Farhan v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 888
Federal Circuit and Family Court of Australia
(DIVISION 2)
Farhan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 888
File number(s): SYG 1133 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 186 visa refusal – no approved nomination – whether jurisdictional error is made out – no jurisdictional error made out – application is dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359, 379
Migration Regulations 1994 (Cth) Schedule 2 Part 186
cl 186. 223Cases cited: Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v Sabra Bros Tiling Pty Ltd (2011) 194 FCR 11
Minister for Immigration with Border Protection v SZMTA (2019) 264 CLR 421
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 26 October 2022 Date of hearing: 26 October 2022 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Ms Norman appeared on behalf of the First Respondent. ORDERS
SYG 1133 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD NAMID FARHAN
First Applicant
AYESHA NILUFAR
Second Applicant
TAJREEN FARHAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondents costs, fixed in the amount of $5400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants are citizens of Bangladesh. On 17 November 2016, the first applicant applied for Employer Nomination (Permanent) (Class EN) visas, under s 65 of the Migration Act 1958 (Cth) (“the Act”). At that time, the Class EN, contained one subclass, which was the Subclass 186 (Employer Nomination Scheme).The second and third applicants were included in the visa application as members of a family unit being the wife and child of the first applicant. Their visas depended upon the first applicant being granted a visa.
On 10 August 2018, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant Employer Nomination (Permanent) (Class EN) visas, because the first applicant did not meet cl 186. 223 (2) of Schedule 2 of the Regulations, as he was not the subject of an approved employer nomination.
In a decision dated 1 June 2021, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision not to grant the applicants their Employer Nomination (Permanent) (Class EN) visas.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The decision record begins from paragraph 1 to 14 by outlining the procedural background of the applicants’ visa application.
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Any other members of the family unit who are applicants for the visa, only need to satisfy the secondary criteria. Applicants who seek to satisfy the primary criteria, must meet the “Common Criteria”, as well as the criteria of one of three alternative visa streams, which are: the Temporary Residence Transition stream, the Direct Entry stream or the Labour Agreement Stream.
In this case, the first applicant was seeking the visa in the Direct Entry stream, to work in the nominated position of a Chef with FLC Lee & Lo Pty Ltd.
At paragraph 6 of the decision record, the delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations, because there was no approved nomination.
On 4 May 2021, the Tribunal notes that it wrote to the first applicant by letter, advising him that it had considered all the material before it relating to their application, but that it was not able to make a favourable decision on that information alone. The Tribunal invited the first applicant to give oral evidence and present arguments at a hearing by telephone, on 4 June 2021.
On 6 May 2021, the Tribunal again wrote to the applicants by letter, inviting the first applicant to comment or respond to information, being that his employer nominator review before the Tribunal had been affirmed. By this, the Tribunal meant that the employer nomination application had not been approved which was relevant, as it was a requirement for the grant of the visa that was sought by the applicant. The Tribunal’s letter outlined that any comments or the applicants response needed to be received by 20 May 2021. The letter also outlined that if the Tribunal did not receive written comments or a response within the period allowed or extended, they may decide the review without taking any further action to obtain the applicants information on the material. Further, the letter also outlined that if no response was received, the applicants would lose any entitlement that might otherwise have to appear before the Tribunal, to give evidence or present arguments.
On 10 May 2021, the applicants then representative responded to the hearing request, stating:
I advise I’m no longer representing the review applicant in the above-mentioned matter, and they will attend the hearing unrepresented. Please find attached, a signed form MR6 to confirm the end of my representation in the signed hearing invitation confirming the review applicant will attend unrepresented.
The Tribunal noted that the above correspondence did not address or provide any comments in relation to the letter sent by the Tribunal on 6 May 2021. It only advised that the representative was no longer acting on behalf of the applicant. No comments in respect of the Tribunal’s letter of 6 May 2021 were received by 21 May 2021
At paragraph 10 and onwards of the decision record, the Tribunal notes that it wrote to the applicants on 25 May 2021, outlining that the scheduled hearing had been cancelled as no response was received to the Tribunal’s letter of 6 May 2021 and as a consequence, they had lost the right to a hearing.
Subsequently, on both 25 and 26 May 2021, the first applicant emailed the Tribunal requesting the hearing proceed as scheduled. The applicant submitted that the response to the correspondence by his former representative on 10 May 2021 should be deemed as a response to the correspondence sent on 6 May 2021.
