Johal v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1158
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Johal v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1158
File number(s): ADG 390 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 8 November 2024 Catchwords: MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – failure to consider relevant information – whether appropriate to conduct hearing by telephone – no jurisdictional error established – application dismissed – application for Ministerial intervention encouraged Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) sch 2 cll 187.233, 187.233(3), 187.311
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392
Pabbi v Minister for Home Affairs [2019] FCCA 1750
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294, [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 17 October 2024 Date of hearing: 17 October 2024 Place: Adelaide Applicants: Self-represented Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 390 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVINDERJEET KAUR JOHAL
First Applicant
CHARANPREET SINGH JOHAL
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
BACKGROUND
The first and second applicants (Ms and Mr Johal) are citizens of India (CB 1-2, 5).
On 20 September 2017, Ms and Mr Johal applied for Employer Nomination (Subclass 187) visas (the visas) (CB 1-14). In their accompanying application, Integrated Accountants Pty Ltd (the sponsor), listed Ms Johal as their nominee (CB 24). She was nominated for the position of Accountant (General) (CB 8).
On 15 April 2019, a delegate of the first respondent (the Minister) wrote to Ms Johal advising that the nomination application submitted by the sponsor had been refused. The Minister invited them to provide comment or withdraw the application, noting that if they did not withdraw or respond within 28 days, the application would be refused (CB 24-27).
On 14 May 2019, Ms Johal provided a response, stating that the sponsor had lodged a new nomination application (CB 28-29).
On 13 June 2019, the delegate wrote to Ms Johal advising that a second nomination for the same position cannot be linked to an undecided visa application that was lodged in association with the first nomination (CB 30). On that same day, the delegate refused to grant Ms and Mr Johal the visas. The delegate was not satisfied that Ms Johal met cl 187.233 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not the subject of an approved nomination (CB 37-40).
On 1 July 2019, Ms and Mr Johal applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision. The review application nominated a migration agent as their authorised recipient (CB 41-42).
On 1 October 2020, Ms and Mr Johal nominated a new migration agent, Mr Edwards, as their authorised recipient (CB 49-50).
On 7 October 2020, Ms and Mr Johal were invited to attend a hearing scheduled for 16 November 2020 (CB 51-55).
On 6 November 2020, Mr Edwards wrote to the Tribunal requesting a postponement of the hearing, as new information had come to light in the past few days and the sponsor was seeking advice in relation to the linked nomination (CB 62-63).
On 10 November 2020, the Tribunal wrote to Mr Edwards advising that the Presiding Member had decided not to postpone the hearing (CB 64-69).
On 16 November 2020, the Tribunal conducted the hearing by telephone (CB 70). At the conclusion of the hearing, Mr Edwards was given the opportunity to provide further information in writing by 23 November 2020 (CB 72). On 24 November 2020, Mr Edwards provided the Tribunal with a letter of support from the director of Integrated Accountants Pty Ltd (Mr Bisam), Ms Johal’s employer, for the purpose of supplementing his testimony at the Tribunal hearing (CB 73-77).
On 18 December 2020, the Tribunal affirmed the delegate’s decision not to grant Ms and Mr Johal the visas (CB 87-93). On 21 December 2020, the Tribunal notified Ms and Mr Johal via Mr Edwards of that decision (CB 83-86).
On 23 December 2020, Ms and Mr Johal lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, Ms and Mr Johal must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 7 pages long and spans 33 paragraphs, including an attachment setting out cl 187.233 of Schedule 2 to the Regulations (CB 87-93).
The Tribunal began by identifying the visa decision under review, noting that Ms and Mr Johal applied for the visas on 20 September 2017. The Tribunal observed that, at the time of application, the visa contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme) (at [2]).
The Tribunal explained that a delegate of the Minister had refused to grant the visas as Ms Johal did not meet cl 187.233(3) of Schedule 2 to the Regulations. That criterion relevantly provides that the Minister has approved the nomination lodged by the sponsor. The related nomination application lodged by Integrated Accountants was refused by a delegate and, as such, there was no approved nomination (at [5]).
The Tribunal confirmed that Ms and Mr Johal, along with Mr Edwards, attended the hearing. The Tribunal also received oral evidence from the director of Integrated Accountants, Mr Bisam. The hearing was conducted via Microsoft Teams audio, and the Tribunal was satisfied that Ms Johal was given a fair opportunity to give evidence and present arguments (at [9]).
