Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 326
•7 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 326
File number(s): SYG 1266 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 March 2024 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Temporary Skill Shortage (class GK) (subclass 482) visa – whether the Administrative Appeals Tribunal had jurisdiction – no jurisdiction - application dismissed Legislation: Migration Act 1958 (Cth) ss 66(2)(d)(ii), 140GB, 338(2)(d)(i), 360.
Migration Regulations 1994 (Cth) cl 482.212 of Schedule 2
Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
BMY18v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 7 March 2024 Date of hearing: 7 March 2024 Place: Parramatta Counsel for the Applicants: Mr Nair Solicitor for the Applicants: M S Nair & Co Counsel for the Respondents: Mr Hall Solicitor for the Respondents: The Australian Government Solicitor ORDERS
SYG 1266 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MIR WASITUL HASAN
First Applicant
MOUSUMI RAHMAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants are to jointly and severely pay the first respondent’s costs fixed in the sum of $7,700.00.
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
(As revised from the ex-tempore transcript)JUDGE D HUMPHREYS
INTRODUCTION
The primary and secondary applicants are citizens of Bangladesh. The primary applicant applied for a Temporary Skill Shortage (Class GK) visa on 6 July 2018. The secondary applicant was included in the application as part of the family unit.
A delegate of the Minister refused to grant the primary applicant’s visa on 19 February 2019. The delegate was not satisfied that cl 482.212 of Schedule 2 of the Migration Regulations 1994 (Cth) was met. Further, the delegate refused to grant the secondary applicant’s visa on the basis that the primary applicant was not granted his visa. The applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for merits review of the delegate’s decision.
On 29 October 2019, the Tribunal wrote to the applicants and invited them to comment or respond to information that was considered, to form part of the reasons for affirming a decision under review. That document included the following:
I am of the view that the application for review of decision for Mr Mir Wasitul Hasanis invalid. At the time of the delegate’s decision to refuse to grant the visa, Mr Mir Wasitul Hasan was not identified in an approved nomination that has not ceased. Nor was there a valid and pending application for review before us of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act. However this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 12 November 2019. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 12 November 2019, the applicants replied to the Tribunal’s letter. The applicant’s representative submitted that the partner’s refusal notification failed to comply as required with s 66(2)(d)(ii) of the Act. Information regarding appeal rights was also not clearly conveyed to the applicant and, therefore, the notice was defective. The representative opined that the Tribunal had jurisdiction.
On 23 April 2020, the Tribunal found it did not have jurisdiction with regard to the primary applicant. That was on the basis that the applicant as at the time of the Tribunal’s decision did not meet the requirements of s 338(2)(d) of the Act, which sets out the relevant requirements for a temporary visa in relation to a sponsor.
I note that there may be some confusion as to what version of the Act that the Tribunal used. I have been taken to the old version of the Act. I am satisfied that in either version of the Act, the Tribunal was correct to determine that, as at the time of its decision, the applicant was not the subject of an approved nomination, nor was there before the Tribunal an application for review of that decision. Having found that it did not have jurisdiction, the Tribunal determined not to grant the applicant his visa. The Tribunal subsequently invited the secondary applicant to appear before it. The Tribunal found that because the first applicant did not have a visa it could not grant the secondary applicant her visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEAL TRIBUNAL’S DECISION
In the Tribunal’s decision at paragraphs [8] to [20], Tribunal had regard to the jurisdiction as to the primary applicant. They relied on DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (‘DFQ17’), where the Court found that a departmental notification letter for a Part 7 protection reviewable decision sent by post did not comply with the requirement to stay the time of which the application for review may be made; they made reference to s 66(2)(d)(ii) of the Act which requires this.
The Tribunal also made reference to Ali v Minister for Home Affairs [2019] FCA 1102 (‘Ali’), where the Federal Court distinguished DFQ17 in finding that a notification for a Part 5 migration reviewable decision, which this matter is, which was sent by email and included information to determine the time period to lodge a review application in three places within the notification was valid. In Ali, the factual complexities of DFQ17 are all present. The Court found the email notifications conveyed sufficient information to determine the time period to lodge a review application. At paragraph [10], the Tribunal also made reference to the applicant’s submissions dated 17 April 2020, where they relied on DFQ17 and BMY18v Minister for Home Affairs [2019] FCAFC 189.
In this submission, the applicant noted that those two authorities should leave the Tribunal to conclude the email notification must be considered so it can be adduced as to whether it clearly stated the review application was made. The Tribunal ultimately found that the circumstances of their review application were indistinguishable from Ali. It was satisfied that the notification to the applicants was valid, and information regarding appeal rights of review were clearly conveyed to both applicants. From paragraph [21] to [29] of the Tribunal’s decision, it referred to the primary visa applicant’s application for review.
