Hossain v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 247
•17 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hossain v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 247
File number(s): SYG 2992 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 17 February 2021 Catchwords: MIGRATION – application to review decision of Administrative Appeals Tribunal – where Tribunal made different findings to the delegate about the Public Interest Criteria 4020 – whether Tribunal erred in not remitting the matter back to the delegate –where Tribunal found that the essential criteria for visa not met – where Tribunal affirmed decision of delegate for reasons different to delegate – jurisdictional error not established. Legislation: Migration Act 1958 (Cth) ss 66, 65 349, 353, 357A, 359A, 360, 363, 375, 376, 476.
Migration Regulations 1994 (Cth), cls 187.213, 187.233 of sch 2, criteria 4020 of sch 4.Cases cited: Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal & Anor [2009] FCA 1514
ALR17 v Minister for Home Affairs [2019] FCAFC 182
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Singh v Minister for Immigration [2015] FCCA 509
Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551
Kemeiv Minister for Immigration [2019] FCCA 1735
Kim v Minister for Immigration and Citizenship & Anor [2008] FCAFC 73
Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
MZXOT v Minister for Immigration & Citizenship [2008] HCA 28
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Shi v Migration Agents Registration Authority [2008] HCA 31
SZVRO v Minister for Immigration [2016] FCCA 1516
Trivedi & Ors v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2014] FCAFC 42
Yolbir v Administrative Appeals Tribunal [1994] FCA 910Number of paragraphs: 87 Date of hearing: 23 October 2020 Place: Parramatta Appearing for the Applicants: Mr Nair Solicitors for the Applicants: M S Nair & Co Counsel for the Respondents: Ms Hooper Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 2992 of 2019 BETWEEN: MOHAMMAD ROKIB HOSSAIN
First Applicant
SHARMIN AKTHER
Second Applicant
OHI MOHAMMAD
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Amended Application filed 7 February 2020 is dismissed.
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
These are the reasons for judgment in respect of an application pursuant to s.476 Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 14 October 2019. In that decision, the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicants a Regional Employer Nomination (Class RN) Regional Employer Nomination (subclass 187) visas.
BACKGROUND
The applicants are citizens of Bangladesh. The first applicant is the husband of the second applicant, who both arrived in Australia in 2015. The third applicant is the child of the first and second applicant who was born in Australia in March 2017.
In July 2016, the first applicant commenced employment with Aus Bangla International Pty Ltd (“Aus Bangla”) as a casual Restaurant Manager at a restaurant in New South Wales called ‘Tandoori & Curry Palace’.
The applicants applied for the Regional Employer visas on 17 January 2018. The first applicant was the primary applicant for the visa in the Direct Entry stream and the second and third applicants were members of the first applicant’s family unit. The first applicant applied for the visa on the basis that he would work in the nominated position of Café or Restaurant Manager, with the nominated company being Aus Bangla. The position was at another Aus Bangla restaurant located in Tasmania called ‘The Swingin Anchor Café’.
THE DELEGATE’S DECISION
On 13 February 2019, the Minister invited the first applicant to comment on information being, in summary, that officers of the Australian Border Force attended Aus Bangla’s nominated business address and found that the premises were permanently closed, with the business premises empty and padlocked. Furthermore, the officers were informed that the business had been closed since May 2018 and that a ‘for sale’ sign had been up for at least a year. A subsequent search showed that the business had been deregistered on 7 October 2018 and that the Australian Business Number (“ABN”) was cancelled on 26 November 2018.
The first applicant was informed that this information was relevant for the purposes of the Migration Regulations 1994 (Cth) (“Regulations”).
By email dated 13 March 2019, the first applicant provided a response stating that he was surprised and unaware that the business’s ABN had been deregistered and that the business had stopped its operations. The first applicant also attached a statutory declaration dated 12 March 2019 of the director of Aus Bangla stating the following:
a.That the company was in the process of getting its ABN reregistered;
b.That the director was currently in Bangladesh; and
c.That the he intended to appoint a new director of Aus Bangla once the ABN was reregistered.