The Tribunal outlined that the issue in the present case was whether there was an approved nomination (at [11]). Ms Johal confirmed that she had read the delegate’s decision record and understood that the delegate made the decision to refuse to grant the visas as the sponsor did not provide the necessary financial documents to the Department for Home Affairs (the Department) (at [12]).
The Tribunal told Ms and Mr Johal that there was a ‘Client of Interest note’ in the Department’s file records, made on 13 November 2013, regarding possible concerns about Ms Johal’s character. Due to the age of the note, and there being no indication that the matters to which the note refers were investigated, the Tribunal placed no weight on the note in its review. Ms Johal told the Tribunal that she had no idea of what the Client of Interest note referred to and that this was shocking to her (at [13]).
The Tribunal outlined Ms Johal’s evidence that confirmed she had worked for Integrated Accountants for three years. When the delegate made the decision to refuse to grant the visas, she contacted her previous migration agent who advised they were applying to the Tribunal and would explain her situation. She also spoke to her employer who told her to keep working and that they would support her application. She was unaware until she received a hearing invitation from the Tribunal that her employer had not applied for review by the Tribunal of the delegate’s decision to reject the related nomination application (at [14]).
The Tribunal also outlined Ms Johal’s evidence that her employer refused to answer her questions and would not explain to her why they had not applied for review of the related nomination refusal decision. She gave evidence to the Tribunal that she finds it hard to believe she is in her current situation after all of the hard work she has done for her employer and after her employer told her they would support her. She advised she is suffering from stress and depression from what has happened (at [15]).
The Tribunal contacted Mr Bisam by telephone, who gave evidence of Ms Johal’s employment with Integrated Accountants. He confirmed that she initially worked in the Melbourne office but was willing to relocate to the Adelaide office due to staff shortages. After negotiation, the sponsor agreed to her request to be sponsored for permanent residency, but the application they made to sponsor her was rejected. They then made an application identifying her as nominee of a position within the company, but the nomination application was rejected. Mr Bisam noted he does not have a great understanding of migration law but was willing to provide further information after the hearing. The Tribunal provided him with seven days after the hearing to provide that information (at [18]).
On 24 November 2020, the Tribunal received an email from Mr Edwards attaching a letter from Mr Bisam. The letter provided more detailed information about the background of Ms Johal’s employment and the situation regarding the refusal of the related nomination application. The Tribunal noted that the oral and documentary evidence provided confirmed that the sponsor lodged an application on 27 June 2017, identifying Ms Johal as the nominee, with that application being rejected by the delegate on 11 August 2017. Then, on 19 September 2017, the sponsor lodged a further nomination application which was rejected on 15 April 2019 (at [19]).
The Tribunal summarised the evidence given in Mr Bisam’s letter, which stated the sponsor attempted to lodge a further application on 14 May 2019. However, on 13 June 2019, the delegate advised that a second nomination for the same position cannot be linked to an undecided visa application lodged in association with the first nomination (at [20]). The letter also confirmed that the sponsor did not apply for review by the Tribunal of the 15 April 2019 refusal, as the time limit for lodging a review had elapsed by the time the Department advised the nomination application lodged in May 2019 would not be considered (at [21]).
The Tribunal noted Mr Bisam’s remarks in his letter that he is “not a technical person” and that he is reliant on other professional immigration agents and lawyers to make decisions. The employer also noted that his lack of knowledge and competency in immigration law is possibly the reason for Ms Johal being in her current situation (at [22]).
The Tribunal then summarised Mr Edwards’ remarks that Ms Johal’s situation and circumstances resulting in the refusal of the grant of the visas raise issues with the process for applying for review of decisions rejecting nomination applications related to visa applications. He noted that it was extremely surprising that the sponsor chose not to apply for review, nor to communicate this to Ms Johal (at [23]).
The Tribunal outlined that it is a requirement for the grant of a Subclass 187 visa, under cl 187.233(3) of Schedule 2 to the Regulations, that there is an approved nomination. The Tribunal acknowledged that, whilst this is a most unfortunate position for Ms Johal not of her own making, the Tribunal has no discretion in relation to the nomination requirement. The employer asked the Tribunal for advice in relation to the possibility of applying for a nomination now, to which the Tribunal explained it is not its role to provide advice to parties. It observed that parties are open to obtain advice from other sources, should they wish to do so (at [25]).
