Kainth v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 588
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 588
File number(s): MLG 1924 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 27 July 2022 Catchwords: MIGRATION – Temporary Business Entry visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness by failing to exercise its discretion to adjourn the matter or by failing to invite the applicant to attend a hearing – whether the Tribunal failed to conduct a review of the matter – whether the Tribunal acted unreasonably in refusing to review the delegate’s decision – whether the Tribunal misapplied or misconstrued the case of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 – whether the Tribunal misinterpreted or misapplied cl 457.223(4) in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in failing to consider information – whether the Tribunal “acted in haste” – whether the Tribunal failed to comply with its obligations pursuant to s 353 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider a relevant consideration or placed too much weight on irrelevant considerations – whether the Tribunal erred by failing to grant the applicant a “further seven day extension” – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 140G, 359, 359B, 359C, 360, 363, 363A & 476
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), reg 4.18A(4), cl 457.223(4) in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bodige v Minister for Immigration [2019] FCCA 1841
Bodige v Minister for Immigration and Border Protection [2018] FCA 2026
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Naeem & Ors v Minister for Immigration & Anor [2019] FCCA 2722
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 207
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZUSR v Minister for Immigration & Anor [2015] FCCA 3105
Division: Division 2 General Federal Law Number of paragraphs: 133 Date of hearing: 21 July 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms L Mills Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1924 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVJOT SINGH KAINTH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
27 JULY 2022
THE COURT ORDERS THAT:
1.The application, as amended on 7 March 2022, 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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 12). On 29 August 2013, he applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (the “visa”). In that application, the applicant identified Guru Tech Bahadur Pty Ltd T/A Royal Productions as his sponsoring employer (the “sponsor”) (CB 17). The applicant was nominated for the position of “Conference and Event Organiser” (CB 44).
On 5 November 2013, the then Department of Immigration and Border Protection (the “Department”) requested additional information from the applicant (CB 25-35).
On 5 December 2013, Vision Overseas Pty Ltd (the “applicant’s first representative”) requested an extension of time to allow the applicant to obtain his IELTS test examination results. The Department granted the applicant an extension of time to 15 December 2013 to provide further material (CB 36-38).
No further material was provided by or on behalf of the applicant.
On 23 January 2014, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 44-46). The delegate was not satisfied that the applicant met cl 457.223(4) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant demonstrated that he had the “skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation” (CB 45).
The applicant applied to the then Migration Review Tribunal (the “MRT”) for review of the delegate’s decision. On 28 January 2015, the MRT affirmed the delegate’s decision to refuse the visa (CB 49-55).
On 27 February 2015, the applicant applied to the then Federal Circuit Court of Australia (the “FCCA”) for review of the MRT’s decision. On 7 December 2016, Judge Riethmuller (as he then was) made orders, by consent, remitting the matter to the Administrative Appeals Tribunal (the “Tribunal”) for reconsideration (CB 56-57).
On 5 June 2017, the Tribunal requested that the applicant (through Lyttletons Lawyers, the “applicant’s second representative”) provide information to the Tribunal (CB 63-68). Relevantly, in the letter from the Tribunal to the applicant, the Tribunal advised as follows (CB 65-66):
You have provided a copy of the Nomination Approval Notice dated 4 December 2013. This nomination ceased after 12 months by reference to r.2.75.
Subclause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment.
You are invited to provide the following information in writing:
•Information that the visa applicant meet the cl. 457.223(4)(a) of the Regulations.
…
The information should be received by 19 June 2017. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 19 June 2017, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us before 19 June 2017 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 6 June 2017, the Tribunal was provided with an appointment of representative form by the applicant’s first representative via email (CB 69-72).
On 19 June 2017, the applicant’s first representative requested that the Tribunal provide an extension of two weeks so that the applicant could provide a response to the request for information (CB 73).
On 20 June 2017, the Tribunal granted the extension request, stating (CB 76):
We have considered the request carefully and have agreed to grant an extension of time. The comments or response must now be received by 4 July 2017.
If we do not receive your comments or response by 4 July 2017, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 4 July 2017, the applicant’s first representative requested that the Tribunal provide a further extension of time within which to provide additional documents (CB 77). Specifically, the applicant’s first representative stated:
I understand that AAT previously granted an extension to our client, but our client has instructed us that he is still waiting to receive some documents from his employer. Accordingly, he needs some more time to submit the requested information to the Tribunal.
Therefore, on behalf of our client, we request that you, please grant 28 days further extension to our client so that he can submit the requested documents as this is very important for fair justice.
On 4 July 2017, an officer of the Tribunal attempted to contact the applicant’s first representative and left a voicemail message for the first representative. The Tribunal’s record of that message provides as follows (CB 78):
I called and left message for the rep to let him know that no further extensions of time can be granted and that any docs the rep or applicant have should be submitted to AAT ASAP.