The delegate’s decision not to grant the applicants the visas was based on a finding that the first applicant did not satisfy cl.187.213 contained in Schedule 2 of the Regulations. The delegate reached this finding on the basis that the first applicant did not satisfy the Public Interest Criteria (PIC) 4020 contained in Schedule 4 of the Regulations. It is a requirement of cl.187.213 that the applicant satisfies PIC 4020.
The delegate took into account the explanatory email and attached statutory declaration sent on 13 March 2019 from the applicants’ authorised agent, however gave greater weight to the onsite visit conducted by the officers of the Australian Border Force. The delegate further found that the first applicant intentionally misled the department by declaring that he was going to undertake employment that was not genuinely available and as such amounted to the first applicant giving the Minister, by reason of his visa application, a bogus document or information that was false and misleading. As a result, the delegate also found that the first applicant could not satisfy PIC 4020(1) and therefore did not satisfy cl.187.213.
The delegate refused to grant the second and third applicants visas as the primary applicant was found not to have met the prescribed criteria for a Regional Employment visa and therefore the second and third applicants were not members of the family unit of a person who was the holder of a Regional Employment visa.
The delegate concluded that because the first applicant did not meet PIC 4020(1), the applicants may be subject to PIC 4020(2) which may preclude the applicants from being granted another visa for a period of three years.
THE TRIBUNAL’S DECISION
On 19 April 2019, the applicants applied to the Tribunal seeking review of the delegate’s decision. By letter dated 30 August 2019, the applicants were invited to attend a hearing on 2 October 2019. The Tribunal’s hearing invitation relevantly stated:
Additionally, please provide this information so that a decision can be made as quickly as possible:
It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this.
On 18 September 2019, and in accordance with s.359A of the Act, the Tribunal wrote to the applicants as follows:
A further issue that has arisen on the review is that it appears that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review.
When you lodged your visa application on 17 January 2018, you identified as the sponsoring company, Aus Bangla International Pty Ltd in Stanley, Tasmania (Aus Bangla). Their nomination relating to your visa application was refused on 2 April 2019 and Aus Bangla lodged an application for review with the Tribunal.
On 29 May 2019, the Tribunal (differently constituted) made a decision that it did not have jurisdiction to review the decision to refuse the nomination. This was because information from the Australian Securities and Investments Commission (ASIC) registered showed that Aus Bangla was deregistered on 7 August 2018 and their registration had not been reinstated. Because Aus Bangla had been deregistered, they did not have standing to apply for, or continue with, an application for review.
For the grant of a Subclass 187 visa, you must meet cl. 187.233 which requires, among other things, that you are the subject of an approved nomination or nomination refusal on review. It does not appear that you are the subject of an approved nomination or a refused nomination on review.
In accordance with the invitation to do so, the applicants provided their response in writing on 1 October 2019.
On 2 October 2019, the applicants and their migration agent attended the Tribunal hearing.
On 14 October 2019, the Tribunal made its decision, affirming the decision of the delegate. It did so for reasons which were different to those of the delegate. In affirming the decision of the delegate, the Tribunal found that cl.187.233 of Schedule 2 of the Regulations was not met, as conceded by the applicant before the Tribunal.
Relevantly, the Tribunal found that:
… at the time of the visa application… Aus Bangla was… still registered and lawfully operating. The business was registered on 1 September 2017 and was not deregistered by ASIC until October 2018. In those circumstances, there is no verifiable evidence to contradict the applicant’s claim that in January 2018 he believed the position was genuine and that he intended to commence working in the nominated position for the sponsor when his visa was granted. The Tribunal is satisfied that the applicant did not provide a bogus document or false or misleading information relating to his visa application.
