Jurado v Minister for Immigration
[2020] FCCA 2746
•6 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JURADO v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2746 |
| Catchwords: MIGRATION – Employer Nomination (subclass 186) visa – decision of the Administrative Appeals Tribunal – where applicant failed to respond to invitation to comment – whether any right to attend hearing – no approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 359B, 359C, 363A, 379C, 379G, 476 Migration Regulations 1994 (Cth), reg.4.17 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 |
| Applicant: | JUAN MANUEL MORA JURADO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 85 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 October 2020 |
| Date of Last Submission: | 5 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 85 of 2020
| JUAN MANUEL MORA JURADO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Colombia. He arrived in Australia in 2009 (Court Book (“CB”) 11).
On 25 January 2017, the applicant applied for an Employer Nomination (subclass 186) visa (the “visa”) (CB 1-14). He was nominated by The Allen Family Trust (the “sponsor”) for the position of Customer Service Manager.
On 10 July 2017, the then Department of Immigration & Border Protection invited the applicant to comment on information that the sponsor had had their nomination refused (CB 19-22).
On 17 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 23-31). The delegate was not satisfied that the applicant met cl.186.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant was not the subject of an approved nomination.
On 4 September 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 31-32).
On 28 January 2020, the Tribunal invited the applicant to comment on the following information which, it was explained, could “be a reason for affirming the delegate’s decision” (CB 57-58):
The particulars of the information are:
• The Trustee for the Allen Family Trust lodged an application for approval of a nomination on 24 January 2017, identifying the applicant as the nominee for the occupation of Customer Service Manager ANZSCO 149212.
• On 10 July 2017 the nomination application of The Trustee for the Allen Family Trust was refused by a delegate of the Minister of the Department. The sponsor subsequently made an application to the Tribunal for review of this decision. On 6 January 2020 the Tribunal affirmed the decision of the delegate in refusing the nomination application.
The reason that this information would be the reason or part of the reason for affirming the decision under review is that it is relevant to whether the first named applicant has an approved nomination. If a nomination of an occupation in association with the visa application has not been approved under s.140GB of the Migration Act 1958, the requirements of cl.186.223 of the Migration Regulations 1994 are not met and the Tribunal may find that the first named applicant does not meet the criteria for grant of an Employer Nomination Scheme (Subclass 186) visa.
No response was received from the applicant.
On 13 February 2020, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 62-66). The Tribunal did so without hearing from the applicant.
On 16 March 2020, the applicant filed an application in this Court seeking judicial review of Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicant must show jurisdictional error on the part of the Tribunal.
Tribunal’s Decision
The Tribunal’s decision is five pages long and spans 23 paragraphs.
The Tribunal began by identifying the type of visa the applicant had applied for. It then summarised the delegate’s finding and confirmed that the applicant was represented (at [1]-[6]).
The Tribunal then referred to the invitation to comment that was sent on 28 January 2020, as follows:
8. On 28 January 2020 the Tribunal wrote to the first named applicant pursuant to s.359A of the Act, inviting him to comment on or respond in writing to information that it considered would be part of the reason for affirming the decision under review. That information was as follows:
• The Allen Family Trust lodged an application for approval of a nomination on 25 January 2017, identifying the first named applicant as the nominee for the occupation of Customer Service Manager ANZSCO 149212.
• On 10 July 2017 a delegate of the Minister of the Department of Immigration and Border Protection made a decision refusing the sponsor's nomination application. The Allen Family Trust subsequently made an application for review of the primary decision.
• On 6 January 2020 the Tribunal made a decision affirming the decision of the delegate to refuse the nomination application.
9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 11 February 2020, the first named applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments
10. The first named applicant has not provided the comments or response within the prescribed period and no extension has been either sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the first named applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.
Having identified that the issue before it was whether the applicant was the subject of an approved nomination, the Tribunal then summarised what was required by cl.186.223 (at [12]-[14]).
