Horne v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 95
Federal Circuit and Family Court of Australia
(DIVISION 2)
Horne v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 95
File number(s): MLG 1902 of 2019 Judgment of: JUDGE LAING Date of judgment: 14 February 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Temporary Business Entry (Class UC) (Subclass 457) visa – application for summary dismissal – where proposed employer did not have an approved nomination – allegations that the Tribunal failed to properly review the decision before it, denied the applicant procedural fairness and failed to act in a way that was fair and just – allegations that the Tribunal acted improperly and unreasonably – whether reasonable prospects of success – application dismissed pursuant to r 13.13(a). Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Migration Act 1958 (Cth) ss 338, 348, 353, 357, 359A, 368, 379C
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458
Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41
KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Laing, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6; (1996) CLR 259
Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473
Subramaniam v Minister for Home Affairs [2021] FCCA 355
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 14 February 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared via video-link Solicitor for the First Respondent: Mr J Mintz (Clayton Utz) appeared by video-link Counsel for the Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 1902 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANDOLF LEONARD HORNE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
14 February 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The application filed 18 June 2019 be dismissed pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent’s costs fixed in the amount of $3,930.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 35.13 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Temporary Business Entry (Class UC) (Subclass 457) visa (457 visa).
The Minister has made an application for summary dismissal, pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
For the following reasons, I accept that it would be appropriate to dismiss the application for judicial review.
BACKGROUND
The applicant applied for a 457 visa on 20 August 2017, relying upon a nomination application made by Lentils and All Pty Ltd (Prospective Employer). The nomination was refused on 12 September 2018.
By letter dated 12 September 2018, the applicant was invited to comment on information that the Prospective Employer did not have an approved nomination for the applicant at the date of the letter. The letter noted that this would mean that his visa application would be unable to be approved. The applicant did not respond.
The Delegate refused the 457 visa application on 15 October 2018. The Delegate observed that the Prospective Employer did not have an approved nomination in place for the applicant. Accordingly, the Delegate found that the criterion in cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 31 October 2018, the applicant applied to the Tribunal for review of the Delegate’s decision.
The Prospective Employer also applied to the Tribunal for review of the Delegate’s decision to refuse the nomination application. On 17 April 2019, the Tribunal affirmed the decision not to approve the nomination.
On 30 April 2019, the Tribunal invited the applicant to comment upon the following:
•The applicant was nominated by Lentils and All Pty Ltd for a position of Café or Restaurant Manager (ANZSCO 141111).
•The nomination application made by Lentils and All Pty Ltd was refused by the Department on 12 September 2018.
•Lentils and All Pty Ltd applied for review of this decision at the Tribunal on 2 October 2018.
•On 17 April 2019 this Tribunal affirmed the decision not to approve nomination made by Lentils and All Pty Ltd.
This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.
If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the applicant does not meet the criteria contained within clause 457.223(4)(a).
The applicant’s comments or response were required by 14 May 2019. No response was received by that time, or subsequently before the Tribunal’s decision.
On 27 May 2019, the Tribunal affirmed the Delegate’s decision not to grant the visa.
ReLEVANT CRITERION
The criterion at issue before the Tribunal was cl 457.223(4)(a) of Schedule 2 to the Regulations, which provided:
457.223
…
Standard business sponsorship
…
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75…
TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[8], including its sending of the s 359A letter and the lack of response.
The Tribunal considered whether to adjourn the review as follows (at [9]-[15]) (footnotes omitted):
9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 30 April 2019.
10. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs1 and Manna v Minister for Immigration and Citizenship2 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li3 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh4 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection5 where analogous issues were discussed.
11. The Tribunal considered whether, in the circumstances of this case, the applicant's comments on or response to the information contained in the Tribunal's s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.
12. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 30 April 2019. The applicant did not provide comments and/or or response within the prescribed periods set for this purpose.
13. The Tribunal has had regard to the fact that the visa application was refused by the Department on 15 October 2018, because the applicant was unable to meet the cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate's' decision for more than seven months.
