Dhir & Ors v Minister for Home Affairs
[2019] HCATrans 118
[2019] HCATrans 118
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B9 of 2019
B e t w e e n -
SAPNA DHIR
First Plaintiff
RAJBIR SINGH
Second Plaintiff
KAYA KAYA
Third Plaintiff
ANURAG SINGH
Fourth Plaintiff
and
MINISTER FOR HOME AFFAIRS
Defendant
BELL J
TRANSCRIPT OF PROCEEDINGS
FROM SYDNEY BY VIDEO LINK TO BRISANE
ON THURSDAY, 6 JUNE 2019, AT 9.30 AM
Copyright in the High Court of Australia
MR N.K. SHARMA: May it please the Court, I appear for the plaintiffs, your Honour. (instructed by Sharma Lawyers)
MR A.G. PSALTIS: May it please the Court, I appear for the respondent. (instructed by Clayton Utz)
HER HONOUR: Yes, Mr Sharma.
MR SHARMA: Thank you, your Honour. Your Honour, firstly can I check, I sent an email last night to the Registrar with a copy of a letter that I received from the other side yesterday – it was sent late last night, your Honour.
HER HONOUR: Mr Sharma, the Registry has supplied me with a copy of a document which is the notification of refusal of a nomination application, dated 6 July 2018, which I understood you may be seeking to place before the Court today on this application.
MR SHARMA: Yes, your Honour.
HER HONOUR: Is that so?
MR SHARMA: That is correct, your Honour.
HER HONOUR: Is that the matter that you wished to draw to my attention or is there some ‑ ‑ ‑
MR SHARMA: Yes, your Honour, I do.
HER HONOUR: Yes. Well, I will shortly ask Mr Psaltis about that matter but could I simply draw to your attention the document that I have does not appear to be complete. It comprises five pages. On its face it does not appear to be the whole of the decision record.
MR SHARMA: There should be eight pages, your Honour.
HER HONOUR: Yes. Well, I have only five, Mr Sharma. The Registry will make an inquiry but before perhaps we proceed much further down this path I might inquire of Mr Psaltis his attitude to the Court receiving the document.
MR PSALTIS: Thank you, your Honour. In my submission, it is new material that is filed late and not in accordance with the rules, and no application to amend the plaintiffs’ application has been made, nor any application for an extension of time, nor any application for directions to be given leave to rely on further material. Under rule 25.08 of the Court’s rules the plaintiffs could have replied to the Minister’s response; they chose not to do so and now have provided us with this material late.
The second reason I object to it, your Honour, is it is irrelevant. It is not the decision that is before this Court. The decision that is before this Court is the visa application that sits alongside this decision but this is the nomination by the employer and that is not the decision to which this Court is concerned and, in my submission, it is irrelevant.
HER HONOUR: Yes. Thank you, Mr Psaltis.
MR PSALTIS: Thank you, your Honour.
HER HONOUR: Mr Sharma, as I understand things, I have before me today the plaintiffs’ application for constitutional and other writ relief. In response to that application the Minister submits that I should refuse to grant the extension of time that you seek and in the event I accede to that application it necessarily follows the application itself would be dismissed.
So the matter that is before me today is the question of the extension of time. That relates to the application filed on 27 February 2019 which claims relief in relation to the decision of the Minister’s delegate made on 6 August 2018 refusing the first plaintiff’s subclass 187 visa application. On the face of it, Mr Sharma, it is difficult to see the relevance of the anterior decision of the Minister’s delegate to refuse the nomination application, being the decision dated 6 July 2018.
MR SHARMA: Yes, your Honour, I agree with that, but the refusal of the visa application was on the basis that the nomination was refused; that was the only reason. So this nomination has got relevance in relation to the visa application.
HER HONOUR: I am sorry, Mr Sharma, I should indicate that I have now been supplied with a copy of the document the subject of objection, being the notification of refusal of the nomination application. Now, can you just repeat the basis you say of relevance of that document to consideration of whether I should make an order extending time in order to challenge the visa refusal application?
MR SHARMA: Yes, your Honour. Your Honour, the visa application was refused on the basis alone that the nomination was not approved.
