Jassal v Minister for Immigration
[2020] FCCA 2415
•24 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JASSAL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2415 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN ) visa – nomination for position withdrawn – failure to attend Tribunal hearing – application reinstated – notice period of new hearing – grounds of review complain of procedural fairness issues – Applicant seeking merits review – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958, ss.359A, 360, 360A Migration Regulations 1994, clause 187.233 of Schedule 2 |
| Cases cited: Minister for Immigration and Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 |
| Applicant: | AKASHDEEP JASSAL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 918 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 24 August 2020 |
| Date of Last Submission: | 24 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 24 August 2020 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitor Advocate for the Respondents: | Mr Orchard |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
The Application filed on 9 April 2018 be dismissed and this order become operative from the date written reasons are published.
The Applicant pay the First Respondent’s costs of the proceeding, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 918 of 2018
| AKASHDEEP JASSAL |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal on 23 March 2018 (‘Tribunal’). In that decision the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant, Ms Jassal, a Regional Employer Nomination (Permanent) (Class RN ) visa (‘visa’).
Background
Ms Jassal is an Indian national. She applied for the visa on 30 June 2017. The visa was applied for on the basis of her employment as a café/restaurant manager with HRV Pty Ltd (‘sponsor’).
On 15 September 2017, the Department wrote to Ms Jassal inviting her to comment on adverse information. The adverse information received was that the sponsor had withdrawn the nomination for her visa. It does not appear that Ms Jassal took up the invitation to respond to the Department at that time.
On 18 October 2017, a delegate of the Minister refused Ms Jassal the visa. The basis of the refusal was that she did not satisfy clause 187.233 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’).
On 25 October 2017, Ms Jassal applied to the Tribunal for a review of the decision. The Tribunal ultimately dismissed the application for review of the decision.
Ms Jassal’s application in this court for review was filed on 9 April 2018, accompanied by an affidavit in support. Subsequently, orders were made permitting Ms Jassal to, among other things, file an amended application, any affidavits and written submissions. Ms Jassal has not availed herself of that opportunity. The Minister has, however, filed written submissions and provided a bundle of authorities.
The Tribunal’s decision
Given the grounds of review raised by Ms Jassal in her application, it is necessary to say something about what unfolded before the Tribunal and the Tribunal’s ultimate decision.
Following the filing of her application for review in the Tribunal, on 20 February 2018, Ms Jassal was invited to attend the hearing at the Tribunal scheduled for 8 March 2018. On the hearing day, 8 March 2018, Ms Jassal failed to appear at the Tribunal. The Tribunal dismissed her review application and notified Ms Jassal of this on 9 March 2018.
On 14 March 2018, Ms Jassal wrote to the Tribunal asking for her application to be reinstated. She attached a medical certificate which said that she was ‘unfit to talk and travel to the court place’ from 7 to 8 March 2018.
On 21 March 2018, the Tribunal wrote to Ms Jassal stating that the member considered it appropriate for the review application to be reinstated. A copy of the Tribunal’s reasons relating to the reinstatement application were attached.
On the same day, being 21 March 2018, the Tribunal invited Ms Jassal to attend a hearing before it on 23 March 2018. Ms Jassal attended that hearing on 23 March 2018. On the day of the hearing, the Tribunal affirmed the decision under review which was not to grant Ms Jassal the visa. Written reasons for that decision were subsequently provided to Ms Jassal on 4 April 2018.
The principal issue before the Tribunal was whether Ms Jassal was able to satisfy the requirements of clause 187.233 of Schedule 2 of the Regulations which was as follows:
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; 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 was the nominator in the application for approval.
(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 not more than 6 months after the Minister approved the nomination.
The Tribunal found that Ms Jassal did not comply with the requirements of the clause set out above. The Tribunal found that Ms Jassal was not the subject of an approved nomination. This finding was based on the fact that the position to which Ms Jassal nominated had been withdrawn and was no longer available to her. Further, the Tribunal noted that Ms Jassal had not produced any evidence to show that she was the subject of an approved nomination. The requirements of clause 187.233 were therefore not satisfied. The Tribunal affirmed the decision under review.
In reaching its conclusion, the Tribunal heard submissions from Ms Jassal regarding workplace issues which she believed led to the withdrawal of the nomination. Notwithstanding those issues, the Tribunal formed the view that the relevant requirements of clause 187.233 remained unsatisfied.
Application for review
I turn now to deal with the application for review in this Court. The application was filed on 9 April 2018 and contained six grounds of review. These grounds of review are set out in the application which are as follows:
‘1. The Tribunal did not take into account the history of my studies and work in Australia. The Tribunal also did not take into account the affect, the refusal of my visa application would have on my life and career. This is a denial of natural justice.’