14. The Tribunal note that, if the applicant is not granted a temporary work visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a temporary visa once the applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.
15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
The Tribunal then reasoned as follows (at [17]-[19]):
17.Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
18.Based on the evidence before it, the Tribunal finds that the applicant is not, at the time of the Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased. The Tribunal finds that the applicant does not satisfy cl. 457.223(4)(a).
19.For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
On this basis, the Tribunal affirmed the Delegate’s decision (at [20]).
SUMMARY DISMISSAL: SOME RELEVANT PRINCIPLES
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides as follows:
143 Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5)This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.
Note: For the power of the Federal Circuit and Family Court of Australia (Division 2) to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975, see section 45A of that Act.
Rule 13.13 of the Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether there is a real or genuine dispute as to any material fact(s) upon which the Court may reasonably find for the non-moving party: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41 at [6]; AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] and Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7].
proceedings before this court
The applicant commenced the proceedings before this Court through an application filed on 18 June 2019. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The Tribunal denied the applicant procedural fairness and/or failed to exercise its jurisdiction by failing to provide the applicant ample opportunity and time to respond to the matters and queries sought by the Tribunal.
2.The Tribunal erred in finding that the applicant's visa should be refused and failed to give proper weight and consideration to the earlier documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it by discounting the evidence before it.
3.As procedural fairness was not accorded by the tribunal to the applicant, the tribunal erroneously concluded that it had to affirm the decision of the delegate, and is accordingly in breach of the applicant's right to natural justice by:
a.Failing to explore and make proper enquiries into their erroneous conclusion that the applicant did not meet the primary criteria for the visa as set out in cl.457.223(4) in Part 500 of Schedule 2 of the Regulations; and
b. Not considering the evidence that was already before it.
4.The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
5.The Tribunal has further breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
6. The decision of the Tribunal under review was and is invalid in that:
a)the Second Respondent ("the Tribunal") wrongly held that the visa should be refused;
b)the Tribunal reached a mistaken conclusion that the applicant did not meet the primary criteria in cl.457.223(4) set out in Part 500 of Schedule 2 of the Regulations.
c)the Tribunal was mistaken as to its finding there was insufficient evidence to satisfy the primary criteria.
d)The Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
Ground 1
By ground 1, the applicant contended that the Tribunal had not provided him with sufficient time or opportunity to respond to matters that had been raised.
However, the invitation to comment complied with the minimum prescribed period that the Tribunal was obliged to provide to the applicant for his response, which was 14 days after the invitation was received: reg 4.17 of the Regulations. This was in circumstances where the applicant was taken to have received the invitation on 30 April 2019 (s 379C(5) of the Act) and the applicant’s comments or response were sought by 14 May 2019.
The applicant does not appear to have sought any further time to respond to the invitation. As the applicant did not respond to the invitation within the required period (or at all), the applicant lost his entitlement to a hearing under s 360 of the Act: see Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [25]-[32]. In these circumstances, I see no reasonably arguable basis for contending that it was not open to the Tribunal to have proceeded as it did. The Tribunal gave intelligible reasons for doing so at [6]-[15] of its decision. Those reasons included that the Tribunal was satisfied that the applicant had been given sufficient opportunity to provide any comments and response but had provided no response to its invitation that he do so.
Grounds 2 and 3
Ground 2 and particular (b) of ground 3 contended that the Tribunal didn’t consider the evidence that was before it and/or failed to accord it proper weight.
I accept that the Tribunal did not expressly refer in its decision to all documents and information that had been provided by the applicant in support of his application. Such documents included evidence of the applicant’s qualifications and employment history. However, it is well accepted that the Tribunal is not required to refer to every item of evidence before it. Non-reference to a particular item does not necessarily mean that it was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].