HER HONOUR: I understand that, but whatever the reasons may be for the refusal of the earlier application how does that bear on the determination of the delegate to refuse the visa application?
MR SHARMA: Your Honour, our submission is going to be that the reference that the delegate has made to the documents, information provided by the applicant, was relevant to the decision made on the visa application because if there was no refusal of nomination application there will be no refusal of visa application on that basis so therefore it is relevant, your Honour. We want to say that the decision‑maker has not taken into account certain documents, information, that was provided by the applicant in relation to the nomination application and because that was not given ‑ ‑ ‑
HER HONOUR: Mr Sharma, the Minister in his written submissions contends that in truth your challenge is to the earlier decision, that is, the decision to refuse the nomination. In essence, Mr Sharma, if I may distil the basis of the Minister’s objection as I understand it, it is this. The delegate making the decision that you seek to challenge, that is, the decision to refuse to grant the visa, was required either to grant the visa if it met each of the criteria for the grant of such a visa in accordance with the Migration Act and Regulations, and in the event that it did not the delegate had no discretion but was required to refuse to grant the visa.
It appears to be uncontested that at the date the delegate was required to consider whether or not to grant the visa, that is, whether or not each of the criterion specified in the Regulations was satisfied, the nomination had been refused. The correctness or otherwise of the refusal and the reasons for refusal of the nomination were not before the delegate. It is, so the Minister submits, difficult to see how conceivably the delegate could fall into some jurisdictional error in failing to have regard to material relating to the anterior and separate decision to refuse the nomination application.
MR SHARMA: Yes, your Honour, I understand, and I do not think I can take it any further except to say that it is only relevant insofar that the visa refusal was dependent upon the nomination application and that was the only basis that was taken into account by the delegate in refusing the visa application that there was no nomination.
HER HONOUR: I understand that, Mr Sharma, but you ‑ ‑ ‑
MR SHARMA: That is…..your Honour.
HER HONOUR: Yes. Well, Mr Sharma, the decision – I withdraw that – the notification of the refusal of a nomination application, dated 6 July 2018, in my view, is not relevant to any issue that I have before me so I do not propose to receive it.
MR SHARMA: Thank you, your Honour.
HER HONOUR: Yes.
MR SHARMA: Your Honour, in that case, I do not think I can say any more except what is in the application and in the affidavit of my client because ‑ ‑ ‑
HER HONOUR: Yes. I am sorry, do go on, Mr Sharma.
MR SHARMA: Because at the time the application was made my client did not have access to the documents and I had requested the migration agent for a copy of the document that he had submitted to the Department, so at that time, that material not being available, the application was based mainly on what the instructions were from the client; there was no evidence to suggest that that was the case. So my submissions in that case would not be relevant to the visa application because, as your Honour said, there was not much more the delegate would have looked at.
HER HONOUR: Yes. Is there anything further that you wish to put, Mr Sharma, apart from the material in the application? I take it you rely on the affidavit of the first plaintiff, sworn on 27 February 2019?
MR SHARMA: That is correct, your Honour.
HER HONOUR: Yes. Mr Psaltis, is there any objection to any part of the first plaintiff’s affidavit?
MR PSALTIS: No, your Honour.
HER HONOUR: You may take it that I have read the contents of the affidavit and the application and there is nothing further you wish to put, Mr Sharma?
MR SHARMA: No, your Honour. Thank you.
HER HONOUR: Yes, thank you. Yes, Mr Psaltis.
MR PSALTIS: Thank you, your Honour. One point to elaborate upon, issue 1, or ground 1 as it is described in my – sorry, I should say I rely on my written response, the Minister’s written response.
HER HONOUR: Yes, thank you for that, Mr Psaltis.
MR PSALTIS: Just in terms of the first issue about the documents that were said to be not taken into account by the delegate, your Honour has correctly, in my respectful submission, summarised the Minister’s contention in that respect. I merely elaborate to say that to the extent that the true complaint is with the decision on the nomination application the appropriate vehicle to challenge that is by review in the Administrative Appeals Tribunal. I have cited in the written response section 338 of the Migration Act; if I can just give you the more precise reference?
