Flamenco Quintero v Minister for Immigration

[2015] FCCA 1721

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLAMENCO QUINTERO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1721

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Employer Nomination (Residence) (Class BW) visa – whether failure to give genuine and proper consideration to issue – whether failure to afford procedural fairness concerning documents to be provided – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Part 5 Division 5, ss.57, 65, 359A, 359B, 360, 360A, 362B(1), 379A, 379G, 425, 426A, 474, 476

Migration Regulations 1994 (Cth), reg.5.19(4), Sch.2, cll.856.221, 857.213(a), 857.221

Minister for Immigration & Citizenship v SZKTI & Anor [2009] HCA 30, (2009) 238 CLR 489, (2009) 83 ALJR 1017, (2009) 258 ALR 434, (2009) 110 ALD 238
Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZRKY v Minister for Immigration & Citizenship [2013] FCA 352; (2013) 141 ALD 32
SZSGA v Minister for Immigration Multicultural Affairs & Citizenship [2013] FCA 774
SZTAH v Minister for Immigration & Anor [2014] FCCA 2001
SZTDX v Minister for Immigration & Border Protection [2014] FCA 515
SZTXE v Minister for Immigration & Border Protection [2015] FCA 493

Applicant: JULIO ALBERTO FLAMENCO QUINTERO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 165 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 22 June 2015

Date of Last Submission: 22 June 2015

Delivered at: Perth

Delivered on: 25 June 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS (made on 22 June 2015)

1. The application be dismissed.

2. Reasons for Judgment to be published from Chambers at a later date.

3. Applicant pay the First Respondent’s costs in the sum of $5800 by 22 July 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 165 of 2014

JULIO ALBERTO FLAMENCO QUINTERO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 16 June 2014, the applicant, Julio Alberto Flamenco Quintero (“Mr Flamenco Quintero”) seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal”) made on 20 May 2014 (“Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), dated 1 August 2013 to refuse to grant an Employer Nomination (Residence) (Class BW) visa (“Employer Nomination Residence Visa”) to Mr Flamenco Quintero.

2. When the matter was heard by the Court on 22 June 2015 the Court, having read the Tribunal Decision, the Judicial Review Application, Mr Flamenco Quintero’s affidavit sworn 13 June 2014 (“Mr Flamenco Quintero’s Affidavit”) in support of the Judicial Review Application and the Minister’s Outline of Submissions, and being satisfied that the Judicial Review Application ought to be dismissed, made the following orders:

   1. The application be dismissed.

   2. Reasons for Judgment to be published from Chambers at a later date.

   3. Applicant pay the First Respondent’s costs in the sum of $5800 by 22 July 2015.

   These are the Reasons for Judgment referred to in order 2 above.

Background to the Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)Mr Flamenco Quintero is a citizen of El Salvador, born on 28 May 1961, who arrived in Australia on 1 October 2009: CB 22;

   b)Mr Flamenco Quintero had previously travelled to Australia in 2005, 2006 and 2008 as a visitor: CB 23;

   c)on 7 June 2012 Mr Flamenco Quintero signed an application for employer sponsored migration to Australia in support of an application for the Employer Nomination Residence Visa. Mr Flamenco Quintero appointed a migration agent to represent him in his Employer Nomination Residence Visa application: CB 28 and 31-33. The Employer Nomination Residence application was lodged on 28 June 2012: CB 10-30;

   d)an employer nomination under the Regional Sponsored Migration Scheme was also lodged with the Department on 28 June 2012 and indicated that the Employer Nomination Residence Visa application was made on the basis of Mr Flamenco Quintero’s proposed employment as an office manager at San Churro Mandurah, and that the nominator was Revelo and Associates Pty Ltd (“Nominator”) (CB 114-138). The Nominator appointed a migration agent, being the same migration agent who represented Mr Flamenco Quintero;

   e)on 30 January 2013 the Delegate wrote to the Nominator requesting more information as to why the Nominator’s business required an office manager: CB 151-154;

   f)on 13 February 2013 the Nominator provided a written response regarding the need for an office manager: CB 157-158;

