 8 November 2016. He was assisted by a registered migration agent (CB 4).
At that time there was only one subclass of employment visa, that is subclass 186, under the relevant Employment Nomination Scheme.
The criteria for the grant of the subclass 186 visa are set out at subclass 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly Mr Datta was required to satisfy the “primary criteria” set out in this part for the grant of the visa. The Regulations require Mr Datta to satisfy “Common criteria” as part of satisfying the primary criteria.
Further Mr Datta was required to satisfy the requirement of one of three alternative “streams” for the grant of the visa. There is no dispute that he sought to satisfy the “Temporary Residence Transition stream”. Mr Datta sought to work in the nominated occupational position of “Conference and Event Organiser”.
At the relevant time Mr Datta was required to satisfy, amongst other things, cl.186.223 of Schedule 2 to the Regulations:
“(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination...”
The delegate found that Mr Datta relied on an employment nomination made by “Eagle Boys Parramatta Pty Ltd” (“Eagle Boys”) who apparently traded as “Eagle Boys Pizza North Parramatta” for whom Mr Datta claimed to have worked in 2010, and then from November 2013 to November 2016 (CB 14–CB 15).
The delegate refused the grant of the visa on 11 April 2018 (CB 38).
The delegate found that the nomination on which Mr Datta relied for the purposes of cl.186.223(2) was refused approval by another delegate of the Minister on 27 February 2018 (CB 43).
The delegate wrote to Mr Datta, through his migration agent, on 1 March 2018 advising him of this and giving him the opportunity to comment or respond.
The delegate found that no response was received by the Minister’s Department. As Mr Datta was unable to satisfy cl.186.223(2) Mr Datta was therefore unable to meet cl.186.223(1)(a). The application was therefore refused.
The Tribunal
Mr Datta applied for review to the Tribunal on 13 April 2018. He was assisted by a registered migration agent (CB 45–CB 46). The Tribunal wrote to Mr Datta through his migration agent on 6 December 2018. It requested him to provide information regarding the nomination application by 20 December 2018 (CB 51–CB 54).
There is no evidence before the Court to indicate that Mr Datta, or his agent, responded to this.
On 4 February 2019, by letter directed to his migration agent, Mr Datta was invited to attend a hearing before the Tribunal scheduled for 28 February 2019.
On the same day Mr Datta’s migration agent responded and requested that the Tribunal reschedule the hearing. He advised that Mr Datta was overseas until 2 March 2019 (CB 59–CB 60).
By letter dated 15 February 2019 the Tribunal responded (CB 64–CB 66). The Tribunal agreed to this request. It told Mr Datta that a new hearing date would be advised to him.
On 18 February 2019 the Tribunal wrote to Mr Datta, by correspondence sent to his migration agent. The Tribunal asked Mr Datta to comment on, or respond to, information that Mr Datta did not have an approved nomination relevant to his application (CB 67–CB 70). That is, the Eagle Boys nomination had been refused, and that that decision was not the subject of any review application, as at that time.
Mr Datta was asked to respond to, or comment on, that information by 4 March 2019. It is of note that Mr Datta was represented by a migration agent during this period.
There is no evidence that Mr Datta, or his agent on his behalf, responded to the Tribunal’s request by that date, or any other date.
The Tribunal affirmed the delegate’s decision on 15 April 2019 (CB 74–CB 79).
The Tribunal set out the relevant background to the matter which was consistent with what was before it. In particular it set out that Mr Datta had been invited to attend the hearing before it, and that the Tribunal agreed to postpone the hearing date on request from Mr Datta’s agent.
The Tribunal noted that it specifically invited Mr Datta to comment on, or respond to, information about the absence of an approved nomination.
The letter had put Mr Datta on notice that a failure to respond to the Tribunal’s request by the specified date, would mean that he would lose any entitlement to attend at a hearing. The Tribunal noted that Mr Datta did not respond.
The Tribunal found that, notwithstanding the invitations to provide evidence, or comments, on the matter of an approved employment nomination Mr Datta had failed to provide the necessary information to support his application (see in particular [25] at CB 77).
The Tribunal also found that Eagle Boys had not made any application to seek review of the delegate’s decision to refuse approval of their nomination as it related to Mr Datta (see further below).
As such a nomination was a requirement, as set out in the regulatory criteria for the grant of the visa, the absence of any such nomination meant that Mr Datta could not satisfy cl.186.223 and therefore, the decision under review was affirmed.