The Tribunal then set out the requirements in respect of cl 187.233. These requirements outline that the position to which the application relates must be the subject of the nomination application, the position must be the subject of the declaration made as part of the current visa application, and the associated nomination must identify the applicant (at [26]). The Tribunal outlined that this criterion also requires that (at [27]):
•[T]he person who will employ the applicant is the person who made the nomination;
•[T]he nomination has been approved and has not been subsequently withdrawn;
•[T]here is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information;
•[T]he position is still available to the applicant; and
•[T]he visa application was made no more than six months after the nomination of the position was approved.
The Tribunal then summarised that Ms Johal applied for a Subclass 187 visa on the basis of the nomination lodged by the sponsor, but that nomination application was refused by a delegate on 15 April 2019. Consequently, on 13 June 2019, Ms Johal’s visa was refused by the delegate on the basis that there was no approved nomination (at [28]). As Integrated Accountants did not apply for review, there was no approved nomination as required under cl 187.233(3) (at [29]).
The Tribunal accordingly found that Mr Johal does not meet cl 187.311, which requires him to be a member of the family unit of a person who holds a Subclass 187 visa. It found that there was also no evidence that establishes that Mr Johal meets the primary visa criteria (at [31]).
The Tribunal affirmed the delegate’s decision (at [33]).
APPLICATION TO THIS COURT
The application for judicial review filed by Ms and Mr Johal on 23 December 2020 contains the following grounds of review as follows (without alteration):
1.The Administrative Appeals Tribunal (AAT) failed to consider relevant information provided to it by the applicant, Mrs Davinderjeet Kaur Johal.
2.The AAT did not provide adequate opportunity for the applicant to provide information during the hearing:
2.1 The AAT conducted the hearing too quickly, not providing sufficient time for the applicant to consider and respond to questions from the AAT.
2.2 The telephone format of the hearing denied the applicant the opportunity to provide all the relevant information.
3.The AAT put undue weight on information which was not relevant to the application.
4.The AAT did not utilise its core function, which was to review the matter on its merits. The AAT has therefore denied the applicant procedural fairness and made a jurisdictional error.
Ms and Mr Johal filed an affidavit with that judicial review application which annexed a copy of the Tribunal’s decision.
Ms and Mr Johal appeared before the Court on 17 October 2024 without legal representation. The Court confirmed with Ms Johal that she had received copies of the Court Book and the Minister’s written submissions. She confirmed that she did not require an interpreter.
The materials before the Court include the application for judicial review and supporting affidavit filed by Ms Johal on 22 December 2020 (the affidavit being taken as read and in evidence at the hearing on 17 October 2024), a Court Book numbering 93 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 2 August 2024.
Ms Johal was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 17 October 2024, Ms Johal was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by Ms Johal, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 (Craig) at 178);
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).
However, it was also explained to Ms Johal that this was not an exhaustive list and she should attempt to articulate why she said the Tribunal had fallen into error.
Ms Johal was visibly distressed during the hearing. The Court made it clear that it would adjourn at any time if she became too upset, and did so on one occasion. The Court took her through each of the grounds she had set out in the application and invited her to say anything in respect of those grounds. At times, Mr Johal would ask to essentially finish a submission started by Ms Johal when she became overwhelmed. She also read from a prepared document. The Court enquired as to whether she would like to formally tender that document and she confirmed that she did. Counsel for the Minister, Mr Chan, did not object to that course. Those submissions are set out below.
I am writing this request, being in deep distress, to request a reconsideration of the decision made regarding my visa refusal. The whole process turned my life upside down, and since then, I feel I am losing everything that I worked so hard for with no fault of my own. I understand that the Tribunal decided upon this basis, but there had not been an approved nomination; this was utterly out of my control, and I and my family have had devastating consequences as a result.
The Tribunal acknowledged that they were favourable towards our submission and indicated that they would overturn our case positively if they had the legal power to do so. Unfortunately, they stated that they do not have the jurisdiction to change the decision, which is why we have been compelled to take this matter to court.
1. The Impact of Unlawful Restriction
My visa was refused on the grounds of my employer not applying for a review of the nomination decision-a fact that I was never informed about, let alone having any power to affect. I trusted them when they assured me that they would see me through this process. But their ignorance of immigration law led me into this nightmare. I have followed every rule, did everything that was asked of me, and I now face my life in Australia being taken away because of a mistake made by others, not my own.