Clause 187.233 provides as follows:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
The Tribunal ultimately found that the position with Aus Bangla to which the visa application related was subject to an application for approval of nomination in the Direct Entry Scheme. The position was required to be the same one identified in the declaration made as part of the visa application. The nomination was also required to identify the applicant in relation to the position. The applicant conceded that he did not have a valid nomination relating to the visa application which was the subject of the review because the company was deregistered. The Tribunal found it was not in dispute that the applicant failed to meet cl.187.223.
At the Tribunal hearing, the member noted that whether or not the applicant met the criteria set out in PIC 4020 was immaterial on the basis that in the absence of a valid nomination cl.187.233 cannot be met and the visas cannot be granted, and therefore whether or not the applicant met PIC 4020 would not change the outcome of the Tribunal’s decision to affirm the decision of the delegate.
The applicants continued to press the PIC 4020 issue, not because they believed it would affect the outcome of the present visa application but rather that it would prevent the bar provided by PIC 4020(2) applying to any future visa applications in the preceding three years.
THE APPLICATION BEFORE THIS COURT
On 18 November 2019, the applicants filed an application seeking judicial review of the Tribunal decision dated 14 October 2019. The applicants now rely on an amended application and an affidavit annexing a copy of a transcript of the Tribunal hearing filed 7 February 2020. The parties filed written submissions prior to the hearing and made oral submissions through their legal representatives at hearing on 23 October 2020.
In the amended application the applicants raise four grounds which may be summarised as follows: in grounds 1 to 3: that the tribunal constructively failed to exercise jurisdiction, made a legally unreasonable decision and denied the applicants procedural fairness because it did not correct an incorrect statement by the delegate and “failed to remove” the effect of PIC 4020; and in ground 4: that the first respondent’s delegate did not validly notify the applicants of the delegate’s decision.
GROUND ONE
Ground 1 is as follows:
The Tribunal failed to perform its core function of reviewing the applicant's review application as required by ss 349(1), 353 and 357A of the Migration Act 1958 (Cth), and consequently acted erroneously in law.
Particulars
a. At (23) the Tribunal states:
"The Tribunal notes that in the delegate's decision it is stated that ' ... the nominator did not lodge the application and had no intention to employ you in the position. This is incorrect as department records indicate that the nominator did lodge and application on 17 January 2018 ...." (Emphasis added).
b. Also, in dealing with the review applicant's submission at (22) that there would be a three (3) year exclusion period if the finding of the delegate, that the applicant had breached PIC 4020, is not removed, the Tribunal failed to remove that impediment to the review applicant. The exclusion period would deprive the review applicant, for three (3) years, from applying for another visa. In failing to act in that manner, the Tribunal failed to comply with the mandatory words in s.357A(3): -"In applying this Division, the Tribunal must act in a way that is fair and just." (Emphasis added).
c. Pages 102 -111 of the Court Book throw light on particulars a. and b. above.
d. The Statutory Declaration of the Nominator, at p.112 of the Court Book responds to the delegates request for information.
e. In view of the explanation provided by the Nominator, referred to at d. above, the delegate ought to have provided the opportunity to the Nominator, for the matters indicated in the Statutory Declaration (p.112 of the Court Book), A denial of providing such an opportunity is a denial of procedural fairness.
f. The Tribunal ought to have rectified such denial by the delegate. The Tribunal failed to do· so.
g. Even though the Tribunal pointed out at particular a. above, the Tribunal failed to remedy the failure of the delegate of the Minister. Such a failure by the Tribunal was a failure to exercise its review rights as required by law. Such a failure is jurisdictional error.
The applicants submitted that the delegate failed to provide such “evidence” to substantiate the finding that the first applicant had provided, or caused to be provided a bogus document or false or misleading information in relation to his visa. In oral submissions the applicants conceded, as they did at the Tribunal hearing, that cl.187.233 was not met by the first applicant. However, noting the finding of the Tribunal, that the applicants did not provide a bogus document or false or misleading information relating to their visa applications, the applicants submitted that the Tribunal erred by failing to take appropriate action to remove the application of PIC 4020(2).