The Tribunal continued:
15.The Allen Family Trust lodged an application for approval of a nomination on 25 January 2017, identifying the first named applicant as the nominee for the occupation of Customer Service Manager ANZSCO 149212.
16. On 10 July 2017 a delegate of the Department made a decision refusing the sponsor's nomination application. The Allen Family Trust subsequently made an application for review of the primary decision.
17. On 6 January 2020 the Tribunal made a decision affirming the delegate's decision to refuse the nomination application.
18. On the basis of the above evidence, the Tribunal finds that the first named applicant does not have an approved nomination (for an occupation), which has not subsequently been withdrawn.
19. Therefore, cl.186.223 is not met.
Noting that the applicant had not sought to satisfy the criteria in the Temporary Residence Stream, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa (at [20]-[23]).
Proceedings in this Court
The applicant’s application for judicial review dated 16 March 2020 contains three grounds of review, as follows:
1. The Second respondent did not accord me procedural fairness;
2. The second respondent denied me the opportunity, to comment on some aspects of their findings;
3. The second respondent failed to properly consider all elements of my application.
The applicant was given an opportunity to file an amended application, supporting affidavit evidence and an outline of submissions. No further materials were provided by the applicant.
The materials before the Court are thus limited to the applicant’s judicial review application dated 16 March 2020, a Court Book numbering 66 pages (marked as Exhibit 1) and an outline of submissions dated 7 September 2020 filed by the Minister.
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant appeared without legal representation, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
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 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated, in effect, that serious mistakes were made by the migration agents who represented him.
The Court will consider the applicant’s oral submissions below.
Consideration
Ground 1
Ground 1 states:
The Second respondent did not accord me procedural fairness
The applicant has not particularised how the Tribunal denied him procedural fairness. However, in its duty to the self-represented litigant (see, MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the Court has considered for itself whether there has been any denial of the procedural fairness obligations specified in Division 5 of Part 5 of the Act.
The applicant was invited to comment on information pursuant to s.359A of the Act. That invitation gave clear particulars of the information that the Tribunal considered would be the reason for affirming the delegate’s decision (i.e. that the sponsor’s nomination application had been refused), explained that this was relevant information and outlined the consequences that flow from the nomination being refused: the Act, s.359A(1)(a)-(b).
The invitation specifically requested that the applicant comment on or respond to the invitation in writing: the Act, s.359A(1)(c) and 359B(1).
The invitation was sent to the applicant’s authorised recipient by email (a method prescribed by s.379A(5) of the Act): s.359A(2)(a). The Tribunal was required, by virtue of s.379G of the Act, to send the invitation to the authorised recipient. The Tribunal was not required to send the invitation to the applicant himself.
The authorised recipient was deemed to have received the invitation at the end of the day on 28 January 2020: the Act, s.379C. The applicant was provided 14 days to respond to the invitation to comment (being the prescribed period as per s.359B(2) and reg.4.17(4) of the Regulations).
The invitation expressly stated that if the applicant did not respond within the time period, he would lose the entitlement to appear before the Tribunal. This arises by operation of ss.359C(2) and 360(3) of the Act. The applicant did not respond in writing. Hence, the Tribunal was not required to invite the applicant to appear at a hearing. Indeed, the Tribunal had no power to invite the applicant to attend the hearing: the Act, s.363A.
There is nothing to suggest that the Tribunal ought to have exercised its discretion to adjourn the matter or wait before making its decision. Section 359C of the Act allowed the Tribunal to make a decision “at any time”. At the time the invitation was sent to the applicant, there had been no correspondence received from him since August 2019. In light of this lack of engagement and, in the absence of any request for additional time or explanation for not responding to the information, it cannot be said that it was unreasonable for the Tribunal to make its decision when, and how, it did.
There was no denial of procedural fairness by virtue of the fact that the applicant was not invited to attend a hearing. Nor is there any denial of procedural fairness evident in the Tribunal’s conduct of the review as a whole.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 states:
The second respondent denied me the opportunity, to comment on some aspects of their findings
Again, the applicant has not identified what findings he was not given an opportunity to comment on.