   g)on 1 May 2013 the Delegate determined that the Nominator did not meet reg.5.19(4)(a) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) on the basis that there was no need for the position of office manager in the Nominator’s business and therefore the nomination was refused: CB 160-166;

   h)on 25 June 2013 the Delegate wrote to Mr Flamenco Quintero’s representative pursuant to s.57 of the Migration Act noting that the Nominator’s application had been refused and providing an opportunity for Mr Flamenco Quintero to comment on that adverse information: CB 168-170. Mr Flamenco Quintero was given 28 calendar days to respond to that request, but there is no evidence of a response;

   i)on 1 August 2013 the Delegate refused to grant Mr Flamenco Quintero the Employer Nomination Residence Visa on the basis that he did not satisfy cl.857.221 of Schedule 2 to the Migration Regulations because the appointment mentioned in cl.857.213(a) of Schedule 2 to the Migration Regulations was not approved: CB 172-177;

   j)Mr Flamenco Quintero applied to the Tribunal for a review of the Delegate’s Decision on 15 August 2013: CB 178-189. Mr Flamenco Quintero continued to be represented by his migration agent. The Nominator (represented by the same migration agent as Mr Flamenco Quintero) also applied to the Tribunal for a review of the Delegate’s Decision refusing the Nominator’s application;

   k)on 26 February 2014, pursuant to ss.360, 360A and 379A of the Migration Act, the Tribunal invited Mr Flamenco Quintero to appear before it to give evidence and present arguments: CB 195-197. The invitation specified the date, time and location of the Tribunal hearing, and Mr Flamenco Quintero was advised that if he did not attend the Tribunal hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it: CB 196. The Tribunal also advised that the Tribunal hearing would be a combined hearing with the related case of the Nominator’s application for review of the Delegate’s Decision refusing the Nominator’s application: CB 196;

   l)the Tribunal requested that any additional documents or information that Mr Flamenco Quintero wished to rely on during the hearing be provided to the Tribunal by 17 April 2014: CB 197. Mr Flamenco Quintero did not provide any documents to the Tribunal in response to that invitation;

   m)on 24 April Mr Flamenco Quintero, his migration agent and the Nominator attended the Tribunal hearing and gave evidence: CB 198-200;

   n)on 28 April 2014 the Tribunal affirmed the Delegate’s Decision refusing to grant the Nominator’s application: CB 207-213; and

   o)on 29 April 2014, pursuant to s.359A, 359B and 379A of the Migration Act, the Tribunal wrote to Mr Flamenco Quintero’s representative and invited comment in relation to the Tribunal Decision refusing to grant the Nominator’s application: CB 216-218. The Tribunal advised Mr Flamenco Quintero why that information was relevant to his matter, namely that without evidence of the approval of the relevant nomination of an appointment he could not satisfy the provisions of cll.857.221 or 856.221 of Schedule 2 to the Migration Regulations: CB 217. The Tribunal requested that Mr Flamenco Quintero respond to that invitation in writing by 13 May 2014. The Tribunal advised that if no response was received within the period allowed, or within a further period if a request for further time was requested and allowed, the Tribunal may make a decision without taking any further action: CB 217. No response was received by the Tribunal: CB 224 at [6].

Tribunal Decision

1. The relevant parts of the Tribunal Decision are fairly short, and are set out in full, as follows:

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 August 2013 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

   2. The applicant applied for the visa on 28 June 2012 on the basis of proposed employment in the position of Office Manager (ANZSCO 512111). The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations) by the applicant’s sponsoring employer Revelo and Associates Pty Ltd trading as San Churro Mandurah.

   3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19( 4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

   4. The delegate refused to grant the visa because [the] appointment mentioned in cl.857.213(a) Schedule 2 to the Regulations was not approved, and that the applicant did not meet cl.857.22l(a).