On 7 July 2017, an officer of the Tribunal spoke with the applicant’s first representative. A record of that conversation provides as follows (CB 79):
Further to my case note dated 4/7/17, the rep said that he will inform client that no further extension can be given.
On 17 July 2017, the Tribunal was contacted by a lawyer at BT Immigration Services (the “applicant’s new representative”) requesting a further extension of time as follows (CB 80):
I refer to the above applicant’s application for review, we are newly appointed as authorized representative for the above application with effect from 17/07/2017.
We sincerely request you to give us a week’s time, to get the file from previous agent And give a detail response.
For all future correspondences, communicate to below address.
On 16 August 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 85-90).
On 5 September 2017, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (CB 1-7). That application was supported by an affidavit, affirmed by the applicant (CB 8-10), which annexed a copy of the Tribunal’s decision.
The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
In assessing whether the Tribunal has fallen into jurisdictional error it is useful to first summarise the Tribunal’s decision in some detail: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897.
The Tribunal’s decision is six pages long and spans 24 paragraphs. The final two pages of the decision contain extracts of relevant provisions contained in the Regulations.
The Tribunal first detailed the type of visa under review (at [1]), noting that the applicant had applied for the visa on 29 August 2013 (at [2]).
The Tribunal then outlined the relevant legislative requirements as follows:
3.At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The Tribunal noted that the delegate had refused to grant the applicant the visa on 23 January 2014 because the applicant had not provided evidence that he had the “skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation” (at [4]).
The Tribunal explained that on 28 February 2015, a differently constituted Tribunal affirmed the decision under review. The Tribunal noted that the applicant had sought review of that decision and, on 7 December 2016, the matter was remitted to the Tribunal by the FCCA (at [5]).
The Tribunal continued:
6.On 5 June 2017, the tribunal, differently constituted, wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether the applicant is the subject of an approved nomination and meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.
7.The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the information was not provided in writing by 19 June 2017, and no extension of time has been sought or granted, the tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments.
8.On 19 June 2017, the applicant’s representative requested an extension of time to provide information. On 20 June 2017, the tribunal granted an extension of time for further statutory period until 4 July 2017.
9.On 4 July 2017, the applicant’s representative requested further extension of time to provide information requested in the tribunal letter of 5 June 2017. On the same day, the tribunal officer left the message for the applicant’s representative that, in accordance with the requirements of subsection 359B(4) of the Migration Act 1958, the tribunal may only grant an (one) extension of time and only for the further prescribed period. Accordingly the representative was informed that no further extension of time to provide information requested under s,359(2) of the Act can be granted by the tribunal.
The Tribunal noted that it was informed of the appointment a new representative on 17 July 2017 and that that representative had requested an additional seven days to provide a “detailed response” (at [10]). Despite that, however, as of the day of the Tribunal’s decision (that being 16 August 2017) no further correspondence had been received from the applicant or the applicant’s new representative (at [11]).
The Tribunal explained that, because the applicant did not provide the requested information within the prescribed period, s 359C of the Act applied and, subject to s 360(3) of the Act, he no longer had any entitlement to attend a Tribunal hearing. The Tribunal also noted that, because the applicant had no entitlement to attend a hearing, the Tribunal had no power to allow him to appear: s 363A of the Act and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (at [12]).
The Tribunal then considered whether it should adjourn the review to allow the applicant time to provide further evidence in support of his application (at [13]), noting it was not required to indefinitely defer its decision (citing Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 (“Huo”) and Manna v Minister for Immigration and Citizenship [2012] FMCA 28). The Tribunal also assessed the reasonableness of the adjournment request (citing Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Kaur v Minister for Immigration and Border Protection [2014] FCA 915) (at [14]).
The Tribunal considered whether any information confirming that the applicant met the requirements of cl 457.223(4)(a) in Schedule 2 of the Regulations was likely to be forthcoming, whether the applicant had already been given a fair opportunity to provide the information, the previous extensions of time granted and the significance of the information (at [15]).
Having done so, the Tribunal explained as follows:
16.On 5 June 2017, the tribunal wrote to the applicant under subsection 359(2) of the Act inviting him to provide information in writing that would confirm that the applicant meets the requirements of cl.457.223(4)(a). Upon applicant’s request, the tribunal granted an extension of time to provide requested information until 4 July 2017. The applicant has failed to provide the requested information within the prescribed periods set for this purpose.
17.On 17 July 2017, the applicant’s new representative requested additional seven days to provide detailed response. Despite the fact that no submissions or documents were submitted to the tribunal within the next seven days, the tribunal did not proceed to its decision until 16 August 2017.
The Tribunal had regard to the date of the visa application (being 29 August 2013) and noted that the delegate had refused the visa on 23 January 2014 for the reasons outlined above (at [18]).