The applicant’s ground fails at a factual level. The Tribunal did give the applicant the opportunity to comment or respond.
That opportunity took the form of the s.359A invitation to comment sent on 28 January 2020. The applicant was invited to comment, in writing, on the fact that the sponsor’s nomination had not been approved. It was explained that without that approval, the requirements of cl.186.223 of the Regulations could not be met.
The applicant did not respond.
For the reasons explained above (at [27]-[33]), the invitation to comment complied with the requirements of s.359A and 359B and, accordingly, constituted an “opportunity” to comment on the Tribunal’s ultimate dispositive finding (i.e., that the applicant was not the subject of an approved nomination).
No error arises in this regard.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 states:
The second respondent failed to properly consider all elements of my application.
Again, it is unclear what “elements” the applicant is referring to.
The Tribunal considered all that it was required to consider in order to determine whether the applicant could be granted the visa. It was a mandatory criterion of the visa that the applicant be the subject of an approved nomination. Without an approved nomination, the visa had to be refused.
Here, having noted that there was no approved nomination the Tribunal was required to refuse the visa. It did not need to consider any further “elements” relevant to the application.
Ground 3 is, accordingly, dismissed.
Oral Submissions
In his oral submissions the applicant stated that the migration agents who had assisted him had made “a lot of mistakes”. He referred, relevantly, to the fact that the two migration agents who represented him did not provide “the proper documents in support of the application” and failed to respond to requests from the Department and the Tribunal.
The applicant was represented by two different migration agents during the course of his visa application. It appears these agents represented both the applicant and the sponsor.
One migration agent represented the applicant from the filing of his application until 13 February 2019. Before this Court, the applicant indicated that this agent had failed to provide supporting documentation in relation to the sponsor’s application.
On 15 November 2018, this agent’s migration agent registration was suspended (CB 39-40).
In circumstances where this agent was replaced by another agent on 13 March 2019, there could be no fraud on the Tribunal by the first agent: as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. The Tribunal, at that stage, had done no more than acknowledge receipt of the application.
The applicant was asked if he also had concerns about the conduct of his second migration agent. He indicated that he did have concerns.
From the materials before the Court it is unclear whether the second migration agent advised the applicant about the invitation to comment. No response was provided which, as described above, ultimately led to the applicant losing the right to attend a hearing.
There is nothing in the materials before the Court to suggest that the second migration agent acted in a way that prevented the Tribunal from properly conducting its review in accordance with Division 5 of Part 5 of the Act. Indeed, the second migration agent appears to have acted competently on behalf of the applicant. The agent made a request for access to the Tribunal’s written materials and advised the Tribunal that the applicant and his partner were no longer in a relationship.
While it is the case that there was no response to the invitation to comment, on the materials before the Court this rises no higher than negligence or an oversight on the part of the agent. This does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The applicant’s oral submissions fail to identify any jurisdictional error.
To the extent that the applicant has concerns about the competency of the migration agents who acted on his behalf, he is encouraged to raise those concerns with the Office of the Migration Agents Registration Authority.
Futility
The Court notes that, even if there was an error in the Tribunal’s decision, any grant of relief would be futile. This is so because the applicant could not meet cl.186.223 of the Regulations if the matter were remitted. The applicant remains without an approved nomination. There is no evidence that the sponsor has sought judicial review and, on that basis, the Tribunal’s decision remains undisturbed. There would be no prospect of the applicant being successful before the Tribunal.
It is not the case that the applicant can find a new sponsor or submit a new nomination application: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[89]. The applicant’s application could not be successful without the sponsor first obtaining approval for the nomination. Here, that has not occurred.
Conclusion
The application for judicial review and the applicant’s oral submissions have failed to identify any jurisdictional error. The Court is otherwise satisfied that no error arises. Further, and in any event, any remittal would be futile as the applicant cannot succeed without an approved nomination.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 October 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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