HER HONOUR: Yes, thank you.
MR PSALTIS: Regulation 4.02, subregulation (4)(e) relates specifically to the nomination the subject of this matter and that gives review rights under regulation 4.02, subregulation (5)(d) to the employer the subject of the nomination decision and that gives review rights to be reviewed in the Administrative Appeals Tribunal. To the extent that the complaints that my learned friend raises are about the decision on the nomination, the appropriate vehicle to challenge that is in the Tribunal, not before this Court reviewing an entirely different decision.
HER HONOUR: Do I take it that the time for bringing such an application before the Tribunal has expired?
MR PSALTIS: I understand it would have but I do have instructions that ‑ ‑ ‑
HER HONOUR: Would that – I am sorry, do tell me those instructions.
MR PSALTIS: Sorry, your Honour. I have instructions that a review was commenced in the Tribunal but I have no instructions about the progress of that review.
HER HONOUR: A review has been commenced in the Tribunal?
MR PSALTIS: Yes, that is correct.
HER HONOUR: I see. I might just take up one aspect of your very helpful submissions, Mr Psaltis.
MR PSALTIS: Thank you, your Honour.
HER HONOUR: You draw attention to the assertion in what I will describe as ground 2 of the application that:
The Plaintiffs were deprived of their right to seek review by the Administrative Appeals Tribunal as a result of the unlawful/fraudulent acts and breach of the Plaintiffs’ migration agent’s obligations.
As I understand it, your submission is it is not in the interests of the administration of justice that I extend time in which to claim the relief that is sought because there is no merit in the proposed grounds for the grant of the writ relief sought.
You also draw attention to a discretionary consideration against the grant of the relief sought, namely, that it would be open to the plaintiffs to seek an extension of time before the Federal Circuit Court and to challenge the Tribunal’s determination that it was without jurisdiction, having regard to the lateness of the application, is that so?
MR PSALTIS: Yes.
HER HONOUR: You point to the circumstance by reference to a decision of the Full Federal Court that the Federal Circuit Court would have jurisdiction to entertain such an application and to consider whether the plaintiffs had established that by reason of fraud perpetrated not only on them but upon the Tribunal there had been no decision of the Tribunal, is that right?
MR PSALTIS: Yes, that is correct.
HER HONOUR: The matter that I raise with you, bearing in mind that here the challenge is not to the decision of the Tribunal but to the decision of the delegate made on 6 August 2018, it is, as you submit, not easy to see how any fraud ‑ were in truth it to be a fraud – perpetrated on the Tribunal could bear on the anterior decision of the delegate. But in circumstances in which that issue of fraud or no fraud might, in your submission, be open to be ventilated in proceedings before the Federal Circuit Court, on one view it would be inappropriate for me to embark on a consideration of your submissions on that topic.
MR PSALTIS: On the basis that it could infect the decision in the Federal Circuit Court if that were to be pursued, is that – do I understand your Honour correctly?
HER HONOUR: Well, that would be a consideration. As I understand the Minister’s primary position, it is that any fraud perpetrated on the Tribunal cannot be, as it were, related back to the anterior decision of the delegate and there is simply nothing in the material before me on this application to suggest unlawful or fraudulent conduct that might impact on the decision of the delegate, is that a fair way of putting it?
MR PSALTIS: Yes, that is my primary submission.
HER HONOUR: Yes. Well, in those circumstances, unless there is anything further you wish to put to me, it would seem to me to be unnecessary and therefore inappropriate to consider the submissions you
address on the factual question of whether the evidence would support a finding of fraudulent or other unlawful conduct by the delegate.
MR PSALTIS: Yes, in my submission, there were alternative submissions and I do not – I press my primary submission and, to the extent that that is sufficient, I do not seek to rely on the alternative submissions.
HER HONOUR: Thank you, Mr Psaltis. Is there anything further ‑ ‑ ‑
MR PSALTIS: Unless I can assist your Honour ‑ ‑ ‑
HER HONOUR: No, thank you, Mr Psaltis.
MR PSALTIS: Thank you, your Honour.
HER HONOUR: Mr Sharma, is there anything further you wish to put?