The applicants’ legal representative further submitted that the delegate “has created a situation that cannot be attacked. That [it] remains there causing harm to [the] applicant”. The applicants also submitted that the Tribunal, in accordance with s.349 of the Act, should have proceeded to either:
a.remit the matter back to the delegate with a direction to “find according to the finding of the Tribunal”; or
b.make a decision which varied or substituted rather than affirmed the decision of the delegate.
The applicants argued that this would prevent them from suffering the “detriment” of a three year exclusion period provided by PIC 4020(2), which flowed from the delegate’s decision. The applicants contended that the Tribunal’s decision not to set aside the decision of the delegate, in circumstances where the Tribunal expressly disagreed with the reasoning of the delegate is improper and unfair.
Citing Buchanan J in Trivedi & Ors v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2014] FCAFC 42 (“Trivedi”), the applicants submitted that an element of fraud or deception was necessary in order to attract the application of PIC 4020, as Buchanan J states at [32]
It is apparent from the terms of PIC 4020 that it is addressed (to) the problem of attempts to work a fraud or deception on the assessment of claims for a visa. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or document provided in support of an application are revealed as false, in the purposely untrue sense of that term.
Contrastingly, the first respondent submitted that an affirmation of a decision by the Tribunal leaves the delegate’s original refusal decision on foot and operative (Kim v Minister for Immigration and Citizenship & Anor [2008] FCAFC 73 (“Kim”)). The first respondent argued that this occurs even in circumstances where the affirmation of the delegate’s decision was for reasons which were different to those of the delegate.
In Kim, the lead judgment was delivered by Tamberlin J, with whom Besanko J agreed. At [23] Tamberlin J held:
[i]t is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-50.
(See also, the reasoning of Tamberlin J in Kim at [33]-[34]).
The first respondent submitted that the Tribunal’s decision was an ‘affirmation’ of the delegate’s decision, and not a fresh decision to ‘refuse’ the visa. The fact that the Tribunal gave different reasons to the delegate did not alter the historical fact of the refusal by the delegate because PIC 4020(1) was not satisfied. PIC 4020(2) remains in effect after the Tribunal’s decision. The Tribunal’s factual findings concerning satisfaction of PIC 4020(1) do not change this.
The first respondent submitted that the Tribunal could not remit the matter with a direction that the first applicant satisfied only one component of the specified criterion and where it had not made findings that he met the balance (Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153 (“Dhanoa”) at [70]). The Tribunal, it is submitted, was under no obligation to consider remitting the matter with such a direction (Dhanoa at [72]).
In oral submissions counsel for the first respondent submitted that on its construction, the bar provided for in PIC 4020(2) applies as a question of historical fact of whether an applicant has been refused a visa because of the failure to satisfy PIC 4020(1). The first respondent submitted that it is the decision of the delegate, pursuant to s.65 of the Act, to grant, deny or cancel a visa which is to be distinguished from the Tribunal who has the power to affirm, vary, substitute or remit for reconsideration a decision of the delegate. For the Tribunal to substitute a new decision under s.349(2)(d), it would have had to set aside the delegate’s decision and substitute a decision to grant the applicants visas. For the reasons set out in [19]-[21] above, the Tribunal determined that it could not do so.
The first respondent also submitted that this application is an attack on the delegate’s decision which falls outside of this Court’s jurisdiction in accordance with s.476 of the Act.
CONSIDERATION
PIC 4020 Argument
PIC 4020 relevantly provides as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part-5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the visa;
The applicant and each member of the family unit of the applicant has not been refused a visa because if a failure to satisfy the criteria in subclause (1).
…
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
As such, where a visa applicant fails to satisfy PIC 4020 because an application contains a misleading statement or a bogus document, the consequence in substance, and subject to the Ministerial power in sub-cl (4), is to prevent the visa applicant from applying for most classes of visa for a period of three years. This is what the fist applicant was and is trying to avoid.
