Kartar Investments Pty Ltd v MICMSMA
[2020] FCCA 5
•16 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARTAR INVESTMENTS PTY LTD AS TRUSTEE FOR KARTAR FAMILY TRUST v MINISTER FOR IMMIGRATION & ANOR and GOYAL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 5 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decisions – refusal of an employer nomination and refusal of an employment visa – no approved nomination at the time of the visa decision – whether the Tribunal should have awaited judicial review of the nomination refusal or otherwise fell into jurisdictional error considered – no jurisdictional error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.360, 363 Migration Amendment (Specification of Occupations) Regulations 2017 (Cth) Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth) Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) |
| Cases cited: Bhandari v Minister for Immigration [2017] FCA 272 Carrascalao v Minister for Immigration (2017) 252 FCR 352 Chhetri v Minister for Immigration [2016] FCA 734 Craig v South Australia (1995) 184 CLR 163 Hossain v Minister for Immigration (2018) 264 CLR 123 Huang v Minister for Home Affairs & Anor [2019] FCCA 1764 Minister for Immigration v Kamruzzaman (2009) 112 ALD 550 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Singh (2014) 231 FCR 437 Minister for Immigration v SZJSS (2010) 243 CLR 164 Minister for Immigration v SZVFW (2018) 357 ALR 408 Minister for Immigration v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Shahid v Minister for Immigration [2004] FCA 1412 Shrestha v Minister for Immigration (2018) 359 ALR 22 Song v Minister for Home Affairs [2019] FCA 970 SZTEX v Minister for Immigration [2014] FCA 1269 WACO v Minister for Immigration (2003) 131 FCR 511 Talha v Minister for Immigration (2015) 235 FCR 100 WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | KARTAR INVESTMENTS PTY LTD AS TRUSTEE FOR KARTAR FAMILY TRUST ABN 36 653 303 543 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1932 of 2018 |
| Applicant: | GAURAV GOYAL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2594 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2020 |
REPRESENTATION
| Solicitors for the Applicants: | Mr M Arch of Concordia Pacific |
| Counsel for the Respondents: | Ms C Winnett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS – SYG1932/2018
The application filed on 11 July 2018 is dismissed.
ORDERS – SYG2594/2018
The application filed on 14 September 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1932 of 2018
| KARTAR INVESTMENTS PTY LTD AS TRUSTEE FOR KARTAR FAMILY TRUST |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
SYG 2594 of 2018
| GAURAV GOYAL |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
These are two proceedings which I heard at the same time (but sequentially). In proceeding SYG1932/2018 (the Kartar proceeding) the applicant (Kartar) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 June 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to refuse approval of a nomination of an employment position. In proceeding SYG2594/2018 (the Goyal proceeding), the applicant (Mr Goyal) seeks judicial review of a decision of the Tribunal made on 22 August 2018. The Tribunal affirmed a decision of a different delegate not to grant Mr Goyal a regional employer nomination visa.
The following statement of background facts is derived from the submissions of the parties.
On 15 September 2016, Kartar’s migration agent submitted on its behalf an Application for Employer Nomination for a Permanent Appointment[1] (Nomination Application). The Nomination Application stated[2] that the scheme type for which the application was submitted was the “Regional Sponsored Migration Scheme – visa subclass 187”,[3] under the “direct entry” stream. It also stated that the position to be filled and ANZSCO occupation was “Post Office Manager” at Trafalgar in Victoria;[4] and that the nominated person was Mr Goyal.[5] Kartar submitted various documents in support of the application, including a contract between Kartar and Mr Goyal dated 20 June 2016,[6] a position description for the position,[7] and a “Regional Sponsored Migration Scheme – Regional Certifying Body advice – Form 1404” for the position of Post Office Manager.[8]
[1] Court Book in Kartar proceedings (CB KTF) 1
[2] at CB KTF 1
[3] Contra application for review filed 11 July 2018 (Kartar Federal Circuit Court Application), Ground 1, particular 1
[4] CB KTF 4
[5] CB KTF 6
[6] CB KTF 41
[7] CB KTF 50
[8] CB KTF 61
On 30 March 2017, the delegate refused the Nomination Application on the ground that the nomination did not meet the requirements in either subregulation 5.19(3) or subregulation 5.19(4) of the Migration Regulations 1994 (Cth) (Regulations).[9]
[9] CB KTF 72, 77
Kartar sought review of the delegate’s decision in the Tribunal on 3 April 2017.[10] On 13 and 19 March 2018 respectively, the Tribunal wrote to Kartar’s representative seeking further information in respect of the review application.[11] Relevantly for present purposes, the 19 March 2018 letter stated that the Nomination Application could only be approved if the Tribunal was satisfied that all of the relevant criteria in regulation 5.19 of the Regulations were met at the time of its decision, and noted that the application was made under the Direct Entry nomination stream (Direct Entry stream), meaning that the relevant criteria were those set out in regulation 5.19(2) and (4).[12] The Tribunal sought eight different categories of information “addressing these criteria”,[13] including the following:[14]
5. Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;
· for example, job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (see and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function)
[10] CB KTF 78
[11] CB KTF 91, 95
[12] CB KTF 95
[13] CB KTF 95
[14] CB KTF 96
“ANZSCO” is explained at [60]-[61] below.