The Tribunal noted that the applicant may need to depart Australia if he was not granted the visa but determined that there was nothing preventing the applicant from re-applying once he found a new sponsor (at [19]).
The Tribunal then determined as follows:
20.In these circumstances, and for the reasons set out in this decision record, the tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations. The tribunal is not disposed to delay making a decision indefinitely.
Upon consideration of the applicant’s request, the Tribunal declined to adjourn the matter further (at [21]).
The Tribunal ultimately concluded that:
22.Based on the evidence before it, the tribunal is not satisfied that the applicant is, at the time of decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased. The tribunal finds that the applicant does not satisfy cl.457.223(4)(a).
The Tribunal determined that the applicant did not meet the requirements for the standard sponsor stream (at [23]) and affirmed the delegate’s decision refusing to grant the applicant the visa (at [24]).
PROCEEDINGS IN THIS COURT
The applicant filed an application for judicial review in this Court on 5 September 2017. On 16 March 2022, he filed an affidavit annexing an amended application dated 7 March 2022, written submissions and a list of authorities. The amended application contains four “grounds of review” as follows:
1. The Tribunal failed to Accord to the applicant procedural fairness.
Particular:
a)The Tribunal's Purported decision not to exercise discretion under subsection 363(1)(b) of the Migration Act 1958. Was in breach of the applicant most fundamental right to procedural fairness both at common law and under section 360 of the Act being breaches constituting Jurisdictional error.
b)In reaching the decision in the way it did, the Tribunal failed to review Mr. Kainth application for review as required under section 430 of the Act, such failure also amounting to Jurisdictional error.
c)The Tribunal refusal to review the delegate decision was unreasonable applying the case of MIAC V Xijuan Li and Anor [2013] HCA 18.
d)The Tribunal misapplied and misconstrued the case of Huo V Minister of Immigration and Multicultural Affairs [2002] FCA 617 referred at Paragraph 14 of the decision because unlike the present case the applicant (in Huo v Minister) did appear before the Tribunal to present evidence.
2.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 45.223(4) of the Migration regulation 1994(Regulation)
a)The Tribunal erred in not considering whether the applicant meet other requirements of clause 457.223(4) of the regulations.
b)Applying Khatri & Anor v Minister for Immigration & Anor [2015] FCCA 407 the Tribunal erred in failing to consider information of which it was aware, and which was central to the applicant’s case in deciding to proceed to make a decision on 16 August 2017. The Tribunal failed to consider or enquire whether the applicant proposed nominator The trustee for Guru Teg Bahadur Unit Trust sponsorship application which was in effect. It was unreasonable for the Tribunal to proceed in haste with the decision considering the proposed nominator had previously lodged an application and appeared before the Tribunal to give evidence on 28 January 2015.
3.In the Alternative to Ground 1 and Ground 2 above the Tribunal erred by not complying with section 353(1) of the Migration Act 1994(the Act).
a)The Tribunal failed to comply with S 353(1) of the Act by not acting fairly and justly and denying the applicant sufficient time to organise a new nomination.
4.In the alternative, the Tribunal committed Jurisdictional error by not considering the relevant consideration but gave more emphasis on the non-relevant considerations:
a)The Tribunal did not consider the relevant work experience and the statement of the sponsor that the applicant was competent to work as an Event Organiser.
b)The Tribunal did not consider the English Proficiency report of the Applicant.
c)The Tribunal made irrelevant presumptions that requisite qualification and employment background were not necessary to perform the task of nominated occupation of Event Manager.
d)The Tribunal did not consider the immigration history of the Applicant.
The materials before the Court thus include the amended application for judicial review, written submissions and a list of authorities filed by the applicant on 16 March 2022 as annexures to the affidavit affirmed by him on 7 March 2022, a Court Book numbering 90 pages (marked as Exhibit 1), written submissions filed by the Minister on 4 July 2022, the affidavit of Jolanta Zofia Kowalewska sworn and filed on 19 July 2022 (the “Kowalewska affidavit”) and the affidavit of Catherine Lillian Joyce Patrick affirmed and filed on 19 July 2022 (the “Patrick affidavit”).
At the hearing before this Court (on 21 July 2022), the applicant appeared without legal representation. The Court confirmed with him that he had received a copy of the Court Book, the Minister’s written submissions and the Kowalewska and Patrick affidavits.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice 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 the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. 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 that background, the applicant emphasised that his “main concern” was that he had asked for a further extension of time (of seven days) and the Tribunal did not give it to him.
The applicant’s concern in this regard (as well as any concerns highlighted in the “grounds of review” as articulated in his amended application for judicial review) will be discussed below.