At paragraph 14, the Tribunal determined that the response to the hearing invitation received on 10 May 2021 did not constitute the provision of comments as requested in the letter of 6 May 2021. As they had not provided comments within the prescribed period, and no extension had been granted, the Tribunal determined that in these circumstances, s 359C of the Act applied and pursuant to s 360(3) of the Act, the review applicants were not entitled to appear before the Tribunal, and the Tribunal had no power to permit them to appear. The Tribunal determined to proceed to a decision without taking any further steps to obtain the comments or views of the applicants. Paragraphs 12 to 15 of the Tribunal decision record relates to the findings and reasons relating to whether the applicant meets all of the requirements.
At paragraph 16, the Tribunal determined that the issue in the case was whether not there was an approved employer nomination.
At paragraph 19 of the decision record, the Tribunal found that cl 186.223 (2) of the Regulations was not met, as there was no approved employer nomination in place as at the time of the Tribunal’s decision. In this circumstance, neither the first applicant nor the second or third applicants could meet the requirements for the grant of the visa sought.
Accordingly, the Tribunal affirmed the delegates decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
GROUNDS OF JUDICIAL REVIEW
The applicants rely on three grounds of judicial review. The grounds of judicial review are contained within an Initiating Application filed with the Court on 27 November 2019. The grounds are as follows verbatim:
Ground 1
The decision of the Tribunal not to proceed with a hearing is unreasonable.
Particulars
The Tribunal initially sent the invitation to hear on 04 May 2021. It is respectfully submitted that by sending such letter the Tribunal accepted and admitted that it has a legal obligation to carry out its inquisitorial hearing by providing natural justice opportunity.
The letter inviting for me to comment was sent to my then representative on 06 May 2021 and not before sending the invitation to hearing notification. I respectfully submit that invitation to hearing was sent prior to the letter inviting to comment and not verse versa. Accordingly, I respectfully submit that the Tribunal by its own admission admitted that it has a legal obligation to invite me for a hearing. If the Tribunal had in fact sent the invitation to comment before the letter inviting to attend the hearing, then the Tribunal has the right not to conduct the hearing for the failure to provide response. Therefore, it is respectfully submitted that the Tribunal has unreasonably decided not to conduct the hearing and thereby, denying natural justice opportunity and preventing me to give evidence of which I was invited to provide evidence. I further submit that I had the legitimate expectation that the Tribunal will proceed with the hearing based on the letter dated 04 May 2021.
Ground2
The Tribunal failed to in its duty as an inquisitorial inquirer failed to advise the applicant that the representation ceased and failed to send the relevant letters including the letter dated 06 May 2021 inviting the applicant to comment. It is noted that there was a reasonable period of 10 days after the cessation of representation for the Tribunal to communicate with the applicant to resend the letter to response or comment. It is respectfully submitted that as a Merit
Tribunal to oblige with its obligation to provide fair hearing owes duty to the applicant suddenly became unrepresented by advising the following:
The representation ceased on 10 May 2021.
Whether the applicant received relevant letters sent by the AAT.
The Tribunal failed to send the invitation to comment letter to the applicant when it realised or reasonably realised that the applicant has no representation.
Ground 3
The Tribunal failed to consider the response of the applicant's the representative which was sent on 10 May 2021 well before the deadline. In the letter, the representative noted that the applicant will attend the hearing. It is respectfully submitted that by saying that the applicant will attend the hearing, the letter confirmed that the applicant intended to provide his response during the hearing. It is further submitted that either Tribunal should have considered this letter as a request seeking extension or response to the concerns raised by the AAT because the letter seemed to indicate that the applicant would provide response. It is submitted that by saying that he would provide response is a relevant response for the invitation to comment letter dated 06 May 2021
THE APPLICANTS SUBMISSIONS
The first applicant appeared before the Court on behalf of all the applicants. The first applicant was unrepresented. The first applicant did not request the assistance of an Interpreter. The Court was satisfied that the first applicant was able to effectively participate in the hearing. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been served upon him. The Court ensured that the first applicant had access to a pen and paper so he could take notes during the course of the hearing if he wished to do so.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.
Notwithstanding Court orders, no written submissions or other material were supplied by the applicants in support of their case. The first applicant told the Court that he understood that in order to be granted the type of visa he sought he needed an approved employer nominator. The first applicant did not have one. The first applicant sought review at the Court in order to obtain some more time to make a further visa application and get through the COVID lockdown period. The Court noted with appreciation the candour of the first applicant as to why he was before the Court and the difficult position he was in.