MR SHARMA: Your Honour, there is just one small point.
HER HONOUR: Yes.
MR SHARMA: I think your Honour raised the point that the matter should have been taken to the Federal Circuit Court.
HER HONOUR: Yes.
MR SHARMA: Is that – your Honour, in this case it was not possible, as I understand, because you can only make an application to the Federal Circuit Court if a decision had been made by the Tribunal on an application and that was the reason in this case, as was the case in the matter of Wei v Minister for Immigration that we were going to rely upon. So this application could not have been taken to the Federal Circuit Court on the basis that an application was not made to the Tribunal within the statutory time limit and that is why the application had to be made to this honourable Court.
HER HONOUR: As I understood it, in the decision of ‑ ‑ ‑
MR SHARMA: Your Honour, I did not want to waste time, your Honour ‑ ‑ ‑
HER HONOUR: No, not at all, Mr Sharma. In the decision of the Full Federal Court in Beni v Minister for Immigration [2018] FCAFC 228 the court dealt with an appeal from the Federal Circuit Court which entertained, albeit dismissing, judicial review for a decision of the Administrative
Appeals Tribunal, the Tribunal having held that it was without jurisdiction to entertain the review. Is there anything you wish to put to me about that?
MR SHARMA: No, your Honour, no ‑ ‑ ‑
HER HONOUR: Yes. I should say, Mr Sharma, the Minister’s reliance on an alternative remedy is not the principal basis on which he contends that I should not extend time. His principal basis, as I apprehend it, is that none of the grounds advance any challenge with reasonable prospects of success. Indeed, the Minister would put the matter higher than that and contend that they were wholly lacking in merit and, for that reason, I would not be satisfied that it is in the interests of the administration of justice to grant the relief that you claim in your first order.
MR SHARMA: I fully understand, your Honour.
HER HONOUR: Yes, thank you, Mr Sharma.
MR SHARMA: Thank you, your Honour.
HER HONOUR: This is an application for constitutional or other writ which was filed on 27 February 2019. The plaintiffs claim certiorari to quash the decision made by a delegate of the Minister for Home Affairs (“the Minister”), dated 6 August 2018, refusing the plaintiffs’ applications for the grant of subclass 187 visas. The plaintiffs also seek prohibition to prevent the Minister from acting on, giving effect to or enforcing the delegate’s decision. The delegate’s decision is a migration decision under the Migration Act1958 (Cth) (“the Act”). Under section 486A(1) of the Act:
An application to [this Court] for a remedy . . . in exercise of the court’s original jurisdiction in relation to a migration decision must be made . . . within 35 days of the date of the migration decision.
Under section 486A(2) of the Act:
The High Court may, by order, extend that . . . period . . . if:
(a) an application for that order has been made in writing . . . specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the High Court is satisfied that it is necessary in [those] interests –
to do so. The plaintiffs seek an order to show cause why the time for making their application not be extended to the date on which it was filed. In the body of the application the plaintiffs assert that it is necessary in the interests of justice that the Court make the order.
The Minister does not take any issue that the formal requirements of section 486A(2) are not satisfied. The Minister opposes the extension on the grounds that the application is without substantive merit. That the plaintiffs have failed to identify compelling reasons to explain the delay of some 170 days in bringing the application and in circumstances in which the plaintiffs have an alternative remedy available to them it cannot be said to be necessary in the interests of justice to grant the relief that is sought.
In written submissions adopted on the hearing of the application the Minister’s principal focus is upon the first of those grounds.
The background to the application is set out in the first plaintiff’s affidavit. The plaintiffs are citizens of India. The first plaintiff, her husband (the second plaintiff) and their daughter (the third plaintiff), entered Australia in April 2009. The first plaintiff was the holder of a student visa. The second and third plaintiffs were granted visas as dependants of the first plaintiff. The fourth plaintiff, the son of the first and second plaintiffs, was born in Australia. His visa status is equally dependent on that of the first plaintiff.
After completing her studies the first plaintiff was granted a subclass 457 temporary visa. On 5 May 2016, the first plaintiff applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa in the direct entry stream. The first plaintiff was the primary applicant, and the second, third and fourth plaintiffs were secondary applicants. The application was lodged on the plaintiffs’ behalf by their migration agent, Mr Aggarwal.