CONSIDERATION
Grounds of review
Ground 1
For ease of reference, ground 1 provides (without alteration):
1. The Tribunal failed to Accord to the applicant procedural fairness.
Particular:
a)The Tribunal’s Purported decision not to exercise discretion under subsection 363(1)(b) of the Migration Act 1958. Was in breach of the applicant most fundamental right to procedural fairness both at common law and under section 360 of the Act being breaches constituting Jurisdictional error.
b)In reaching the decision in the way it did, the Tribunal failed to review Mr. Kainth application for review as required under section 430 of the Act, such failure also amounting to Jurisdictional error.
c)The Tribunal refusal to review the delegate decision was unreasonable applying the case of MIAC V Xijuan Li and Anor [2013] HCA 18.
d)The Tribunal misapplied and misconstrued the case of Huo V Minister of Immigration and Multicultural Affairs [2002] FCA 617 referred at Paragraph 14 of the decision because unlike the present case the applicant (in Huo v Minister) did appear before the Tribunal to present evidence.
The first particular of this ground references a failure by the Tribunal to exercise its discretion under s 363(1)(b) of the Act to adjourn the matter, resulting in a failure to afford procedural fairness, as well as a failure to invite the applicant to appear before the Tribunal as required by s 360 of the Act.
Section 363(1)(b) relevantly provides as follows:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
…
As outlined in the Act, the Tribunal may choose to adjourn the review “from time to time” but is not required to do so.
In this regard, the Court notes the reasoning in Li, wherein the High Court assessed the scope of the exercise of a statutory discretion by a decision-maker as follows (emphasis added):
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In this matter, the Tribunal did outline its reasons for not adjourning. Those reasons were discussed by the Tribunal at [13]-[19] as follows (footnotes excluded):
13.The tribunal has also considered whether it should further adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
14.In doing so, the tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the tribunal is not required to indefinitely defer its decision making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection where analogous issues were discussed.
15.The tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.457.223 (4)(a) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information already, previous extensions of time granted and the significance of the information or documents to the applicant.
16.On 5 June 2017, the tribunal wrote to the applicant under subsection 359(2) of the Act inviting him to provide information in writing that would confirm that the applicant meets the requirements of cl.457.223(4)(a). Upon applicant’s request, the tribunal granted an extension of time to provide requested information until 4 July 2017. The applicant has failed to provide the requested information within the prescribed periods set for this purpose.
17.On 17 July 2017, the applicant’s new representative requested additional seven days to provide detailed response. Despite the fact that no submissions or documents were submitted to the tribunal within the next seven days, the tribunal did not proceed to its decision until 16 August 2017.
18.The tribunal has had regard to the fact that the visa application was lodged at the department on 29 August 2013 and that the Department refused the application on 23 January 2014 because the delegate concluded that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
19.The tribunal note that, if the applicant is not granted a temporary work visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for this visa once he finds the new employer willing to sponsor and nominate him for the position within their business.
The Tribunal ultimately decided not to exercise its discretion to adjourn the matter under s 363(1)(b) of the Act, explaining as follows:
20.In these circumstances, and for the reasons set out in this decision record, the tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations. The tribunal is not disposed to delay making a decision indefinitely.
21.Accordingly, the tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the requirements of cl.457.223(4)(a).
In effect, the Tribunal’s justification for refusing to adjourn the matter further was that the applicant had been given sufficient time to secure a new sponsor and to have a new nomination approved, the Tribunal had already provided an extension of time within which to provide material and there was no guarantee that any new nomination application would be forthcoming (or, if it were, if that application would be successful).
The Court notes that the Full Court of the Federal Court in Singh emphasises the following relevant principles (emphasis added):
47.This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
In the context of this matter, it cannot be said that the Tribunal’s reasons do not demonstrate an “intelligible justification” for the Tribunal’s refusal to adjourn the review application.
The High Court in Li also stresses that there is no obligation for a Tribunal to afford an applicant every opportunity to present his or her case, stating as follows (emphasis added):
82.It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
This is arguably what the Tribunal did here. It found that the applicant had been given a fair opportunity to provide relevant material or satisfy the legislative criteria. It also noted that it was uncertain when or if the applicant would provide any information regarding an approved nomination (at [19]) and ultimately decided not to exercise its discretion to adjourn the matter (at [21]).
Essentially, the Tribunal determined that “enough was enough” – ultimately deciding that the applicant had been given a sufficient opportunity to rectify the relevant issue and to obtain an approved nomination.
The Court is satisfied that the Tribunal’s decision here contains an “evident and intelligible justification” for its refusal to adjourn the matter.
The applicant’s second and third particulars allege a failure to review the application for review and unreasonableness in refusing to review the delegate’s decision.
The Tribunal here conducted a review as required by the Act and ultimately affirmed the decision under review on the basis that it was not satisfied that the applicant was the subject of an approved nomination. While the Tribunal’s reasons for affirming the decision under review were different to those provided by the delegate, this does not amount to “a failure to review”.