Before the Court
The sole ground, with particulars, of the application to the Court is in the following terms:
“The applicant contends a single ground that the Administrative Appeal Tribunal denied the applicant procedural fairness in violation of section 424, 424 AA or 424 A of the Migration Act 1958 (Cth) in the following ways;
Particulars;
(a)The Administrative Appeal Tribunal refused to accept a request for adjournment of hearing scheduled on 28 February 2019.
(b)The Migration Agent for the Applicant notified to the Tribunal by email that the applicant is not present in Australia and make a date of hearing after 2 March 2019 . The Tribunal did not account the information about applicant's availability at the time of hearing on 28 February 2019.
(c)The decision of the Tribunal was made without giving any chance to the applicant to present his evidence and argument related with the Nomination and Nominated sponsor.
(d)The applicant contends that the decision of the Tribunal was unreasonable when he did not get chance to present his arguments. He did not get chance to present evidence that the position for Nomination was approved.
(e)The applicant did not get chance say about the Clause 186.223 as applicable in that case. The applicant was aware that it requires that the Nominated position to which the applicant relates is the subject of an application for approval of a nomination in the Temporary Residence Tranisition stream that identifies the visa applicant that was required to be made as part of current visa applicant.
(f)The applicant claims the Tribunal made a jurisdictional error when it mistook the facts about the applicant's work history .
(g)The applicant claims that the Tribunal did not go thoroughly when examining the backgrounds of applicant's work history. The Tribunal did not account the applicant's work as a Conference and Event Organiser for Eagle Boys Parramatta for 3 years from November 2013 until 2016.
(h)The Tribunal did not account the statement "the applicant believes tat the Visa refusal is unfair (Attachment) argument submitted with the Application on 13 April 2018" and made decision unreasonably.
(i)The applicant claims that he was denied procedural fairness and natural justice when the Tribunal made decision on limited information .”
[Errors in the original.]
The application to the Court was made on 13 May 2019. On 6 June 2019 a Registrar of the Court made various orders, by consent of both parties, that relevantly gave Mr Datta the opportunity to file any amended application and further evidence by way of affidavit by 5 September 2019. The Registrar also made an order setting down the matter for callover on 17 October 2019.
Mr Datta did not provide any amended application or affidavit. However, on 19 August 2019, he sent an email to the Court’s registry requesting that the callover date on 17 October 2019 be rescheduled to before 17 September 2019 or after 10 January 2020.
In his email requesting the adjournment, or rescheduling, Mr Datta explained that he had consulted a specialist in India for his cardiac problem after not being satisfied with treatment for two years from a cardiologist in Sydney. He planned to go to either Malaysia or India for “gastric sleeve surgery”. At best it appeared he was leaving on 17 September 2019.
None of this was supported by any evidence, let alone medical evidence.
In light of this, the matter was brought to my attention. I set the matter down for directions on 4 September 2019.
On that date Mr Datta appeared in person. The Minister was represented by a solicitor.
In essence Mr Datta submitted two matters.
One, he sought that his matter be rescheduled as set out above so that he would be able to travel overseas. He proffered no satisfactory evidence as to his medical condition or the need to travel overseas.
Two, of direct relevance to his application to the Court Mr Datta submitted that he had evidence that his employment nomination had been approved.
When asked for this evidence he said it was with his employer (“Vijay”) in Sri Lanka and that he had been trying to obtain the evidence from him.
The Minister pressed for a show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth). The basis for this was said to be that the nomination on which Mr Datta relied had been refused and therefore there was no error in the Tribunal’s relevant and central finding that Mr Datta did not satisfy cl.188.223 of Schedule 2 to the Regulations.
I noted with Mr Datta that it appeared he had had ample time since at least the Registrar’s order of 6 June 2019 to obtain and provide any evidence in support of his application. It is also the case that Mr Datta would have been on notice since the delegate’s decision, made on 11 April 2018, that the absence of any such approved nomination was fatal to his application for the visa.
I set the application down for final hearing on 12 September 2019. This meant that if Mr Datta was able to provide evidence of a valid approved nomination as at the time of the Tribunal’s decision, the answer to the simple issue involved in this matter could proceed with some finality. I gave Mr Datta a further opportunity to obtain any evidence of an approved nomination by that date.