The Tribunal noted in its reasons as follows:
[20] The Tribunal has made a finding that the applicant does not meet cl.187.233 and he does not therefore satisfy the primary criteria…
[21] Notwithstanding that the applicant does not meet the requirements of cl.187.233 and cannot therefore satisfy the requirements for the grant of the visa, the Tribunal, at the request of the applicant, has reviewed the decision made by the delegate and considered whether the applicant meets cl.187.213(1) which requires, relevantly, that ‘…the applicant satisfied public interest criteria …4020…”
[22]… [the applicant] submitted the delegate’s decision is wrong and that he wants a favourable decision made so he will not be subject to a three year exclusion period, so he can apply for another visa.
…
[35] … The Tribunal is satisfied that the applicant did not provide a bogus document or false or misleading information relating to his visa application.
…
[40] The Tribunal affirms the decision not to grant the applicants… visas.
The Tribunal’s powers in respect reviewing the delegate’s decision were limited by s.349 of the Act.
Section 349 of the Act is as follows:
(1)The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2)The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
(3)If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
The powers conferred upon the Tribunal, were conferred by s.349(1) “for the purposes of the review of a Part 5-reviewable decision”. They were not conferred for any other purposes. The power included, the power to “substitute a new decision”. That power is not, however, a power to make a decision at large about any matter falling within the ambit of any of the provisions of the Act. It is rather a power qualified by, and limited to, the “reviewable decision” itself (Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31 (“Sharma”) at [36] citing Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551 at 311; Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017 at [25]).
Relevantly in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [32], the High Court held:
The Tribunal, in reviewing the delegate’s decision under s 348 of the Migration Act, was obliged by s 349(1) to form its own conclusion on the material before it as to the proper performance of the duty imposed on the Minister by s 65. The Tribunal’s own conclusion as to the proper performance of the duty imposed on the Minister by s 65 was then to be reflected in a decision under s 349(2), relevantly, either to affirm the decision of the delegate or to set aside the decision of the delegate and to substitute its own decision, which would then be taken by force of s 349(3) to be a decision of the Minister. The operation of s 65 of the Migration Act was explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection: “The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) –depending on the existence of one or other of two mutually exclusive states of affairs (or ‘jurisdictional facts’) – the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters.”
(Footnotes omitted)
In the present case, the “reviewable decision” was the decision not to grant the visa. The power which the Tribunal possessed in reviewing that decision was therefore, prima facie, quite limited. It was restricted to a consideration of whether or not that decision was the “correct or preferable” decision, and nothing more (Sharma at [37]). The particular decision of the delegate was not susceptible to be varied or being altered in part (Kemeiv Minister for Immigration & Anor [2019] FCCA 1735 at [35] citing Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal & Anor [2009] FCA 1514 at [28]).
An application for review to the Tribunal is an application for review on the merits. Judgment as to the validity of actions by the Minister is for the Courts, not for an administrative body such as the Tribunal. (Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”) at [42]). The Tribunal is not vested with power to determine if the delegate has committed an error (Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [97], [117] and [142]).
Once the Tribunal determined that the first applicant did not meet the primary criteria, it should have affirmed the decision of the delegate not to grant the visa and ended the matter there. By engaging at the request of the applicants, in the task of reviewing the findings of the delegate, it arguably stepped outside of the bounds of its powers, and was therefore acting outside of jurisdiction. The Tribunal’s actions in reviewing the findings of the delegate after it had come to the conclusion that it must affirm the decision, were an unnecessary distraction for it, but they did not taint the decision to affirm the delegate’s decision with jurisdictional error (if there was such error).
The Tribunal did not have the power to remit the matter back to the delegate with a direction that it be determined in any particular manner. The Tribunal could not “vary” the decision by making a decision which was to the same effect, nor could it “substitute” its own decision not to grant the visa which was the same as the primary decision. To do so would have been non-sensical. The reasons for the Tribunal’s decision were different to the reasons for the delegate’s decision, but the decision was still the same decision: not to grant the visa.