   5. The Tribunal conducted a combined hearing with MRT file 1306939 on 24 April 2014. Mr Julio Alberto Flamenco Quintero gave evidence at the hearing. Mr Juan Carlos Revelo Quintero and Mrs Clarisa Revelo gave evidence on behalf of Revelo and Associates Pty Ltd.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   6. On 29 April 2014 the Tribunal wrote to the applicant pursuant to s.359A inviting him to comment on or respond to the adverse information. The letter advised the applicant that on 28 April 2014 the Tribunal refused to approve the nomination made by Revelo and Associates Pty Ltd for the position of Office Manager (ANZSCO 512111). The letter advised the applicant that the information is relevant to the review because without evidence of the approval of the relevant nomination of an appointment he cannot satisfy the provisions at clause 857.221 or 856.221 of the Migration Regulations for the Class BW visa sought. The letter advised the applicant that if [he] does not satisfy either of these provisions the Tribunal would affirm the decision of the Department. The letter invited the applicant to provide comment or respond to the adverse information by 13 May 2014. The applicant did not respond to the Tribunal’s letter.

   Approval of appointment

   7. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19( 4) of the Regulations, and still be available to the applicant. ·Regulation 5.19(4) sets out the criteria for approval of a nominated appointment under the Regional Sponsored Migration Scheme. An application is considered against these criteria if form 1054 is used: r.5.19(1C).

   8. The issue in the present case is whether the nominated appointment is approved. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Had the applicant been nominated by an employer in accordance with the Regulations at the time of his visa application: cl.857.213(a)?

   9. At the time the visa application was made, the applicant identified Revelo and Associates Pty Ltd as his nominating employer on his application form. According to the Department’s file, Revelo and Associates Pty Ltd had applied for approval of the position of Office Manager as an approved appointment under the Regional Sponsored Migration Scheme on form 1054 and had identified the applicant as the nominee. On the basis of these Department records, the Tribunal finds that at the time the visa application was made the applicant was nominated in accordance with r.5. 19(4) of the Regulations by an employer, Revelo and Associates Pty Ltd, as required by cl.857.213(a). However, on 1 May 2013 the nomination made by Revelo and Associates Pty Ltd was not approved by the Department.

   Has the appointment been approved: cl.857.221(a)?

   10. On 28 April 2014 the Tribunal affirmed the decision refusing approval of the nomination of an appointment relevant to Mr Julio Alberto Flamenco Quintero made by the business Revelo and Associates Pty Ltd for the position of Office Manager. As a consequence, the Tribunal finds that, the appointment mentioned in cl.857.213(a) has been not been approved, and that the applicant does not meet cl.857.221(a).

   DECISION

   11. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

The Judicial Review Application

1. Mr Flamenco Quintero filed the Judicial Review Application on 16 June 2014.

2. The Judicial Review Application set out three grounds of review which are set out below: see [12], [16] and [23] below.

3. Mr Flamenco Quintero’s Affidavit was filed with the Judicial Review Application, and provided as follows:

   1. That I have provided all documents requested by the Department of Immigration and Tribunal to the best of my understanding

   2. The Tribunal was informed of this and requested time to provide documents which was not granted.

4. A Registrar of the Court made orders on 23 July 2014 permitting Mr Flamenco Quintero to file and serve an amended Judicial Review Application or any affidavit evidence by 17 September 2014 and written submissions 14 days prior to the hearing, and the Minister likewise by 1 October 2014 and 7 days before the hearing.

5. Although Mr Flamenco Quintero had not filed written submissions the Court nevertheless invited him to make oral submissions at hearing. Initially, all that Mr Flamenco Quintero submitted was that he had a migration agent, but that he did not think the migration agent gave him the right advice. The Court asked if Mr Flamenco Quintero wished to make any submissions on the three grounds of review. In relation to ground 1 Mr Flamenco Quintero submitted that:

   a)he had provided supporting documents as requested; and

   b)his migration agent did not attend the Tribunal hearing, but sent an employee who “just listened”.

   Mr Flamenco Quintero made no submissions on grounds 2 and 3.

6. The Minister relied on the filed written submissions, which it is not necessary to set out. Mr Flamenco Quintero made no submissions in reply to the Minister’s written submissions.

Consideration

Jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Ground 1

1. Ground 1 of the Judicial Review Application is as follows:

   1. The Tribunal failed to give genuine proper and realistic consideration to issue concerning applicant having supplied necessary documents to Migration Agent and had promised to provide Tribunal with documents.