I also gave the Minister the opportunity to obtain, from an appropriate person, evidence by way of affidavit as to what was relevantly contained on the Department’s file in relation to the Eagle Boys nomination application. The Minister filed the affidavit of Mengqi Ren on 10 September 2019, with annexures.
At the hearing Mr Datta appeared in person. The Minister was represented by a solicitor. The affidavit of Mengqi Ren was read into evidence.
At the commencement of the hearing I reminded Mr Datta that on the previous occasion before the Court he had submitted that he had evidence of an approved employment nomination for Eagle Boys which related to his visa application.
Mr Datta said he had such evidence and produced the bundle of documents which were subsequently marked as “AE1”. There was no objection by the Minister.
The documents in the bundle are as follows:
1. An application for review to the Administrative Appeals Tribunal lodged on 18 March 2018, which is said to relate to “Nomination Refused”. There was no dispute that this related to the application for nomination made by Eagle Boys and which was refused by the Minister’s delegate on 27 February 2018.
[To avoid confusion I will refer to the decision on the review of the visa refusal as the decision of “the Tribunal”. The review decision in relation to the employment nomination as the decision of “the Administrative Appeals Tribunal”].
2. The delegate’s decision record of 27 February 2018 (see also at annexure MR – 1 of the affidavit of Ms Ren and at [3] of her affidavit).
3. A Statutory Declaration said to have been declared on 5 April 2018 by Vijaykumar Rajagopal, who described himself as the “owner/Director of Eagle Boys Parramatta”.
[Items 1-3 above are in evidence as “AE1”.]
4. A “covering” letter from Mr Datta apparently addressed to the Court which purports, apparently to give an explanation as to what happened in relation to the attempt to seek merits review of the decision to refuse the application for the employment nomination.
[Written submissions from Mr Datta.]
Consideration
As set out above, I treated item 4 above in the nature of submissions. The applicant made oral submissions generally to the same effect before the Court. The following may be said about all of this material.
One, contrary to Mr Datta’s submission these documents do not support the contention that there was a relevant approved employment nomination from Eagle Boys before the Tribunal at the time of its decision.
Two, Mr Datta’s written submissions repeat what he told the Court at the hearing. That is, that he, and not his employer made the application to the Administrative Appeals Tribunal for review of the decision to refuse approval to the application for an employment nomination made by Eagle Boys.
The affidavit of Ms Ren annexes the decision of the Administrative Appeals Tribunal made on 24 April 2018 which found, that it did not have jurisdiction to review the delegate’s decision which refused an employment nomination approval to Eagle Boys.
The reason for this was that the application for review was made by Mr Datta, the applicant in the current case, who was the employee of Eagle Boys, and not by Eagle Boys or its director on its behalf. The Administrative Appeals Tribunal found that the effect of s.338(9) of the Act, reg.4.02(4)(e) and reg.4.02(5)(d) of the Regulations was that such an application must be made by the employer so as to engage the jurisdiction of the Administrative Appeals Tribunal (see at [3] of page 19 of the affidavit of Ms Ren).
There was no dispute from Mr Datta that he, and not Eagle Boys, had made the application for review.
There is no evidence before the Court now that there has been any application for judicial review of the Administrative Appeals Tribunal’s decision. Nor did any of the parties before the Court now assert otherwise.
Three, as set out above Mr Datta has now provided to the Court a copy of a Statutory Declaration said to have been declared by Vijayakumar Rajagopal on 5 April 2018.
The decision of the Administrative Appeals Tribunal made in relation to the employment nomination, reveals that the Administrative Appeals Tribunal wrote to Mr Datta on 29 March 2018 inviting him to comment on the “validity” of the application for review which he had lodged (see at [4] of page 19 of the affidavit of Ms Ren).
The Administrative Appeals Tribunal also reports that a response was received from Mr Rajagopal the director of Eagle Boys, on 6 April 2018, who provided a Statutory Declaration (see at [5] page 19 of Ms Ren’s affidavit).
Given what the Administrative Appeals Tribunal reports as to the contents of that response (see at [5] page 19 of Ms Ren’s affiddavit) and the “coincidence” of the dates of 5 and 6 April 2018 it is reasonable to find that that Statutory Declaration referred to at [5] is the same as the Statutory Declaration which Mr Datta has now provided to the Court.