It appears that the applicants’ attempt to overcome the difficulties with the three year bar arising out of the delegate’s findings, sent not only the Tribunal, but also the applicants, on a wild-goose chase. Even if the Tribunal’s decision was set aside by this Court on the basis that jurisdictional error had been established, the delegate’s decision will remain as an instance of the applicant having applied for and being refused a visa on the basis of not meeting PIC 4020 (Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (“Prodduturi”) at [30]; Singh v Minister for Immigration [2015] FCCA 509 at [76]).
The delegate’s decision is a decision with which this Court simply cannot interfere (SZVRO v Minister for Immigration [2016] FCCA 1516 at [15]; Prodduturi at [32]). This Court has no jurisdiction in relation to the delegate’s decision (s.476 of the Act; MZXOT v Minister for Immigration & Citizenship [2008] HCA 28; Prodduturi at [32]). The only Court with jurisdiction to entertain an argument to set aside the Minister’s decision is the High Court under s.75(v) of the Constitution (Prodduturi at [35]).
Procedural Fairness Argument
By virtue of s.353 of the Act in reviewing a Part 5-reviewable decision, 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. Part 5 Div 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, and ss.375, 375A and 376 and Division 8A, in so far as they relate to Pt 5 Div 5, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with (s.357A).
There is a distinction between the existence of a power and the manner of its exercise (See Ahmed at [41]-[43]). The Tribunal has the power to review the delegate’s decision, the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them, the manner in which it reviews the decision is as set out in the Act (Ahmed at [41]).
The requirement for the Tribunal to act in a way that is “fair and just” as required by s357A(3) was explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [58] per Hayne, Kiefel and Bell JJ to mean:
In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
The suggestion by the applicant, that the Tribunal failed to act in a way which was “fair and just” because it failed to send the matter back to the delegate to be decided in accordance with its own findings concerning PIC 4020 is misconceived. As noted earlier, the Tribunal could not have done so in the proper exercise of its powers to review the delegate’s decision. There was nothing unfair or unjust in the way that the review process before the Tribunal was conducted. The applicant’s reliance on Trivedi was also misplaced for similar reasons.
As noted earlier, the Full Court’s decision in Kim is authority that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal. Kim concerned a different factual scenario to the present and did not involve any discussion about the reasons for a decision. The same applies to Prodduturi.
In its searches, this Court was not able to find any authority which dealt with a similar fact scenario such as this one, namely where the decision of the delegate found that PIC 4020 was not satisfied, but the decision of the Tribunal did, notwithstanding that the delegate’s decision not to grant the visa was affirmed.
Given the Court’s determination, the argument is purely academic. The Tribunal’s decision to affirm the delegate’s decision was, as notes earlier, for a failure to meet cl.187.233. As such, whilst the delegate’s decision stands, the applicants have not been refused a visa because of a failure to meet PIC 4020(1) but for a different reason. Arguably, the PIC 4020(2) bar does not apply. It is not a matter that this Court needs to determine on the present application. In any event, the Ministerial discretion pursuant to PIC 4020 (4) remains.
The applicant has not established Ground 1.
GROUNDS 2 AND 3
Ground 2 is as follows:
The Tribunal's failure as stated at ground 1 a. and b. above, are legally unreasonable decisions.
Particulars
The applicant repeats the particulars for Ground 1 and the particulars for Grounds 2, 3 and 4.
Ground 3 is as follows:
The Tribunal failed to provide procedural fairness to the review applicant.
Particulars
The applicant repeats the particulars for Ground 1 of the application.
Grounds 2 and 3 are in essence the same complaint as alleged in Ground 1, but cast as legal unreasonableness and a denial of procedural fairness.
The applicants did not specifically address in their submissions any unreasonableness argument.
In written submissions the applicants submits that the delegate denied the applicants procedural fairness by failing to avail the applicants the opportunity to respond to the evidence before the minister as required by s.360 of the Act. The applicants submit that this failure remained in force even after the de novo review by the Tribunal and therefore that the Tribunal's decision amounts to jurisdictional error.