‘2. The Tribunal did not give any weight to my submissions in relation to the matters leading to the withdrawal of nomination. The withdrawal of nomination was beyond my control. The management/ownership of my employer's (nominator's) company changed without my knowledge and it turned out that the new owners withdrew the nomination without my knowledge or without any notice to me. The Tribunal did not give me time to arrange alternative nomination. This is a denial of natural justice and against the procedural fairness.’
‘3. The Tribunal did not take into account the delay by the Department of Immigration in determining my application, while my nomination was still valid and on foot. The delay adversely affected the outcome of my visa application. The Department cannot use its own delay against me. This is not affording me procedural fairness.’
‘4. The Tribunal did not consider my Regional Certifying Body (RCB) assessment dated 21 June 2017.’
‘5. Department of Immigration was wrong in concluding that my correlating position was not nominated by an employer. I was nominated by an employer. The Tribunal did not take this factor into account.’
‘6. The Tribunal member seemed to have already made up her mind even before the hearing and despite my attempts to explain my case, refused my application.’
Before me today, Ms Jassal accepted that the position, the subject of her initial nomination, had been withdrawn. She explained the circumstances as she understood them of the putative employer selling the business and her difficulties in contacting them. She sought, in effect, more time to obtain a nomination.
At the time the grounds of review were filed, Ms Jassal was unrepresented. She remained unrepresented before me in the hearing today. There seems little doubt that the refusal of the visa will have grave consequences for Ms Jassal. The relevant question before this Court is whether there is anything in the approach of the Tribunal that discloses a jurisdictional error.
Turning to the grounds of review, grounds 1, 2 and 3, complain about a denial of natural justice or procedural fairness. At the outset, the following needs to be noted in relation to any complaint about a lack of procedural fairness or natural justice. First, to the extent that it is relevant, Ms Jassal had been on notice since September 2017 that the nomination had been withdrawn. Notwithstanding that, at the time of the Tribunal hearing, she had not produced any evidence which suggested that the state of affairs had been addressed. That remained the case before me today.
Second, the Tribunal provided an opportunity for Ms Jassal to be heard, notwithstanding her first failure to attend before the Tribunal resulted in her application being dismissed.
When considering any failure to afford procedural fairness or natural justice, it is appropriate to consider the requirements on the Tribunal at the time it heard the matter. It appears, from my review of the material in the Court Book, that the Tribunal, subject to potentially one matter I discuss further below, complied with its obligations under sections 360 and 360A of the Migration Act1958 (‘Act’). Ms Jassal was invited to attend the hearing. She knew, from the history that I have articulated above, what the principal issue would be: that is, whether she could satisfy the requirements of clause 187.233 of the Regulations.
A relevant question in relation to the requirements in section 360A of the Act is whether the applicant, Ms Jassal, was given appropriate notice of the rescheduled hearing. This was not a matter raised by either party and one that I raised with the Minister during the hearing. As the chronology above makes clear, the decision to reinstate the application before the Tribunal was made on 21 March 2018. On the same day, the Applicant was advised that the hearing would be rescheduled to occur two days later on 23 March 2018.
By subsection (4) of section 360A, the period of notice must be either the prescribed period or a reasonable period. This is a case in which the period of notice had already been given, and the authorities make clear that the prescribed period need only be given once: Minister for Immigration and Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572.
The question that therefore arises in this case is whether the notice period was reasonable. In Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358, Flick J noted that a period of notice must not be unreasonably short. His Honour was there considering a period of around ten days’ notice. His Honour indicated that what is reasonable involves an objective determination by reference to a list of non-exhaustive factors, including the period of notice given in respect of any initial hearing date, the complexity of legal and factual issues, any opportunity previously extended to an applicant to assemble factual materials, the need to obtain further facts, whether there has been a request for an adjournment and any assessment by the Tribunal member as to the adequacy of the notice.
There is no doubt that the period of two days given to the Applicant by the Tribunal in this matter was short notice. I have some reservations about finding such a period to be reasonable. However, when the circumstances of this case are considered, I am satisfied that the period of notice was reasonable. I am of this view for the following reasons:
a)The factual issue was of reasonably short compass: that is whether the position was available or had been withdrawn and therefore, whether the Applicant could satisfy the relevant regulation.
b)The Applicant had been on notice about this issue since September 2017, albeit from the Department.
c)She had been invited first to attend a Tribunal hearing, with the invitation being given on 20 February 2018. She therefore had to be ready by 8 March 2018. Her inability to attend on that day means that she obtained a further period of approximately two weeks to prepare for the hearing.
d)Further, she did not before me, nor in the grounds of review, complain about the shortness of the notice given by the Tribunal on 21 March 2018.
e)There is certainly no evidence that she sought to have the hearing rescheduled because of insufficient time.