At the time that the Tribunal was conducting its review, there was information before it to suggest that the nomination had ceased. The Tribunal invited the applicant to provide information in that regard (pursuant to s 359(2) of the Act) by letter dated 5 June 2017 (CB 63-68). However, after multiple extension requests, the applicant ultimately did not provide any substantive response to the Tribunal. There was thus no evidence before the Tribunal to suggest that the applicant was the subject of an approved nomination or that any nomination application was pending.
Once the applicant failed to provide a substantive response to the invitation to provide information letter, s 359C(1) of the Act was enlivened. As a result, the Tribunal was not required to invite the applicant to attend a hearing (as the exception in s 360(2)(c) of the Act applied).
This Court has previously set out the consequence of the provisions of the Act in this regard in its decision in Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152. The Court repeats its analysis from that decision below, as follows.
Because s 360(2) of the Act applied, by virtue of s 360(3) of the Act, the applicant was not entitled to appear before the Tribunal. Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear. That section relevantly provides that:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The collective operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant’s failure to provide information in response to a request from the Tribunal.
The applicant here was not invited to a hearing as he was no longer entitled to attend a hearing. Further, the Tribunal had no power to allow the applicant to attend a hearing. That is, if the Tribunal had invited the applicant to attend a hearing, it would have exceeded its statutory powers and, accordingly, its jurisdiction.
The applicant was required to provide the information requested by the Tribunal in its letter dated 5 June 2017. He did not do so. This “triggered” the “cascading effect” inherent in ss 359C, 360 and 363A of the Act. The structure of the legislation is such that, no matter how compelling the reason for not providing the information is, if an applicant does not provide the information by the required date (and does not seek an extension) then the applicant loses his or her right to attend a hearing.
This was made clear to the applicant in the invitation to provide information letter which, relevantly, stated (CB 66):
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The Tribunal also reminded the applicant of this in its letter dated 20 June 2017 granting the applicant an extension of time within which to provide that information (CB 74-76). Specifically, the Tribunal noted that (CB 76):
If we do not receive your comments or response by 4 July 2017, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant was, accordingly, on notice of what would occur if he did not provide a response to the Tribunal. He chose not to do so.
No error arises from the Tribunal’s failure to invite the applicant to attend a hearing before it.
The applicant, in the fourth particular, further claims that the Tribunal misapplied and misconstrued the case of Huo because the applicant in Huo (unlike the applicant in the current matter) had appeared before the Tribunal at a hearing.
A similar issue was considered in Naeem & Ors v Minister for Immigration & Anor [2019] FCCA 2722 (“Naeem”) wherein Judge Riley of this Court found as follows:
17.The Tribunal relied on two cases to conclude that it is not required to indefinitely defer its decision-making processes. The first was Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. In that case, Conti J stated:
31.I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal’s decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.
18.The Minister accepted that Huo was distinguishable from the present case. In Huo, the Tribunal found that a sponsorship nomination was not likely to be approved. The Tribunal in the present case did not express any view about the likelihood of the nomination approval application being successful. The Tribunal merely said that there was no evidence suggesting that the nomination will be approved. That observation was neutral, in the context of this case.
19.The second case that the Tribunal relied upon was Manna v Minister for Immigration and Citizenship [2012] FMCA 28. In that case, Nicholls FM, as his Honour then was, said:
60.In all therefore, there was no obligation on the Tribunal to advise the applicant as to when it would make its decision. In the context, it was reasonably open to the Tribunal to find that the applicant had been given a reasonable opportunity to meet the legislative requirement for “competent English”. The applicant was put on notice of the opportunity to sit an IELTS test at a time which would have allowed her to submit an IELTS report at a time prior to the time of decision.
61.There is no obligation on the Tribunal to delay making its decision in these circumstances, particularly given the history to which it had regard. In all the circumstances the Tribunal’s exercise of the discretion to proceed was not arbitrary or capricious. While it may be described as a “hard” decision, it cannot be said to be “unfair” given the applicant had ample opportunity and was on notice of the relevant issues.
20.The Minister also accepted that Manna is distinguishable. In Manna, it was incumbent upon the applicant to sit an IELTS test and submit the results to the Tribunal. In the present case, the first applicant had done all he could to meet the relevant requirements by lodging his nomination approval application. The matter was then in the hands of the Minister.
21.However, the Minister argued that, although Huo and Manna were factually distinguishable, it was open to the Tribunal to rely on them for a general approach. In support of that proposition, the Minister referred to Chen v Minister for Immigration and Border Protection [2016] FCCA 2351 where Judge Smith said:
29.The fourth attack is that the authorities referred to by the Tribunal were factually distinguishable. Whether or not those cases are distinguishable is irrelevant. The Tribunal did not purport to follow them in any narrow sense of that word, but only examined the approach taken by the Tribunal to the issues that arose and then took into account the judicial approval of that approach. Thus, at [39], it referred to the fact that the Tribunal’s “approach was endorsed” in a decision of this Court. Further, and in any event, the circumstances in Ghori v Minister for Immigration & Citizenship [2011] FCA 759 were similar to those before the Tribunal to the extent that there had been previous applications for extensions of time. There was nothing illogical about the Tribunal’s approach. It is one taken by the Courts on a daily basis in the consideration of the exercise of discretionary powers.