2. It is an established principle that a reviewer cannot err through an application never made which might have been put on another basis. Nothing was apparent on the material before the Tribunal to suggest that the requirements of the Migration Regulations were met by Mr Flamenco Quintero’s application: SZSGA v Minister for Immigration Multicultural Affairs & Citizenship [2013] FCA 774 at [49] per Robertson J; SZRKY v Minister for Immigration & Citizenship [2013] FCA 352; (2013) 141 ALD 328 at [14] per Cowdroy J. It is not apparent what documents to be put by Mr Flamenco Quintero could have overcome the non-approval of the Nominator’s appointment which was a fundamental pre-requisite to the grant of Mr Flamenco Quintero’s Employer Nomination Residence Visa application. In the absence of any pleadings or affidavit material identifying the documents Mr Flamenco Quintero contends were provided to his representative and the basis upon which those documents were relevant to the Tribunal, ground 1 is incapable of establishing a jurisdictional error on the part of the Tribunal. Insofar as the Tribunal was required to give genuine, proper and realistic consideration to Mr Flamenco Quintero’s application it did so by considering the effect of the non-approval of the Nominator’s appointment on the grant of Mr Flamenco Quintero’s Employer Nomination Residence Visa application.

3. To the extent that Mr Flamenco Quintero alleged that there was a failure by his migration agent to give proper advice, or to attend the Tribunal hearing and that his migration agent instead sent an employee who “just listened” to the Tribunal proceedings, and that this somehow came within ground 1, the Court observes that:

   a)the advice (or any lack thereof) or actions of the migration agent or the migration agent’s “employee” do not constitute jurisdictional error by the Tribunal;

   b)nothing done by the migration agent or the migration agent’s “employee” could alter the fact of the non-approval of the Nominator’s appointment; and

   c)in any event, the Tribunal gave Mr Flamenco Quintero the opportunity to comment on the non-approval of the Nominator’s application after the Tribunal hearing, thereby obviating any difficulty (if there was any) with his representation at the Tribunal hearing.

4. It follows that no jurisdictional error arises in respect of ground 1.

Ground 2

1. Ground 2 of the Judicial Review Application is as follows:

   2. The Tribunal failed to give consideration to due process and being the first hearing, did not provide time for applicant to provide the documents provided to be produced.

2. This ground alleges two matters:

   a)a failure to give consideration to due process (or procedural fairness as it would usually be called); and

   b)that insufficient time was provided for the provision of documents by Mr Flamenco Quintero to the Tribunal.

1. Insofar as procedural fairness is concerned the Tribunal Decision demonstrates that:

   a)the Tribunal gave consideration to the relevant issue, as to whether the Nominator had the requisite approval for the position in which the Nominator sought to employ Mr Flamenco Quintero; and

   b)the Tribunal did not fail to comply with its obligation under s.360 of the Migration Act to invite Mr Flamenco Quintero to a hearing. The Tribunal invited the applicant to a hearing by sending him a letter enclosed with a letter addressed to his migration agent (who was his authorised recipient), at the address provided by Mr Flamenco Quintero.

2. The Tribunal fulfilled its statutory obligations to Mr Flamenco Quintero under Division 5 of Part 5 of the Migration Act in the conduct of the review. It gave more than reasonable opportunity to Mr Flamenco Quintero to appear before the Tribunal to give evidence and present arguments, and Mr Flamenco Quintero availed himself of that opportunity. Whether the best use was made of that opportunity was not a matter for the Tribunal: Migration Act, ss.425 and 426A; SZTDX v Minister for Immigration & Border Protection [2014] FCA 515 at [16] per Perry J; SZTXE v Minister for Immigration & Border Protection [2015] FCA 493 at [18] per Flick J.

3. There was therefore no denial of procedural fairness by the Tribunal, and therefore, no jurisdictional error by the Tribunal in this regard.