I also received an email from the Department dated 13 June 2019, stating that a second nomination could not be attached to my visa application. This was an unduly strict interpretation of the rules, leaving me without a way forward and my future slipping away before me.
2. Exceeding Powers or Jurisdiction
I believe the Tribunal has been inflexibly harsh in its considerations in view of essential issues, such as failure on the part of my employer to apply for a review, or factors such as my hard effort to follow the process. What really hurts me is that I have struggled here trying to make a home for my family, and now I am being punished for things well beyond my control.
The moment I knew how long this court case was going to take, I applied for a state nomination-491 visa. Fortunately, that one came through, but the section 48 requirement could not be met due to COVID-19 and the flight bans. Again, this was out of my control, but it has further delayed my process and added to the uncertainty of my life.
3. How this Situation is Affecting My Family
The whole process has been heartbreaking-it is very hard to move from Melbourne to Adelaide. My daughter was born in Melbourne and thus an Australian citizen, and its impossible to let her stay in Australia by herself as she is 15 years old. She was only 8 years old at the time, and I can still hear her ask me why we had to leave her friends behind. She didn't want to move, and so I promised her it would be okay. That has been proven to be a lie, and it hurts me more than words can express. My 4-year-old son idolizes his sister; he, too, suffers with the same stress that we all have been under. Since our move, life has been nothing but unsurety.
I tried holding strong, keeping our family through it all together, but this continuous fight with the immigration system finally took a heavy toll on me. After moving to Adelaide, my social network imploded. My old friends, all of whom had been successful in obtaining visas for themselves, would laugh at my situation and make fun of how I was still struggling after more than a decade in Australia. Those mean comments killed my confidence and made me feel extremely alone. I went into a very dark place, suffering in silence with no one to turn to.
To escape from this pain, I started keeping myself away from those friends and immersed myself in community work-teaching Punjabi classes and volunteering at the Gurudwara (Sikh Temple). I pray a great deal, hoping the load lessens somewhat, but it never does. I haven't told my parents everything that is happening since they are older, suffering from health issues such as blood pressure and anxiety. They even call and invite me to visit them for wedding events, for instance, but I always say "soon," though I am not aware when or even if I ever will be able to go back. My family have never met my youngest son, and it truly breaks my heart that they haven't been able to hold my child.
4. The Impact on My Children and Husband
Due to this situation, my children are suffering. Every time my daughter asks for a birthday party or some sort of celebration, I must say, "Next year," because I just can't focus on anything else. I feel like I am not the mother I used to be, and that really hurts more than anything. My husband is suffering too. We have spent so much money on lawyers, trying to fix this, but we keep hitting walls. It's relentless stress that's just tearing us apart. We're exhausted, worn down, and I see how big an effect it's taking on our kids.
Well, I did everything right, yet I'm being punished. I followed the rules, worked hard, made sacrifices for my family, and yet here we find ourselves in this terrible situation. They're taking away my future, and there's nothing I can do to stop it.
My Plea for Mercy and Justice
I ask you to reconsider my case. It is not just the paperwork or technicality of it, but it is about my family's future, home, and life. I have been in this country for more than a decade now, and I have done everything that I was asked to do to please them, but all I feel right now is dismay. Please understand the human element in this case. I am not asking for special treatment, but just fairness and compassion for what we have endured.
I thank you for reading my request and taking my request into consideration. I pray you can see how much this has cost us and give me the chance to keep my family together, securing the life we worked so hard to build.
The additional oral submissions made by both Ms and Mr Johal essentially reflected the written submissions. Underlying their submission to the Court is a clear sense of grievance at an outcome grounded in a situation not of their own making.
CONSIDERATION
As outlined above, there are four grounds of review advanced in these proceedings. Noting that Ms and Mr Johal were unrepresented in this matter, the Court has endeavoured to interpret their grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392). In this matter, the grounds advanced by Ms Johal are reasonably clear.
Ground one
Through ground one, Ms Johal argues that the Tribunal failed to consider relevant information. This was not particularised in her application, however at the hearing, she clarified that the relevant information she referred to was the situation by which she came to not have an approved nomination. That is, the failure to have an approved nomination in place, or to seek review of the adverse decision in respect of the nomination, was the result of a mistake made by her employer. She also said that the Tribunal had been inflexibly harsh in its consideration of the reason why she did not have an approved nomination in place and her “hard effort to follow the process”.