22. I accept the Minister’s proposition in a general sense…
As outlined in Naeem, while the factual circumstances of the case of Huo and the present matter may differ, Huo continues to stand for the proposition that the Tribunal is under no obligation to indefinitely postpone the making of a decision solely on the basis that the applicant wished to attempt to meet a visa criterion not yet met: Huo at [31].
Here, the applicant gave no indication of what steps he was taking to meet the relevant visa criterion. In fact, the applicant did not, at any time, suggest that he was attempting to obtain a new nomination or that any nomination application was pending.
The Court is satisfied that the Tribunal did not misconstrue or misapply Huo.
No error arises in relation to ground 1.
Ground 2
For ease of reference, ground 2 provides (without alteration):
2.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 45.223(4) of the Migration regulation 1994(Regulation)
a)The Tribunal erred in not considering whether the applicant meet other requirements of clause 457.223(4) of the regulations.
b)Applying Khatri & Anor V minister for immigration & Anor [2015] FCCA 407 the Tribunal erred in failing to consider information of which it was aware, and which was central to the applicants case in deciding to proceed to make a decision on 16 August 2017. The Tribunal failed to consider or enquire whether the applicant proposed nominator The trustee for Guru Teg Bahadur Unit Trust sponsorship application Which was in effect. It was unreasonable for the Tribunal to proceed in haste with the decision considering the proposed nominator had previously lodged an application and appeared before the Tribunal to give evidence on 28 January 2015.
This ground raises concerns about the Tribunal’s interpretation and application of cl 457.223(4) in Schedule 2 of the Regulations.
The Court does not accept that any error arises in this regard. The Tribunal found that the applicant was not the subject of an approved nomination and did not satisfy cl 457.223(4) in Schedule 2 of the Regulations. That finding was dispositive. Whether the applicant met other requirements for the grant of the visa was irrelevant: Bodige v Minister for Immigration [2019] FCCA 1841 (“Bodige”) at [24] per Judge Riley. There was no requirement for the Tribunal to consider any other visa criteria in order to discharge its obligations in relation to the review of the matter.
This Court has recently considered this issue in Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 207. The analysis provided in that decision applies equally in this matter and provides as follows.
Clause 457.223(4) of Schedule 2 to the Regulations provided:
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba)either:
(i)the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d) the Minister is satisfied that:
(i)the applicant’s intention to perform the occupation is genuine; and
(ii)the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and …
A literal reading of the provisions in cl 457.223(4) of the Regulations makes it clear that the Tribunal was required to consider each of the subclauses of cl 457.223(4) of the Regulations and that the first applicant was required to satisfy each subclause. This is because of the use of the word “and” after each subclause.
If an applicant does not satisfy cl 457.223(4)(a) of the Regulations, it is then irrelevant whether he or she may satisfy the other subclauses: Bodige at [24], leave to appeal refused in Bodige v Minister for Immigration and Border Protection [2018] FCA 2026.
Here, on the evidence, no valid nomination existed. As such, the requirements of the relevant subclause were not met.
The evidence before the Tribunal demonstrated that a nomination had been approved on 4 December 2013 but that that nomination had ceased after a 12 month period (CB 65). There was no evidence before the Tribunal to suggest that a new nomination was in place or that any nomination application was pending.
On the basis of the above, the Court is satisfied that the Tribunal acted appropriately. It cannot be said that the Tribunal “misconstrued or misapplied” cl 457.223(4) in Schedule 2 of the Regulations.
In so far as the applicant suggests that the Tribunal erred in failing “to consider information of which it was aware, and which was central to the applicant’s case” (being whether the nomination applied for by the sponsor “was in effect”) or that the Tribunal “acted in haste”, this fails on a factual level.
In its letter to the applicant dated 5 June 2017, the Tribunal stated (at 65):
You have provided a copy of the Nomination Approval Notice dated 4 December 2013. This nomination ceased after 12 months by reference to r.2.75.
Subclause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment.
You are invited to provide the following information in writing:
•Information that the visa applicant meet the cl. 457.223(4)(a) of the Regulations.
In response, the applicant’s first representative requested a “two-week extension” so that the applicant could “provide the required information” (CB 73). Specifically, the request stated:
I have been instructed by our client that he needs minimum two weeks more time to provide the required documents to AAT.
Therefore, on behalf of our client, I request that you please grant a two-week extension to our client so that he can provide the required information to AAT.
That response did not indicate that a new sponsorship was being arranged or was pending or that a new sponsor had been obtained by the applicant.