The Administrative Appeals Tribunal considered the contents of Mr Rajagopal’s Statutory Declaration. These included that Mr Rajagopal asked the Tribunal, as at 6 April 2018, to accept the application for review.
The Administrative Appeals Tribunal found that Mr Datta, the employee had made the application. In those circumstances given the relevant statutory and regulatory provisions the Administrative Appeals Tribunal did not have jurisdiction.
In relation to the “submission” from Mr Rajagopal the Administrative Appeals Tribunal found that Mr Rajagopal was aware of the 21 day limit from the date of the delegate’s decision with which to make an application for review of the refusal of the employment nomination. Given [3] and [7] of Mr Rajagopal’s Statutory Declaration this was reasonably open to the Tribunal.
In these circumstances the Administrative Appeals Tribunal found that no application for review was made by Eagle Boys within the 21 day period as required by s.347(1)(b) of the Act and reg.4.10 of the Regulations.
As set out above no application for judicial review of this decision has been made. In any event on its face, and in light of the evidence otherwise before the Court, I cannot see that any legal error is indicated in this decision.
Four, it is clear that Mr Datta now has provided the Statutory Declaration to the Court to support his contention that he should be given another opportunity to go before the Tribunal and explain his case.
What Mr Datta has overlooked is the difficulty for him that even if the Court were to remit his matter to the Tribunal, the matter that would be remitted would be the application for review of the visa refusal, and not the review of the refusal of the employment nomination. Given what is set out elsewhere in this judgment he would still need an approved employment nomination from Eagle Boys before any such visa could be granted to him.
In that context there was nothing of a satisfactory nature from Mr Datta now to indicate that that would occur. Mr Rajagopal, the director of Eagle Boys, is on Mr Datta’s submission, in Sri Lanka. Mr Datta also submitted that he had difficulty in otherwise obtaining documents from Mr Rajagopal.
Five, in any event as I sought to explain to Mr Datta the Court cannot remit his matter to the Tribunal simply to provide him with a basis to reopen his case. The Court would need to find that the Tribunal’s decision, affirming the delegate’s decision to refuse him the visa contained some legal error in the Tribunal’s exercise of its jurisdiction.
For the reasons set out elsewhere in this judgment no such error is evident on what is before the Court. At the time of the making of its decision the Tribunal’s finding that there was no approved employment nomination from Eagle Boys in relation to Mr Datta was reasonably open to it.
Six, as set out elsewhere in this judgment the Tribunal also found that, as at the time of its decision (15 April 2019) there was no application for review of the decision to refuse approval for the employment nomination (see at [24] of the decision record).
The Tribunal put Mr Datta on notice of this issue by its letter of 6 December 2018 (see CB 53 and [20] at CB 77). As the Tribunal made clear in its letter “…there is no pending review of the decision to refuse the [employment] nomination”. (CB 53.5).
This was reasonably open to the Tribunal given that the decision of the Administrative Appeals Tribunal which found it had no jurisdiction in relation to the review of the decision to refuse the approval for the employment nomination, was made on 24 April 2018 (see the affidavit of Ms Ren at page 18).
Seven, in both written and oral submissions before the Court Mr Datta submitted that he had made a “mistake” in applying for the review of the decision of the refusal of the approval of the employment nomination himself, instead of such an application being made by the employer.
In written submissions Mr Datta stated as follows:
“Respected Sir,
As per required I am sending you my Nomination lodgment record done with in the time frame after refusal of the 186 Nomination application.
1.Date of Nomination application refusal 27 February 2018
2.Date of Application for Merit Review in AAT Department 18 March 2018.
3.Date of fees paid for Merit review to AAT Department 18 March 2018.
We lodge the application through immi account and did one mistake that instead of applying by the employer that was selected by employee and I received the call from the department on 19 March 2019 that who lodge the application and I told that my boss was busy and he gave me authority to lodge through immi account and after that I requested to the spokesperson if there is an issue in the application please let me know I will say to my boss for reply because still we have two days for reply, but He(department person) told me nothing to worry all good about this .
But after completion of the time frame department sent an email that your application is invalid and ask for the comment regarding this within the time frame.”
None of this reported telephone conversation was put before the Court in any evidentiary context. Given Mr Datta’s oral submissions to the Court, I did consider whether to give him the opportunity to give this as evidence in the witness box. For the reasons set out below no useful purpose would have been served by this course.