CONSIDERATION
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the C/+654
0ourt is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
On behalf of the first respondent, it was submitted that by grounds one and three, the applicant contends that the Tribunal “unreasonably decided not to conduct the hearing and thereby, denying natural justice opportunity”. The applicants contended that the former representatives 10 May 2021 email confirming that the applicant would attend the hearing constituted a response to the s 359A of the Act invitation.
It was further submitted that the mandated outcome or the effect of a failure to respond to an invitation under s 359A of the Act is that of applicant loses the right to attend the hearing, and the Tribunal loses its power to permit the applicant to attend the hearing pursuant to ss 359C (2) and 363A of the Act. Questions of whether it was reasonable for the Tribunal not to proceed with the hearing do not arise in such circumstances.
It was submitted that having regard to the reasons of Jagot J in Minister for Immigration and Citizenship v Sabra Bros Tiling Pty Ltd (2011) 194 FCR 11 (“Sabra Bros”) the email from the applicant’s former representative dated 10 May 21 clearly did not constitute a “response” within the meaning of s 359C of the Act.
That email stated as follows:
I am writing in relation to the above-mentioned matter.
I advised I’m no longer representing the review applicant in the above-mentioned matter, and they will attend the hearing unrepresented.
Please find attached a signed form MR6 to confirm the end of my representation and the signed hearing invitation confirming that the review applicant will attend unrepresented.
The contact details for the review applicant are written in the hearing invitation. Should you have any questions in relation to this matter, please contact them directly.
In Sabra Bros the relevant communication which was held by Jagot J to constitute a “response” to the s 359A of the Act invitation, was as follows at [15] :
We refer to the section 351 notice [sic] and note adverse information therein. We have put the adverse information to our client, however we are instructed he would still like the opportunity for an oral hearing.
It was submitted that there was a clear difference between the information that was put in the response to the s 359A invitation in Sabra Bros in that the information that was put in the letter was characterised as ‘adverse’, the applicant still sought the opportunity to address the information in the hearing. At [31] of Sabra Bros Jagot J held that “any reply or answer directed to the information itself will constitute a response”.
It was submitted that in this case, the response did not address or refer to any of the material contained within the s 359A of the Act invitation such that it would displace the operation of
s 359C(2) and s 360(3) of the Act.
The Court is satisfied based on the material before it, that the response by the private migration agent did not constitute a response to the material contained within the s 359A of the Act letter. That being the case, the first applicant lost his right to a face-to-face hearing. No procedural unfairness occurred as a result.
Further, even if the first applicant had been granted a face-to-face hearing, there was nothing realistically that could have resulted in a different decision because he did not have an approved employer nomination: (see; Minister for Immigration with Border Protection v SZMTA (2019) 264 CLR 421 at [48]).
On behalf the respect first respondent, it was submitted that the second complaint advanced in ground one was that the applicant “had legitimate expectation that the Tribunal will proceed with the hearing based on the letter dated 4 May 2021. It was further submitted that the High Court had long abandoned any “flirtation” with the concept of legitimate expectations as a direct source of administrative rights: (see; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [60]). Further, it cannot be said that the applicant legitimately expected the Tribunal would proceed with the hearing on the basis of what it said in the 4 May 2021 hearing invitation, in circumstances where the
s 359A of the Act invitation of 6 May 2021 explicitly stated that the applicant would lose his right to attend the hearing if he did not respond to the invitation within prescribed period. The Court agrees with this submission. Ground one has no merit
Ground two contends the Tribunal should have sent the applicant a copy of the s 359A of the Act invitation after his representatives withdrew on 10 May 2021. On behalf the first respondent it was submitted by operation of s 379G of the Act, the Tribunal was taken to have given the applicant a copy of the s 359A letter when it provided it to his authorized representative. The Tribunal was under no obligation to provide further copies of documents to the applicant once his representative withdrew. It was further submitted that the applicant did not ask it to do so. The Court agrees with this submission. Ground two has no merit.
The Court also notes a further submission that even if the first applicant were able to demonstrate jurisdictional error, (which is not conceded) any remittal to the Tribunal would be futile in circumstances where there is no evidence that the sponsor, FLC Lee and Lo Pty Ltd, has sought judicial review of the Tribunal’s decision to affirm the refusal of the nomination decision of the delegate. Even if the matter were remitted to the Tribunal, the only decision open to the Tribunal would be to again affirm the delegate’s decision as the nomination application was refused and cl 187.233(3) of the Regulations requires a nomination to be so approved. The Court also agrees with this submission.
No jurisdictional error has been established in the pleaded grounds of the application. As the applicant is unrepresented, the Court has perused that the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
In these circumstances, the application must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 October 2022
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