The applicant was, in any event, granted the extension of time and the Tribunal advised as follows (CB 76):
On 19 June 2017 we received a request for an extension to time to provide the comments or response.
We have considered the request carefully and have agreed to grant an extension of time. The comments or response must now be received by 4 July 2017.
If we do not receive your comments or response by 4 July 2017, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant (through his first representative), then requested a further 28 day extension, stating that (CB 77):
I understand that AAT previously granted an extension to our client, but our client has instructed us that he is still waiting to receive some documents from his employer. Accordingly, he needs some more time to submit the requested information to the Tribunal.
Therefore, on behalf of our client, we request that you, please grant 28 days further extension to our client so that he can submit the requested documents as this is very important for fair justice.
Once again, there was no suggestion that a new sponsorship or nomination application would be forthcoming or what documents were being collated or would be submitted. In fact, at no time between 5 June 2017 (being the date the invitation to provide information was sent to the applicant) and 16 August 2017 (being the date of the Tribunal’s decision) did the applicant or his various representatives provide any substantive response to the Tribunal.
The Tribunal was not given any information to suggest that the applicant was the subject of an approved nomination or any evidence to suggest that such a nomination might be forthcoming. The Tribunal granted the applicant an additional 14 days within which to provide information and some two and a half months passed between the invitation letter being sent to the applicant and the Tribunal ultimately making its decision.
In the circumstances of this matter, it cannot be said that the Tribunal failed to consider information or that it acted in haste.
No error arises in relation to ground 2.
Ground 3
For ease of reference, ground 3 provides:
3.In the Alternative to Ground 1 and Ground 2 above the Tribunal erred by not complying with section 353(1) of the Migration Act 1994(the Act).
a)The Tribunal failed to comply with S 353(1) of the Act by not acting fairly and justly and denying the applicant sufficient time to organise a new nomination.
Here, the applicant claims that the Tribunal did not comply with its obligations pursuant to s 353 of the Act. That provision provides:
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
In this matter, the Tribunal did not make its decision on the basis of a technicality or rule of evidence as contemplated by s 353 of the Act. Instead, it assessed whether the applicant met the core criteria for the grant of the visa. In this regard, the Tribunal was required to consider whether the applicant was the subject of an approved nomination (which had not ceased), as required by cl 457.223(4) in Schedule 2 of the Regulations. The applicant was not the subject of an approved nomination.
To the extent that the applicant suggests that the Tribunal failed to provide him “sufficient time to organise a new nomination”, the Court disagrees. The applicant was put on notice from 5 June 2017 that the Nomination Approval Notice dated 4 December 2013 had ceased. The applicant did not provide any evidence to the Tribunal at any point to suggest that a new nomination would be forthcoming and, as outlined above, the Tribunal was not required to delay its decision indefinitely to allow the applicant “time to organise a new” nomination.
No error arises in relation to ground 3.
Ground 4
For ease of reference, ground 4 provides (without alteration):
4.In the Alternative, the Tribunal committed Jurisdictional error by not considering the relevant consideration but gave more emphasis on the non-relevant considerations:
a)The Tribunal did not consider the Relevant work experience and the statement of the sponsor that the applicant was competent to work as an Event Organiser.
b)The Tribunal did not consider the English Proficiency report of the Applicant.
c)The Tribunal made irrelevant presumptions that requisite qualification and employment background were not necessary to perform the task of nominated occupation of Event manager.
d)The Tribunal did not consider the immigration history of the Applicant.
As outlined above, the question before the Tribunal in this matter was whether the applicant was the subject of an approved nomination as required by cl 457.223(4) in Schedule 2 of the Regulations. In those circumstances, consideration of factors referenced by the applicant (such as the applicant’s work competence and English proficiency) were simply not relevant.
The Tribunal referenced the applicant’s skills, qualifications and employment background on two occasions only in its reasons. Both of which were in reference to the findings made by the delegate as follows:
4.The delegate refused to grant the visa on 23 January 2014 on the basis that cl.457.223(4)(da) was not met because the applicant had not provided any evidence to support a finding he had the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation.
…
18.The tribunal has had regard to the fact that the visa application was lodged at the department on 29 August 2013 and that the Department refused the application on 23 January 2014 because the delegate concluded that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The Tribunal did not make any independent findings or place any specific weight on any factors related to the applicant’s work experience, his competence as an Event Organiser, his English proficiency or his qualifications. Instead, the Tribunal simply outlined the delegate’s core findings (at [4] and [18] outlined above).
The requirement that an applicant be the subject of an approved nomination is not discretionary. It is mandatory. The Tribunal was thus not required to consider the applicant’s immigration history, work experience or any other factors. The sole question for the Tribunal was whether there was a valid nomination in place for the applicant in relation to the nominated position.