Noting also that Mr Datta made no application to provide this submission as evidence, even when it was pointed out that his oral submissions from the bar table, which mirrored his written submissions, could not be treated as evidence.
In any event, focusing first on his written submissions, it is clear the claimed conversation was said to have taken place on 19 March 2019 with a person from the “Department”.
When it was pointed out to Mr Datta before the Court that it was difficult to see that an officer of the Minister’s Department would ring him about an application to the Tribunal, he stated that it was a person from the Tribunal. He did not remember the person’s name or any other details about that person.
Even on this basis, the written submissions, at best for Mr Datta, assert that his “mistake” was in relation to the lodging of the employment nomination review himself. The telephone call that he says he subsequently received was in relation to the application for review of the employment nomination.
Even if Mr Datta did receive such a call it would have been, on the first part of his written submissions as extracted above, in relation to the employment nomination review.
In his written submissions Mr Datta then states that he “requested” the person who called him to let him know if there was an issue with the application because if there was he would speak to his “boss” because there were still two days left for a “reply”.
Before the Court in oral submissions it was not clear from Mr Datta if his complaint was directed to the Tribunal’s decision or the Administrative Appeals Tribunal decision, that made the decision in relation to the application for review of the employment nomination refusal.
On what is before the Court the two day period referred to by Mr Datta is difficult to understand. By 19 March 2019, the time for responding to the Tribunal’s letter of 6 December 2018 had passed. That date, as is clear on the face of the letter, was “20 December 2018” (see CB 53).
Nor could it have been in reference to the Tribunal’s letter of invitation to hearing. Mr Datta was told to respond “within 7 days of the receipt of this letter”. As the letter was sent by email to Mr Datta’s representative on 4 February 2019 (CB 55) the letter was dispatched by the method set out in s.441A(5)(b) of the Act, and therefore is taken to have been received at the end of 4 February 2019 (s.441C(5) of the Act). Mr Datta had until 11 February 2019 to respond.
It appeared that both the written and oral submissions on this point have sought to confuse the application for review of the visa refusal with the Administrative Appeals Tribunal’s decision in relation to the employment nomination.
Before the Court Mr Datta submitted that the person who rang him, noting that the telephone call was said to have occurred on 19 March 2019, should have rung his employer not him. Given that he lodged both applications he was unable to satisfactorily explain why the person who rang him (even if it was an officer of the Tribunal) should have rung the employer, who had made no application to the Tribunal (that is in relation to the visa refusal), or the Administrative Appeals Tribunal (that is in relation to the employment nomination), within the time respectively required for such applications.
If Mr Datta sought to submit that somehow he was misled by the person who called him (even if this were the case) it does not assist him. Mr Datta submitted that he relied on what he had been told by the person who called him, and that this resulted in the passing of the period within which he could make a “valid” application.
The only question of “validity” related to the application for the review of the employment nomination refusal, not the review of the visa refusal.
If the telephone call was about the employment nomination refusal, as at 19 March 2019, the Administrative Appeals Tribunal had already decided it had no jurisdiction.
If it was about the application for review of the visa refusal, the fact remains that as at 19 March 2019 no relevant approved employment nomination existed, nor was there at that time any review pending in relation to that decision.
Eight, what remains of Mr Datta’s submissions and arguments before the Court therefore is, in essence, he made a “mistake” (as set out above) and the Court should give him another opportunity before the Tribunal. Absent any legal error in the Tribunal’s decision the Court cannot intervene to give Mr Datta another opportunity. In light of what is set out in this judgment, the Tribunal’s decision is a privative clause decision and pursuant to s.474(1)(b) of the Act is not susceptible to legal challenge and pursuant to s.474(1)(c) the relief Mr Datta seeks is not available to him (Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2).
Consideration: The Grounds of the Application
The grounds of the application to the Court did not otherwise reveal jurisdictional error in the Tribunal’s decision.
I note as a preliminary matter, given Mr Dattta’s earlier request to reschedule the hearing of the application, that it would have been futile to adjourn the hearing to sometime in January 2020 or later. Without evidence of an approved employment nomination from Eagle Boys in existence at the time of the Tribunal’s decision, Mr Datta is unable to show jurisdictional error in the Tribunal’s decision.
As set out above the Tribunal’s decision to affirm the delegate’s decision was based on its finding that there was no approved employment nomination as is required by cl.186.223 of Schedule 2 to the Regulations.