If I am wrong about the conclusion above, however, and the notice given was not reasonable, I nevertheless find that it would be futile to remit the matter to the Tribunal. For reasons of which I have traversed so far and which I explain further below, the difficulty that the Applicant confronts in this case is fatal. The regulation requires a position to be available and not to be withdrawn in respect of an application for the visa. The Applicant admitted then, and she admitted before me today, that no position is available in respect of her visa application. Thus, remitting the matter would not produce a different outcome even if the period of notice was too short. Indeed, the Tribunal providing a longer period of notice would not have enabled the Applicant to cure the defeat identified in the application before the Tribunal.
I have next considered whether there has been compliance with section 359A of the Act. I am satisfied that there has been such compliance. The information prejudicial to the Applicant’s claim was highlighted and contained within the decision of the delegate. This was information that the Applicant gave for the purposes of the review.
By grounds 1, 2 and 4, the Applicant complains that the Tribunal failed to take account of her evidence or submissions made by her. That complaint misunderstands the nature of the inquiry conducted by the Tribunal. That inquiry was focused on whether the position was available or had been withdrawn. The effects of the Applicant’s work history or studies, or any other assessments she may have undertaken, are not germane to this inquiry.
Further the Applicant complains that no weight was given to submissions she made in relation to the matter leading to the withdrawal of the nomination. I pause to observe that the Tribunal’s reasons record submissions made by the Applicant in that respect. It was a matter for the Tribunal as to the weight or relevance, given the task with which it was confronted.
Further, the Applicant did not provide evidence that she was able to satisfy the requirements of clause 187.233 of the Regulations. I am therefore not satisfied that any error is revealed in relation to the complaints.
In ground 2, Ms Jassal also complains that she was not given sufficient time to arrange a new or alternative nomination. The question of whether a new nomination can ultimately satisfy the criteria set out in clause 187.233 was addressed in the case of Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at paragraphs [88] to [89]. I rely upon those reasons. As was made plain in that case, the position referred to in the Regulations is a position that exists at a particular point in time, and the visa application is to be assessed against the specific nomination. As was observed there, even a new nomination in respect of the same position made by the same employer could not be relied upon to meet the criteria. Further, I observe that while Ms Jassal complains that she was not given an opportunity to arrange an alternative nomination, she has not put on any evidence about this.
By ground 3, Ms Jassal complains about the delay by the Department in processing the visa application. In this respect I refer to the chronology above. The visa application was made on 30 June 2017. The delegate’s decision was made on 18 October 2017. That is not an inordinate delay such that it can be said to prejudice Ms Jassal. No legal error is revealed by this ground.
By ground 5, Ms Jassal alleges that the Department was wrong in concluding that she did not have a position nominated by her employer and she complains that the Tribunal failed to take this into account. This ground raises two issues. First, to the extent that it can be said that the ground seeks to complain about the conduct of Department, that is a matter that is outside the jurisdiction presently being exercised by this Court. Second, to the extent that it might be said that there is evidence of an appropriate nominated employer, none has been provided by Ms Jassal to the Tribunal. As previously stated, Ms Jassal concedes there is not another employer.
By ground 6, Ms Jassal appears to assert bias or pre-judgment by the Tribunal member. Ms Jassal did not develop this argument before me today beyond what is contained in the grounds of review, nor did she place before this Court any evidence such as a transcript of the Tribunal hearing, to enable a review of the conduct of the Tribunal to be undertaken. There is nothing in the decision of the Tribunal that indicates that the member was anything other than fair minded.
It is appropriate to record, to the extent that I have not articulated this earlier, that a number of the grounds of review take issue with the Tribunal failing to take account of particular matters or failing to give weight to particular matters. Such complaints appear to be inviting the Court to undertake a merits review. It is understandable that an unrepresented applicant who comes before this Court would seek to re-agitate matters and press for a different outcome. It is difficult not to have some sympathy for Ms Jassal in this respect, however, it is of course impermissible for this Court to embark upon any review of the merits of the Tribunal’s decision. See for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
Conclusion
I am satisfied, having reviewed the materials and for the reasons articulated above, that there has not been any jurisdictional error committed by the Tribunal. I would therefore dismiss the application for review. Costs ordinarily follow the event. In the circumstances it is appropriate to make a costs order in favour of the First Respondent.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 28 August 2020
0
3
3