I accept the Minister’s submission that the more likely inference in this case to be drawn is that the Tribunal found that the documents it did not refer to were not material to its decision. This was in the context of the only issue before the Tribunal being the applicant’s ability to meet cl 457.223(4)(a). Other documents before the Tribunal, such as those going to the applicant’s qualifications and experience, were incapable of demonstrating that the applicant had the requisite approved nomination. I also accept the Minister’s submission that even if some part of this evidence had not been considered by the Tribunal, it has not been demonstrated that such an error would have been material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
Ground 3
Ground 3 otherwise contended that the Tribunal failed to make “proper enquiries”. However, there is no general obligation upon the Tribunal to inquire: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]. In any event, the only inquiry relevant to the Tribunal’s decision in this case was how the applicant could meet cl 457.223(4)(a) in circumstances where refusal of his proposed nomination had been affirmed. That inquiry was made by the Tribunal.
Ground 4
Ground 4 contended that the Tribunal breached a number of sections of the Act, namely s 338, 348, 353 and 357A. This was said to have occurred by the Tribunal failing to review properly the decision before it and failing to act in a way that was fair and just.
Section 338 of the Act concerns the definition of a Part 5-reviewable decision. Section 348 of the Act generally obliges the Tribunal to review Part 5-reviewable decisions where an application for review has been properly made. Section 353 of the Act provides that the Tribunal is “not bound by technicalities, legal forms or rules of evidence”, and “shall act according to substantial justice and the merits of the case”.
Section 357A limits the natural justice hearing rule under Part 5 of the Act, and provides that in applying the provisions under Division 5 of Part 5, “the Tribunal must act in a way that is fair and just.” However, such provisions are not an independent source of rights for an applicant, but condition the exercise of the Tribunal’s powers under Part 5 of the Act: see Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 at [58].
It is not apparent how jurisdictional error could arguably be demonstrated in this regard by the applicant’s reference to these provisions.
Ground 5
Ground 5 contended that the Tribunal breached s 368 of the Act by failing to “provide proper reasons” for its decision and its findings on material questions of fact.
I see no arguable basis for finding that the Tribunal’s reasons were relevantly inadequate. Whilst the Tribunal’s reasons were relatively concise in this case, their basis was nonetheless clear.
The Tribunal found that the applicant was not at the time of its decision the subject of an approved nomination. It therefore found that the applicant was unable to meet this requirement in cl 457.223(4)(a) of Schedule 2 to the Regulations.
In any event, breach of s 368 of the Act is not of itself demonstrative of jurisdictional error: see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [46]-[47] and [85].
I am not persuaded there is an arguable basis for finding that jurisdictional error occurred by reference to this provision in the circumstances of this case.
Ground 6
Ground 6 contended that the Tribunal wrongly held that the visa should be refused, was mistaken in finding that there was insufficient evidence for the applicant to meet the criterion in issue, and acted improperly and unreasonably by affirming the decision of the Delegate.
However, as I explained earlier, the Tribunal’s reasons in this case do provide an intelligible basis for its decision. This was that the applicant had not demonstrated that he had an approved nomination and was, therefore, unable to meet this criterion for the grant of the visa.
To the extent that the applicant disagrees with the Tribunal’s decision, as I explained during the hearing, this Court is unable to re-evaluate the merits of the Tribunal’s decision in the sense of deciding for itself whether or not he meets the criteria for the visa. This Court has no jurisdiction to conduct merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
I am not persuaded that ground 6 raises an arguable basis for finding jurisdictional error.
Futility
I also note that in written submissions, the Minister additionally submitted that remittal to the Tribunal would be futile. There are a number of previous decisions of this Court that have accepted such an argument, including Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458 at [32] to [33] and Subramaniam v Minister for Home Affairs [2021] FCCA 355 at [21]. However, the recent decision of Rares J in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 has taken a different view. For this reason, by the time of the hearing, the Minister’s submissions focused on the primary argument that, regardless, there was no arguable basis for finding jurisdictional error in this matter. I accept the Minister’s primary argument.
conclusion
For the foregoing reasons, I find that the application for judicial review before the Court lacks reasonable prospects of success such that it should be dismissed pursuant to r 13.13(a) of the Rules.
The Minister seeks costs fixed in the amount of $3,930. The applicant did not seek to contest this amount. I am satisfied that the amount sought is appropriate, having regard to the work performed in this matter and the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the parties.
45 I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 14 February 2023
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