On the evidence before the Court, and on what was before the Tribunal, it was reasonably open to the Tribunal to find that there was no approved nomination relevant to Mr Datta at that time. In fact on the evidence provided by Ms Ren the Tribunal was correct in this finding.
Mr Datta did not provide any evidence to the contrary to the delegate, the Tribunal, or now to the Court, despite ample opportunity to do so.
In that circumstance the Tribunal had no discretion other than to affirm the decision given that the application did not satisfy cl.186.223(2) of Schedule 2 to the Regulations.
As the Minister submits that is sufficient to dispose of the application to the Court.
I note in any event for the sake of completeness that the sole ground of the application to the Court, and the particulars to it, do not in any event assist Mr Datta in revealing jurisdictional error in the Tribunal’s decision.
The reference in the ground to s.424, s.424AA, and s.424A is formulaic. In any event none of these sections applied to Mr Datta’s case. These sections are found in Division 4 of Part 7 of the Act. Mr Datta’s application to the Tribunal was governed by Part 5 of the Act.
Nor do the “equivalent” sections, that may apply, assist Mr Datta.
The “equivalent” to s.424 is s.359 of the Act. This provides that the Tribunal may get any information that it considers relevant to the review. However, the Tribunal is not compelled to exercise this power. While the Tribunal makes reference in its decision record (at [22]) to s.359 of the Act, as having written to Mr Datta on 18 February 2019, it is clear given the language used in the letter, and the stated purpose of the letter, that the Tribunal purported to exercise, or more correctly sought to discharge the obligation in, s.359A of the Act.
The “equivalent” sections to s.424A and s.424AA are s.359A and s.359AA. Section 359A(1) of the Act provides that the Tribunal must give an applicant the opportunity to comment on, or respond to, information that, is the reason, or a part of the reason, for affirming the delegate’s decision which is the subject of the review. As relevant to this case, the Eagle Boys employment nomination had not been approved, and Eagle Boys had not sought review of this decision. The Tribunal wrote to Mr Datta in this regard.
Mr Datta, for whatever reason, did not respond or comment. The Tribunal discharged its relevant statutory obligation. There is no legal error in this regard.
Section 359AA is the “equivalent” of s.424AA. This is a mechanism by which the Tribunal may discharge its obligation pursuant to s.359A orally at a hearing. Given that the obligation in s.359A was discharged when the Tribunal wrote to Mr Datta, there was no need for it to utilise s.359AA.
The particulars to the ground also do not assist Mr Datta.
Contrary to what is set out at particulars (a), (b) and (c), the Tribunal did agree as set out above, to reschedule the hearing.
In any event given subsequent events Mr Datta was not entitled to a hearing. As set out above the Tribunal wrote to Mr Datta pursuant to s.359A of the Act seeking his comments, or response, to the information that was central to his application and its disposition. He did not respond or comment by the time specified.
When Mr Datta failed to respond to the Tribunal’s letter sent pursuant to s.359A of the Act, as the Minister submits, the cascading effect of s.359C, s.360 and s.363A of the Act was that Mr Datta no longer had any entitlement to attend at a hearing (Hasranv Minister for Immigration and Citizenship [2010] FCAFC 40 at [25]–[32]).
Particular (d) asserts that the Tribunal was unreasonable in not giving him this opportunity. That is that it should not have proceeded to a decision. That it did so was said to be unreasonable.
The Tribunal exercised its discretion pursuant to s.359C(2) to proceed to a decision. I cannot see that the Tribunal’s exercise of its discretion was unreasonable in the requisite sense. Mr Datta had a number of opportunities to respond to a simple issue. That is, whether or not he had the requisite nomination.
His failure to respond does not make the Tribunal’s decision unreasonable. It does in fact provide a basis to find that it was reasonable.
It is difficult to understand what Mr Datta’s complaint is at particular (e). If he was aware he needed an approved nomination then what “chance” was he denied by the Tribunal, in making submissions about cl.186.223. No legal error is revealed here.
Particulars (f) and (g) appear to assert that the Tribunal misunderstood or misapplied the “facts” of his work history and failed to consider his work history including that he had previously worked for Eagle Boys.
These particulars ignore, or do not comprehend, that the critical issue, not only in the review but before the delegate, was whether or not Mr Datta had an approved employment nomination to support his application for the visa.
His work history was not relevant to this one, simple, question. There is no legal error in the Tribunal focusing on this central regulatory requirement.