4. As to the alleged insufficiency of time ground 2 is factually incorrect. After the Tribunal hearing, the Tribunal wrote to Mr Flamenco Quintero informing him of the outcome of the application regarding the Nominator’s application and provided Mr Flamenco Quintero with 14 days in which to provide comments or a response in writing: CB 217. No response was received from Mr Flamenco Quintero providing comment or seeking further time in which to provide a response. Ground 2 therefore incorrectly alleges that the Tribunal “did not provide time for … [Mr Flamenco Quintero] to provide the documents required to be produced”. Ground 2, in its terms, must fail as the allegation it makes is unsustainable. Further, there was no obligation on the Tribunal to hold a further hearing in the circumstances where the affirmation of the decision to refuse the Nominator’s application did not raise a new or additional issue requiring an invitation for a further Tribunal hearing: Minister for Immigration & Citizenship v SZKTI & Anor [2009] HCA 30, (2009) 238 CLR 489, (2009) 83 ALJR 1017, (2009) 258 ALR 434, (2009) 110 ALD 238 at [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; SZTAH v Minister for Immigration & Anor [2014] FCCA 2001 at [39] per Judge Lloyd-Jones.

5. It follows that no jurisdictional error arises in respect of ground 2.

Ground 3

1. Ground 3 of the Judicial Review Application is as follows:

   3. Tribunal failed to provide comprehensive explanation of what documents were needed, since applicant was self represented, duty of ensuring applicant understood what Tribunal required was important.

2. Under s.379G of the Migration Act, Mr Flamenco Quintero had appointed an authorised recipient at the time of making his application for the Employer Nomination Residence Visa in June 201: CB 31-33. There is no record of Mr Flamenco Quintero varying or withdrawing the notice of appointment of an authorised recipient under s.379G(3) of the Migration Act at any time. Further, the Court Book and the Tribunal’s hearing record demonstrate that Mr Flamenco Quintero was represented throughout the application and review process: CB 28, 142, 172, 185 and 198. Ground 3 is therefore incorrect in alleging that Mr Flamenco Quintero was “self-represented”.

3. The chronology of the interaction between both the Delegate and the Tribunal with Mr Flamenco Quintero makes it clear that Mr Flamenco Quintero was on notice of the requirements that he had to satisfy for the grant of the Employer Nomination Residence Visa. Invitations to comment on adverse information about the Nominator were put to Mr Flamenco Quintero both after the Delegate’s Decision refusing the Nominator’s application and again before the Tribunal Decision affirming the Delegate’s refusal of the Nominator’s application: CB 217. There is no evidence that Mr Flamenco Quintero responded to the Tribunal’s invitation or sought clarification from the Tribunal as to the information upon which he was being asked to comment. In the absence of a response, or a request for clarification from Mr Flamenco Quintero, no “explanation” was required of the Tribunal. As explained at [19] above it was not for the Tribunal to ensure that Mr Flamenco Quintero made the best of the opportunity afforded him by the Tribunal to present his case.

4. It follows that no jurisdictional error arises with respect to ground 3.

Conclusions and orders

1. It is plain that the Tribunal understood the relevant legislation and the issues to be determined, and hence asked the correct questions in relation to Mr Flamenco Quintero’s Employer Nomination Residence Visa application. The relevant material, essentially the refusal of the Nominator’s application, was therefore within a short compass, and again was correctly identified, and also applied by the Tribunal in relation to the questions requiring resolution. In this case the Tribunal correctly referred to cl.857.221 of Schedule 2 to the Migration Regulations as requiring Mr Flamenco Quintero to hold an appointment in the business of the Nominator.

2. The Tribunal considered the correct issue by reference to the criterion in cl.857.221 of Schedule 2 to the Migration Regulations, correctly identified the relevant law and reached factual conclusions open to it on the evidence including those, in particular, at [7]-[11] of the Tribunal Decision at CB 224-225, and thereby satisfied itself that the criteria for the grant of the Employer Nomination Residence Visa had not been made out for the purposes of s.65 of the Migration Act, and therefore made a decision open to it on the evidence and within the scope of its powers under the Migration Act.

3. The Court has concluded that there is no jurisdictional error in the Tribunal Decision. The Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the Judicial Review Application must be dismissed. At the conclusion of the hearing on 22 June 2015 the Court made orders accordingly (including as to costs), as set out at [2] above.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 25 June 2015