The first plaintiff’s nominating employer, Veeva Enterprise Pty Ltd (Veeva), had lodged its nomination application on 15 April 2016. Clause 187.233 of the Migration Regulations 1994 (Cth) (the Regulations), states a criterion for the grant of a subclass 187 visa in the direct entry stream. At the time relevantly it provided:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval –
. . .
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
On 6 July 2018, the first plaintiff was told by Mr Aggarwal that the nomination of Veeva had been refused and that Mr Aggarwal would lodge an application with the Administrative Appeals Tribunal (“the Tribunal”). A decision to refuse an employer nomination is a reviewable decision under Part 5 of the Act[1]. It appears that no application for review of the refusal of the nomination application was made.
[1] Migration Act, section 338; Regulation, 4.02(4)(e), 5(d).
On 9 July 2018, the first plaintiff received by email a copy of the letter from the Department of Home Affairs (“the Department”), dated 6 July 2018, advising of the refusal of the nomination application and indicating that that refusal would mean that her visa would not be approved. The letter invited the first plaintiff to consider withdrawing her application, and further advised that if she did not respond to the letter within 28 days and if she did not withdraw her application, the application would be refused. In circumstances in which the Department’s letter of 6 July 2018 was transmitted to the first plaintiff’s authorised recipient by email, the first plaintiff is taken to have received it on 6 July 2018.
On 6 August 2018, the Minister’s delegate decided to refuse the first plaintiff’s visa application. Notice of the delegate’s decision was sent to Mr Aggarwal by email on that day. The delegate’s reasons for the refusal were that the refusal of Veeva’s nomination of the first plaintiff meant that she did not satisfy clause 187.233(3) in Schedule 2 of the Regulations. The visas of the second, third and fourth plaintiffs were refused as a necessary consequence of the primary applicant’s failure to satisfy a criterion for the grant of the visa. Again, under the scheme of the Act, the first plaintiff is taken to have received notice of the visa refusal decision on the date it was transmitted by email to her authorised recipient for such communications.
Mr Aggarwal did not inform the first plaintiff of the visa refusal decision or furnish her with a copy of it before 1 November 2018. In the interval, the plaintiff became increasingly concerned about her status under the Act. She made several inquiries of Mr Aggarwal who assured her that everything was in order.
The first plaintiff knew that her 457 visa was due to expire on 31 October 2018. On that day she sent a text message to Mr Aggarwal, noting that she had checked her ImmiAccount and could not see that she had been granted a bridging visa. Mr Aggarwal responded that the first plaintiff should check the following day.
On 1 November 2018, the first plaintiff called on Mr Aggarwal at his office. Mr Aggarwal told her that he had forgotten to lodge an application for a bridging visa. On the same day, Mr Aggarwal filed applications for review of the visa refusal decisions in the Tribunal and Mr Aggarwal paid the fees for the same. The first plaintiff was not informed of the filing of the applications, nor was she asked to reimburse Mr Aggarwal for the fees that he had paid in connection with them. Later that day Mr Aggarwal sent the first plaintiff an email attaching the delegate’s reasons for the visa refusal decision.
On 2 November 2018, the Tribunal wrote to Mr Aggarwal, as the plaintiffs’ authorised recipient, attaching a letter advising the plaintiffs that their applications for review were lodged out of time. The letter invited the plaintiffs to comment on whether valid applications had been made.
On 8 November 2018, the first plaintiff stopped taking Mr Aggarwal’s calls or responding to his text messages. On that day, Mr Aggarwal sent the first plaintiff an email attaching a form issued by the Tribunal providing for the withdrawal of a migration review application. Mr Aggarwal also attached a copy of the Tribunal’s letter dated 2 November 2018 which was the first notice the first plaintiff had received of that letter.