Mr Datta may well have believed that the delegate’s decision was unfair. However, Mr Datta’s belief in this regard, and the Tribunal’s alleged failure to mention it in its decision record, does not reveal jurisdictional error in the circumstances already explained above.
Particular (i) complains that Mr Datta was denied procedural fairness and natural justice when the Tribunal made its decision on “limited information”.
This again reveals Mr Datta’s, it must be said by now curious, inability to understand that his failure to respond to the Tribunal’s request to provide comments or information about a critical issue, was his lost opportunity to address this critical issue in the review, and that the absence of an employment nomination meant that the Tribunal had no option but to affirm the delegate’s decision.
In all, neither the ground, nor the particulars, reveal jurisdictional error in the Tribunal’s decision. On the evidence now before the Court the Tribunal’s finding that Mr Datta was unable to meet a critical and central requirement for the grant of the visa, that is the existence of an approved employment nomination relevant to him, was reasonably open to it on the material before it.
Before the Court the Minister also submitted that irrespective of whether there was any error in the Tribunal’s decision (which he otherwise said there was not) that any relief granted to Mr Datta as he sought, would in the circumstances, be futile.
The Minister referred to Singh v Minister Immigration and Border Protection [2017] FCAFC 105 (“Singh”). This was a case before the Full Court that, similar to the current case, involved an employment nomination, albeit in a different “stream” to that for which Mr Datta applied (see Singh at [17]).
Mortimer J, with whom Jagot J and Bromberg J agreed, considered the matter of futility in that case (see at [81]–[90]).
The issues in Singh involved, amongst other things, the construction of cl.187.233 of Schedule 2 to the Regulations, and related to the question of whether on remitter to the Tribunal the prospective employer could lodge another application for approval of a nomination for the same employment position involving the same visa applicant which was the subject of the initial refusal (see at [82]).
Mortimer J stated at [86]-[90]:
“The appellant’s argument relates to the construction of the words “the nomination” in para (3) of cl 187.223, but does not grapple with the terms of subparas (1)(a) and (b).
In his written submissions, the Minister submits (at [37]):
Clause 187.223(1) of Schedule 2 imposes a single requirement, albeit one that is expressed in two paragraphs for ease of reference. Thus, the provision could have been expressed, and should be understood, as follows:
(1) The position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(ii) [sic (4)(h)(ii)] … in relation to which the declaration mentioned in paragraph 114C(3)(d) was made in the application for the grant of the visa.
That submission should be accepted. In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.223 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
The structure of reg 5.19 contemplates (whether for subreg (3) or subreg (4), although (4) is the relevant subregulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the subregulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; 264 ALR 417 at [24]- [27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).”
Clause 186.223 which was relevant at the time of the delegate’s and the Tribunal’s decision is set out above. For the sake of completeness I note that clause 186.223 is now in the following (for current purposes, similar) terms:
“(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Temporary Residence Transition stream; and
(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.”
In my respectful view the circumstances of the current case are amenable to the reasoning set out by Mortimer J in Singh.
That is, the criterion in the current case imposes a single requirement that is either fulfilled or not fulfilled at the appropriate time.
That requirement is that at the relevant time Mr Datta (in relation to the grant of the visa) was required to fulfil the requirement that there was an employer nomination at the time he made the declaration referred to at clause 186.223(1)(c) (that is in paragraph 1114B(3)(d) of Schedule 1 to the Regulations).
As set out above the employment nomination made by Eagle Boys was refused. The application for review to the Administrative Appeals Tribunal did not alter this fact.
The “mechanism” of the “scheme” as explained by Mortimer J in my respectful view, given the commonality of language and importantly the elements of the “scheme”, applies to the current circumstances.
As with Singh “the mechanism the scheme contemplates to alter an unsuccessful nomination” was the opportunity before the Administrative Appeals Tribunal to satisfy it that the nomination should be approved. The fact that Mr Datta’s employer did not seek to exercise that opportunity at the relevant time, or even where Mr Datta made a “mistake”, does not alter the fact that the opportunity was lost.
As was respectfully said in Singh the scheme: “…does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant”.
The basis for the order dismissing the application to the Court is as otherwise explained in this judgment. However, I agree with the Minister that even if in some way it was appropriate to contemplate granting the relief sought, such a course would be an exercise in futility.
Conclusion
In all there is no jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 September 2019
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