The Tribunal found due to the reasoning of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 it did not have jurisdiction under s 338(2)(d)(i) of the Act in light of the primary applicant. As the primary applicant’s occupation nomination had not been approved under s 140GB of the Act, it was a situation whereby the Tribunal could not grant a visa to the secondary applicant.
CONSIDERATION
A number of grounds of judicial review were initially filed. At the hearing before the Court, the applicant confirmed that they only wished to press in relation to one matter, that being, that the Tribunal did not invite the first applicant to a hearing. As a result, this was a failure by the Tribunal to make its decision, and this failure made the decision invalid.
It was submitted that what compounded the situation was the Tribunal made an adverse decision against the first applicant. Such failures by the Tribunal resulted in the Tribunal invalidly exercising its power and, therefore, the decision was an invalid exercise of its power. It was submitted that, had the Tribunal provided the first applicant with the opportunity to be present at the hearing, the first applicant would have had the opportunity to ask the Tribunal to have the matter adjourned to enable him, being the first applicant, to avail himself of various courses of action open to him. The failure by the Tribunal to provide the applicant with the opportunity to be heard at the Tribunal deprived him of those opportunities. Regardless of such opportunities, the Tribunal, it was stated, exercised its powers invalidly and thereby rendered its decision invalid.
A further ground of appeal was pressed, and that was that the Tribunal’s decision was legally unreasonable. However, if the Court finds against the applicant in relation to the first ground, the third ground falls away.
The respondent submitted that the applicant’s submission is that the Tribunal did not invite the primary applicant to a hearing and failed to consider that the Tribunal found it did not have jurisdiction to review the first applicant’s application for review. Further, it was submitted that the applicant overlooked the statutory context and the content of the 29 October letter, which I have read out. As the applicant submitted, the Tribunal wasn’t required to invite both named applicants to the hearing.
The first respondent submitted that the 29 October letter had only informed the applicants of the basis upon which it appeared to the Tribunal it did not have jurisdiction to review the decision made by the Department. The first respondents dispute the applicant’s contention that the letter in question had advised the primary applicant that he would be invited to the hearing.
I am satisfied that the letter itself is quite clear. The applicants were advised that if there was no jurisdiction they would be provided with a written statement of the decisions and reasons in relation to the first applicant as to the basis upon which the Tribunal found it did not have jurisdiction.
The first respondent submitted that the Tribunal’s decision was correct because it did not, in fact, have a Part 5 reviewable decision to review with respect to the first applicant. The first respondent submitted that s 360 of the Act did not operate in those circumstances to require it to hear from the first applicant, having gone through the process that it did by writing to the applicant in the 29 October letter and inviting submissions in relation to whether or not it had jurisdiction. It was submitted that the notification met the statutory requirements. Further, the notification for the second applicant was sent by email. It was materially identical to that in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31.
The first respondent also relied upon the judgment of Edelman J in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (‘Benissa’) at paragraphs [32] to [36]. In that judgment, his Honour found that where there was no Part 5 reviewable decision under s 338(2)(d) of the Act s 360 did not operate to require the Tribunal to hear from the applicant. Now, it is common ground in relation to the parties that, as at the time of the decision, the first applicant did not meet the requirements of cl 482.212 of Schedule 2 to the Regulations as the primary applicant did not have an approved nomination in place, nor was there an application before the Tribunal for a review of a decision to refuse the nomination by the employer.
In my view, the submission that, had the applicant been invited to appear at the hearing he could have pursued various courses of action, which are unspecified, has no merit. The Tribunal was under no obligation to provide the applicant with an opportunity to present his best case. In my view, the decision of Benissa at paragraph [32] is a complete answer to the submission that the applicant was denied procedural fairness. At paragraph [32], Edelman J said the following, having set out the history of the matter:
In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction.
His Honour then goes on to state four reasons. These include that the construction of s 425 in SZEYKv Minister for Immigration and Citizenship [2008] FCA 1940, concerning the construction of section 425 was not plainly wrong. He considers it is plainly right. He goes on at [34] to find that:
… the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction.
His Honour then refers to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2:
…that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction…
His Honour opines:
… it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
His Honour then goes on, fourthly, to say that:
… the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
In my view, the circumstance is outlined by Edelman J, although the case was slightly different, but the conclusions arrived at by his Honour are entirely transferrable to this case.
DISPOSITION
In my view, where the Tribunal found, as correctly as it did that it had no jurisdiction, it was under no obligation to invite the first applicant to attend the hearing. No jurisdictional error accordingly arises in respect of the first applicant.
In respect of the second applicant, the position is slightly different. The second applicant was invited to attend a hearing. The Tribunal correctly, in my view, found that because the first applicant did not have a nomination in place, or approved nomination in place, the secondary applicant, as they were part of a family unit and relied upon the first applicant’s status in relation to their visa, could not be also granted a visa. No jurisdictional error arises in respect of the decision in relation to the secondary applicant.
In the Court’s view, the application must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex – Tempore Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 11 April 2024
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