In response, the Minister submitted that the Tribunal did expressly consider the unfortunate circumstances whereby Ms Johal’s employer failed to submit a valid application for a nomination. The Tribunal expressed sympathy for her situation, but in the absence of an approved nomination, it had no alternative but to affirm the delegate’s decision as she could not meet the criterion in cl 187.233. To the extent that she asserted the Tribunal’s decision was unreasonable by virtue of it being inflexibly harsh, the Minister submitted that the Tribunal was required to apply the Regulations. It could not go behind the Regulations or fail to apply them.
The Tribunal’s consideration of this is set out below.
…
24. …The Tribunal accepts Mrs Johal's evidence that she was unaware that Integrated Accountants Pty Ltd had not applied to the AAT for review of the decision to reject the related nomination application until she received the hearing invitation from the Tribunal. The Tribunal notes that this is a matter beyond Mrs Johal's control. The Tribunal appreciates the complexities of Australian migration law and has no doubt that Mr Bisam's lack of understanding and unfamiliarity with the legislation and his reliance on external advisors contributed to the nominator not applying for review of the related nomination application. However, it remains the case that the nominator has not applied for review of that decision.
25. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl.187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. The Tribunal acknowledges that the refusal of the application for the visas has placed Mrs Johal and her family in a most unfortunate position, which is not of her own making. However, the Tribunal has no discretion in relation to the requirement that the related nomination application be approved…
…
It is clear from the above passage that the Tribunal expressly had regard to the employer’s failure to apply for a review of the nomination refusal. The Tribunal also accepted that this arose through the employer’s lack of understanding of the nomination scheme and reliance upon external parties. It is equally apparent that the Tribunal found this to be an unfortunate result and sympathised with the situation Ms and Mr Johal found themselves in. However, the Tribunal correctly reasoned that Ms Johal could not meet the relevant criterion for the visa she sought if there was not an approved nomination.
This ground fails at a factual level.
Ground two
This ground has two limbs. The first is a complaint that the Tribunal hearing was conducted too quickly and that Ms Johal was not provided with sufficient time to consider and respond to questions which the Tribunal asked her.
The Minister submitted that this ground has no merit in circumstances where the hearing spanned 45 minutes, three witnesses gave evidence, and Ms Johal, who was represented, did not request further time to respond to the Tribunal’s questions. The Minister observed that, unlike Mr Bisam, who specifically requested further time to provide more evidence, at no point did Ms Johal indicate that she needed more time to provide the Tribunal with evidence. The Minister also observed that Mr Edwards’ emails on 24 November 2020 and 21 December 2020 requested the Tribunal make a decision before Christmas. Given the circumstances, the Minister submitted that it is difficult to see how the Tribunal’s hearing was conducted “too quickly” or deprived Ms Johal of the chance to respond to the Tribunal’s questions. In any event, the Minister says that, as the relevant issue was a binary one, it is hard to see how anything Ms Johal could say would have made any difference.
In Pabbi v Minister for Home Affairs [2019] FCCA 1750, this Court observed that there is no minimum statutory time limit for hearings before the Tribunal and that what is required is that the Tribunal provide the applicant with a real and meaningful opportunity to provide evidence and present arguments (at [54]-[55]). In the Court’s view, Ms Johal was provided with a meaningful opportunity. Both Ms and Mr Johal were given an opportunity to give evidence to the Tribunal. Furthermore, Ms Johal’s employer, Mr Bisam, gave evidence and was permitted by the Tribunal to provide additional information following the hearing. However, the Court does not accept the fact that Mr Edwards emailed the Tribunal asking for a decision to be made quickly has any bearing on this issue.
Further, the context in this matter is that the issue before the Tribunal was limited to whether there was an approved nomination. Ms Johal accepted that there was not. The Court accepts the Minister’s submission that this was a binary question for the Tribunal and, once established that Ms Johal could not meet the relevant criterion, there was little scope for further investigation. The length of the hearing should be viewed in light of that contextual background and the Court finds that Ms Johal was not denied an opportunity to present her case by virtue of the hearing length.