Section 360 of the Act relevantly states
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
This legislation refers to powers of the Tribunal not the delegate.
Applicants must identify particular adverse material which deprived them of the opportunity to respond in order to sustain a procedural unfairness claim (ALR17 v Minister for Home Affairs [2019] FCAFC 182 per Nicholas, Griffiths and Gleeson JJ).
On 13 February 2019, the first respondent invited the applicants to comment on information (summarised at [6] above) which the delegate identified was an issue with the visa applications. On 13 March 2019 the applicants, by way of email, sent a reply to the Department addressing their concerns. The applicants submit that despite the clear responses from the migration agent and the nominator, the delegate “simply turned a blind eye” on the information the applicants provided.
Additionally, as noted earlier in these reasons, the Tribunal invited the applicants to attend a hearing on 2 October 2019 by letter dated 30 August 2019. Included in the invitation was a request for information that the Tribunal had identified was an issue on review. On 18 September 2019, the Tribunal wrote again to the applicants outlining further issues on review. The applicants provided written submissions on 1 October 2019. The applicants and their migration agent attended the Tribunal hearing on 2 October 2019. During the hearing the Tribunal asked the delegate to give evidence and present arguments relating to the first applicants failure to meet cl.187.233 of the Regulations. The applicants conceded that they could not satisfy that criteria.
Despite noting that consideration of the PIC 4020 issue would not impact on the Tribunal’s decision to affirm the decision on review, the Tribunal afforded the applicants an opportunity to address the finding of the Minister that the first applicant gave the Minister, with his visa application, a bogus document or information that is false and misleading. The Tribunal addresses this issue at [35] of its reasons.
Request for an Adjournment
In oral submissions the applicants also submitted that the Tribunal failed to provide procedural fairness by rejecting the applicants’ request for an adjournment. This was not pleaded in the Amended Application though the applicants contend that it is an extension of ground three.
The applicants submit that the migration agent asked the Tribunal for additional time to allow for the sponsor to reregister Aus Bangla as a business and employ the first applicant, and that additional time was not given. Citing Li, the applicants’ solicitor submitted that denial of an opportunity to grant the applicants an adjournment to “produce a reassessment” was a denial of procedural fairness.
The Tribunal is given power to adjourn proceedings under s.363(1)(b) of the Act. It is a discretionary power.
The applicants directed the Court to the following evidence: the director of Aus Bangla’s statutory declaration of 12 March 2019 which states “the nomination is still in progress” and “we are in the process of getting it re-registered”; the written submissions of the applicants’ migration agent sent to the Tribunal dated 1 October 2019 which states “the application of the Nominator has not been decided … he ought to have been granted the opportunity to do what he had said he would do, in his statutory declaration”; and a quote from an email sent by the nominator to the applicants contained in the 1 October 2019 submissions stating “please send the request for extension of time so we can provide further evidence to support the nomination application and the statutory declaration made by me to advise the department as follow”.
Additionally, at the commencement of the Tribunal hearing the following exchange occurred between the Tribunal Member, the first applicant in the presence of his migration agent.
Member: So you are – applied for … visa in January last year
Applicant: yes.
Member: In 2018. And the nomination was made… as well, by …. And they were trading as the Swingin’ Anchor Cafe and Restaurant. Is that right?
Applicant: Yes. That’s right.
Member: … all right. And it seems at some point they were deregistered and – have they been re-registered?
Applicant: No. Actually, they – they – we were … time, but … actually, we didn’t get time, so – yes.
Member: What do you mean you didn’t get time?
Applicant: Like, when immigration …. Regarding the de-registrations and business shutdown and the guy – the director, who … actually Bangladesh, so he was have some – like, if we are given some time, because their intention is to re-register and re-open the business.
Member: Okay. Have they done that?
Applicant: We didn’t get much time … no. I mean, later when it was rejected –
Member: … What – what do you mean? Have they done it now? Because there’s been quite a bit of time since then, hasn’t there?
Applicant: Yes. It’s not done now.
Member: Well, when are they going to do it?