The applicant was asked to provide evidence in that regard by letter sent to the applicant (through his first representative) dated 5 June 2017 (CB 63-68). The applicant requested (and was granted) an extension of time within which to provide that information. However, information regarding an approved nomination was ultimately not forthcoming.
In circumstances where there was no evidence before the Tribunal to indicate that the applicant was the subject of an approved nomination, the Tribunal made the only decision open to it.
No error arises in relation to ground 4.
Applicant’s oral submissions
As outlined above, at the hearing of this matter, the applicant raised concerns about the Tribunal’s failure to grant “a further seven day extension of time”. The applicant appeared to suggest that, had he been granted the further seven days, he “would have been able” to provide the Tribunal with “required documentation” relevant to “the nomination”.
Before addressing this concern, it is useful to again summarise the chronology relevant to the Tribunal’s request for information and the multiple extensions of time requested on behalf of the applicant.
On 5 June 2017, the Tribunal requested that the applicant (through his representative) provide information to the Tribunal (CB 63-68).
On 19 June 2017, the applicant’s first representative requested that the Tribunal provide an extension of two weeks so that the applicant could provide a response to the request for information (the “first extension request”) (CB 73).
On 20 June 2017, the Tribunal granted the extension request (CB 74-76).
On 4 July 2017, the applicant’s first representative requested that the Tribunal provide a further extension of time within which to provide additional documents (the “second extension request”) (CB 77).
On 4 July 2017, an officer of the Tribunal attempted to contact the applicant’s first representative and left a voicemail message for the first representative. The Tribunal’s record of that message provides as follows (CB 78):
I called and left message for the rep to let him know that no further extensions of time can be granted and that any docs the rep or applicant have should be submitted to AAT ASAP.
On 7 July 2017, an officer of the Tribunal spoke with the applicant’s first representative. A record of that conversation provides as follows (CB 79):
Further to my case note dated 4/7/17, the rep said that he will inform client that no further extension can be given.
On 17 July 2017, the Tribunal was contacted by the applicant’s new representative requesting a further extension of time of one week (the “third extension request”) (CB 80).
The Tribunal did not expressly respond to that third extension request.
On 16 August 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 85-90).
Section 359B(4) of the Act sets out the circumstances in which the Tribunal can extend the period of time within which an applicant can respond to an invitation. Section 359B(4) of the Act provides:
359B Requirements for written invitation etc.
…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
The “further prescribed period” is set out in reg 4.18A(4) of the Regulations which relevantly provides as follows:
4.18A Prescribed periods—invitation to comment or give additional information (Act, s 359B(4))
…
(4)If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:
(a)commences when the person receives notice of the extended period; and
(b) ends at the end of:
(i)14 days after the day the person receives notice of the extended period; or
(ii)if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
Here, the Tribunal invited the applicant to provide information with 14 days (being the prescribed period) (CB 63-68). Having considered the first extension request (CB 73), the Tribunal extended that period for a prescribed further period of 14 days (being the extended period) (CB 74-76).
As outlined by Judge Nicholls in SZUSR v Minister for Immigration & Anor [2015] FCCA 3105 (“SZUSR”) at [60], “there is nothing in the legislative or regulatory scheme to permit a further extension of time. There was no power for the Tribunal to further extend what was the extended period already allowed”.
The Tribunal explained this to the applicant’s first representative when responding to the second extension request (CB 78-79).
While the Tribunal did not expressly respond to the third extension request (that is, the request for a further 7 days) (CB 80), as set out in oral submissions by the Minister, the applicant was already on notice that the Tribunal was unable to grant any further extensions of time when the Tribunal provided its response to the second extension request.
Further, even if the Tribunal’s decision not to respond to the 7 day request (or, indeed, grant it) is indicative of an “error” on the part of the Tribunal, that error would not, contextually, have been material. This is because, as outlined above, the Tribunal had no power to “further extend what was the extended period already allowed”: SZUSR at [60].
Futility
The Court acknowledges, and accepts, the Minister’s submission (at [50]-[52] in written submissions filed in this Court on 4 July 2022) that, even if an error did arise in the Tribunal’s approach and its written reasons, any remittal to the Tribunal would be futile. This is because the applicant cannot now be granted the visa that he seeks.
On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). Unfortunately for the applicant, that amending legislation removed subclass 457 from the list of skilled visas. As such, even if the Court were to remit this matter to the Tribunal, there is nothing the Tribunal could do to assist the applicant as the visa he seeks is no longer available to him and he cannot obtain a new nomination for the purposes of his current application.
On that basis, any remittal to the Tribunal would be futile.
CONCLUSION
The amended application for judicial review (dated 7 March 2022 and annexed to the applicant’s affidavit filed in this Court on 16 March 2022) has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error. Further, even if an error were identified, remittal to the Tribunal would be futile as the applicant us now unable to obtain a new nomination under s 140G of the Act (and has not been able to do so since March 2018).
The application (as amended) is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 July 2022
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