The second limb of this ground is that Ms Johal was denied an adequate opportunity to provide information because the hearing was held by telephone.
The Minister submitted that an applicant does not have a right to appear at an in-person hearing (citing Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at 546-547). The Tribunal decided to conduct a remote hearing considering the state of the pandemic, the nature of the matter and Ms Johal’s circumstances. In this respect, the Minister submitted that it was reasonable to conduct a telephone hearing.
Section 360 of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal. However, that does not mean that that appearance must be in person. In fact, s 366 makes it clear that an applicant may appear by telephone.
366 Oral evidence by telephone etc.
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
(2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.
The hearing took place in November 2020 during the height of the COVID-19 pandemic. It is well known that during this period, the Tribunal did not hold in-person hearings. Furthermore, in the response to the hearing invitation, Ms Johal answered “no” to the following question (CB 59):
Do you believe that you or another person will experience difficulty participating in the hearing by telephone or videoconference or the hearing cannot be conducted by telephone or videoconference?
Against that background, the Court finds that there was no denial of procedural fairness caused by the Tribunal holding a hearing by telephone.
No jurisdictional error is established by either limb of this ground.
Ground three
By ground three, Ms Johal asserts that the Tribunal placed undue weight on information which was not relevant to the application. This was not particularised in the application. At the hearing, Ms Johal made similar arguments to those pressed in respect of ground one. That is, the Tribunal should not have had regard to the application not being linked to the second nomination application because that was a matter which was not in the Tribunal’s hands.
The difficulty for Ms Johal is that whilst the Tribunal clearly considered everything she had submitted, its decision was ultimately tied to whether or not there was an approved nomination. It was an incontrovertible fact that there was no approved nomination with the original nomination having been refused and the employer not having sought review of that decision. In those circumstances, the Tribunal could only have regard to the fact that there was no approved nomination in considering whether the applicant met the criteria.
No jurisdictional error is made out in respect of this ground.
Ground four
Ground four asserts that the Tribunal failed to review the matter on its merits. At the hearing, Ms Johal told the Court that the Tribunal failed to provide any discretion or consideration for the employer’s role in the nomination process which led to the refusal of the visa. Ms Johal said that the employer had clearly indicated an intention to continue to employ her. The Tribunal’s refusal to consider the second nomination resulted in a harsh outcome.
The Court is of the view that the Tribunal did review the merits of this matter. The difficulty for Ms Johal is that the Tribunal did not have any discretion to make any other decision once it was established that there was no approved nomination. The Tribunal considered all of the submissions Ms Johal made. It particularly considered, and accepted, that she was not at fault for the lack of an approved nomination. It also noted the evidence from the employer that he wished to continue to employ her and wanted to apply for a further nomination. Ultimately, even after accepting all of her evidence, the Tribunal reasoned that it had no discretion in relation to the requirement that the related nomination application be approved. It was correct to do so and no jurisdictional error arises in respect of this.
The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none. The Court also acknowledges the tactful and respectful way in which Mr Chan made his submissions on behalf of the Minister. The Court observes that this is an appropriate advocacy style for matters such as this that other counsel would do well to emulate.
The Court is satisfied that, even adopting the broad approach referred to in [42] of these reasons, no jurisdictional error is apparent.
MINISTERIAL INTERVENTION
The Court has considerable sympathy for Ms Johal. There is no indication that she has been anything other than a responsible and diligent worker, working in an in-demand profession, compliant with the conditions of her visa, and willing to uproot her life and the life of her family in order to assist her employer. Her situation appears to have arisen from the rather hapless actions of her employer who nevertheless continues to support her. Despite the distressing circumstances she finds herself in, she has engaged in community and volunteer work. She would be an asset to this country. She has two young children, one an Australian citizen, and it is unequivocally clear that their best interests would be served by the family remaining in Australia.
Unfortunately, for the reasons set out above, the Court has been unable to find jurisdictional error in the decision of the Tribunal and cannot provide Ms Johal with the relief she has sought.
Nevertheless, the Court draws attention to the Minister’s discretionary power to replace an unfavourable Tribunal decision with a more favourable decision concerning the relevant visa application. Ms Johal is encouraged to seek advice in making such an application for Ministerial intervention. However, that is a matter for the Minister.
CONCLUSION
The application for review, supporting affidavit and additional submissions made by Ms Johal have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 8 November 2024
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