Applicant: Like, when they rejected, not sure. Like, you know?
The applicants submit that these request were “in substance” an application for an adjournment.
The first respondent, opposing the grant of leave to further amend their amended application to include this contention as a ground of review, contends that there is no evidence which articulates an application for an adjournment. Furthermore, the first respondent directed the Court to statements made by the first applicant explicitly articulating an intention of the applicant to find a new nominator, rather than to re-register Aus Bangla as a company.
CONSIDERATION
As noted earlier in these reasons, this Court does not have the power to review the delegate’s decision.
The applicants have not satisfied the Court that the Tribunal acted with legal unreasonableness, for similar reasons as those expressed in respect of Ground 1.
The applicants have not satisfied the Court that they were denied procedural fairness by the Tribunal, in any way whatsoever (including for similar reasons as those expressed in respect of Ground 1). The Tribunal identified relevant issues for the applicants to consider, it invited them to a hearing where the applicants participated, and furthermore, it permitted the applicants to argue an essentially moot point about PIC 4020 after the first applicant conceded that he did not meet the primary criteria, which meant that the decision not to grant him a visa had to be affirmed by the Tribunal.
Furthermore, French CJ in Li (at [21]) noted that a decision to adjourn should be informed by whether the passage of time will allow the visa criterion to be met. The present facts of this case can be distinguished from those in Li where the grant of an adjournment would have provided an opportunity for the applicants to satisfy the relevant criterion. In this case the first applicant and his nominator has had many months (since being on notice from the delegate) to reregister Aus Bangla. They had not. It was conceded by the applicants at the Tribunal that the director of Aus Bangla was in Bangladesh and difficult to contact. In light of those circumstances it is unlikely that an adjournment would have availed an opportunity for the applicant to satisfy cl.187.233 of the Regulations and that procedural fairness has been denied. Furthermore, the reregistering of the business could not have rectified the issue identified by the Tribunal. At the time the visa application was lodged there was not a valid nomination.
Grounds 2 and 3 are not made out.
GROUND FOUR
Ground 4 is as follows:
The delegate of the Minister failed to comply with the requirements of s 66(2)(d)(ii) of the Migration Act in the manner it conveyed to the applicant the “Review rights” of the applicant, to the Administrative Appeals Tribunal (“the Tribunal”). The relevant manner of such conveyance appears at p. 115 of the Court Book. Under the heading “Review rights”, it states:
“Review rights
The decision can be reviewed.
We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AA T within 21 days after the on which you are taken to have received this letter.
…
This review period is prescribed in law and an application for merits review may not be accepted after that date.”
The applicants’ particulars for ground four resemble submissions rather than particulars. In essence though, the applicants say that because the delegate’s decision was not clear, and even though the applicants were within time in applying for a review of the delegate’s decision to the Tribunal, that there was an error of the kind identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”).
CONSIDERATION
As noted earlier, the Court has no jurisdiction to review the primary decision.
Furthermore, any error in the delegate’s notification does not invalidate the substantive decision (s.66(4)).
In DFQ17, the Tribunal found it had no jurisdiction to review an application to it lodged out of time in reliance on the validity of an invalid delegate’s notification. Not only are the facts clearly distinguishable, but in the present circumstances the application was within time. As such, the applicants’ reliance on DFQ17 is misconceived.
Ground 4 has not been made out.
SHOULD THE COURT MAKE A DECLARATION?
The Court has considered, whether in all of the circumstances it would be appropriate to grant declaratory relief on reputational grounds.
Without a hearing as to the substantive matters, this Court is not in a position to make any findings of fact about whether or not the first applicant supplied a bogus document or information that is false or misleading in a material particular. The delegate found that he had, while the Tribunal found that he had not. The Tribunal’s decision is reflective of this finding. A declaration as to the Tribunal’s findings is unnecessary as the decision of the Tribunal is not being disturbed.
There are no grounds for making a declaration of the sort made in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 or similar.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 17 February 2021
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