On 18 February 2019, the Tribunal determined that it did not have jurisdiction to entertain the plaintiffs’ review applications. It reasoned that under section 347(1)(b) of the Act and regulation 4.10 of the Regulations an application for review of the delegate’s decision must be made within 21 days of the receipt of notice of the decision. The plaintiffs were by operation of sections 494C(5) and 494D(2) of the Act taken to have received the notification of the delegate’s decision on 6 August 2018. The period to apply for review ended on 27 August 2018 and the Tribunal was without power to extend that period.[2]
The relief that the plaintiffs claim in this application is with respect to the delegate’s visa refusal decision made on 6 August 2018. The plaintiffs rely on three grounds for the relief claimed:
[2] Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at 83 per Justices McKerracher, Reeves and Thawley.
1.The delegate’s decision “was affected by jurisdictional error in that the delegate did not take into account the information and documents provided in relation to the application for nomination, refusal of which led to the refusal of the visa application”.
2.“The Plaintiffs were deprived of their right to seek review by the Administrative Appeals Tribunal as a result of the unlawful/fraudulent acts and breach of the Plaintiffs’ migration agent’s obligations”.
3.“[b]ut for the actions of the Plaintiffs’ migration agent, the applicant satisfied the criteria for a subclass 187 visa”.
No particulars are given of the information or documents that are the subject of the first ground. Notably the reference is to information or documents in relation to the decision to refuse the application for nomination, which is anterior to and separate from the visa refusal decision.
As the Minister submits, any failure to take into account information and documents which were furnished in relation to the nomination application can hardly be said to give rise to jurisdictional error in connection with the visa refusal decision.
The delegate’s obligation in deciding whether to grant or refuse to grant an application for a visa is to have regard to all the information in the application. Information is in the application if it is set out in the application or in a document attached to the application when it is made or if it is additional relevant information given to the Minister before the decision to grant or refuse the visa has been made.[3]
[3] Migration Act, sections 54 and 55.
The visa refusal decision followed the refusal of the nomination application. As the Minister submits, the plaintiffs’ true complaint is with the latter decision and the proper course was to apply for review of that decision. The endeavour to challenge the delegate’s visa refusal decision on the first ground is untenable.
By their second ground the plaintiffs appear to submit that fraud or other unlawful conduct by their migration agent deprived them of the right to seek review of the visa refusal decision in the Tribunal. It is unnecessary and for that reason inappropriate to embark on any consideration of whether Mr Aggarwal’s conduct may be said to have amounted to a fraud having the effect of stultifying the operation of the Act’s scheme for review of the visa refusal decision. As noted, the relief here claimed is with respect to the delegate’s decision made on 6 August 2018. There is nothing in the application or the material filed in support of it to support any finding that Mr Aggarwal’s conduct affected the delegate’s decision‑making function. The second ground is without merit.
As the Minister notes, the plaintiffs have the possibility of a remedy, to the extent that they seek to demonstrate that the Tribunal’s decision was vitiated by a fraud perpetrated upon it and them, in that it is open to the plaintiffs to apply for an extension of time in which to bring an application for judicial review before the Federal Circuit Court of the decision.
The plaintiffs’ third ground is the unparticularised assertion that but for the actions of the plaintiffs’ migration agent the first plaintiff satisfied the criteria for the grant of a subclass 187 visa. This ground too is without merit. The delegate was required to assess the first plaintiff’s visa application against the criteria in the Act and Regulations. The delegate correctly identified the criteria, including clause 187.233(3), which required that the Minister had approved the nomination. The Minister had not approved the nomination and the only decision open to the delegate on the information before him or her was to refuse to grant the visa.
Given my view that none of the grounds of the application have merit, I am not satisfied that it is in the interests of the administration of justice to make an order extending time by some 170 days in which to bring the application.
The plaintiffs submit that an order for costs should not be made in the event that their application is refused because it would cause extreme hardship to the first plaintiff who has two children of school age and is in possession of a limited income. The Minister seeks his costs. The impecuniosity of a plaintiff alone does not provide any principled basis for departing from the general rule that costs follow the event and the plaintiffs do not point to any other circumstances warranting a departure from that rule.
For these reasons, there will be the following order: the application is dismissed with costs.
Before calling the next matter the Court will adjourn shortly in order that the video link may be closed down.
AT 10.19 AM THE MATTER WAS CONCLUDED
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