By email dated 3 April 2018, Kartar’s representative provided responses and further material in respect of the Tribunal’s requests of 13 and 19 March 2018.[15] Relevantly, that material included a written submission[16] addressing the question of whether the tasks of the nominated position were “consistent with the tasks of the nominated occupation as listed in the ANZSCO when taken in the context of where the position will be performed”.[17] The submission extracted the section from ANZSCO describing “Unit Group 1421 Retail Managers”, consisting of a description (“RETAIL MANAGERS organise and control the operations of establishments which provide retail services”), an explanation of “Indicative Skill Level”, and the following details concerning tasks:[18]
[15] CB KTF 104
[16] CB KTF 145
[17] CB KTF 147
[18] CB KTF 147
Tasks Include:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment’s goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
The submission then extracted the description for “142115 POST OFFICE MANAGER”: “Organises and controls the operations of a post office. (skill level 2)”.[19] It went on to explain how Kartar contended that the nominee’s duties “match[ed the] ANZSCO description”.[20]
[19] CB KTF 147
[20] CB KTF 147-148
On 2 May 2018, Kartar’s representative submitted further supporting documents,[21] including a further written submission.[22] That submission relevantly stated that the appropriate regulation under which to assess the application was regulation 5.19(4), concerning “Nomination through Direct Entry Stream”.[23] As to the requirement in regulation 5.19(4)(h)(i)(A) or 5.19(h)(ii)(D) that the tasks to be performed in the position “correspond to the tasks of an occupation specified by the Minister by an instrument in writing” for the respective subparagraph, the submission contended that Kartar’s “job description is consistent with that of ANZSCO’s explanation”, and that “[t]he tasks correspond to the tasks mentioned in ANZSCO”.[24]
[21] CB KTF 190
[22] CB KTF 197
[23] CB KTF 197-198
[24] CB KTF 207-208
Following the submission of some further documents by Kartar’s representative on 10 May 2018,[25] the Tribunal held a hearing in respect of the application on 15 May 2018. Mr Daljeet Singh, the owner of Kartar’s business, appeared in person and Kartar’s representative was present by phone.[26] Following the hearing, Kartar’s representative submitted additional documents,[27] including a further written submission,[28] on 17 May 2018.
[25] CB 229
[26] see CB KTF 101, 229, 315 [5]-[6], 316 [11]
[27] CB KTF 284
[28] CB KTF 291
On 15 June 2018, the Tribunal affirmed the delegate’s decision to refuse the nomination.[29] Whilst the key aspects of the Tribunal’s reasoning are described in more detail below, it is convenient to note at this point that the Tribunal held that the application did not satisfy regulation 5.19(4)(h), specifically, the requirement that the tasks to be performed in the nominated position correspond to the tasks of an occupation specified by the Minister by legislative instrument.[30]
[29] CB KTF 311-314
[30] see CB KTF 321 [38], 322 [41]-[42], 324 [49]-[51]
By an application filed on 11 July 2018, Kartar sought judicial review of the Tribunal’s decision in this Court. The Minister filed a response on 27 July 2018.
Goyal proceeding
On 7 October 2016, Mr Goyal’s migration agent submitted on his behalf an Application for a Permanent Employer Sponsored or Nominated Visa.[31] The Nomination Application stated[32] that the visa subclass applied for was 187 and the visa application scheme was “direct entry”. It also stated that the nominated occupation was “Post Office Manager” and the nominating employer was Kartar.[33] Mr Goyal submitted various documents in support of the application.[34]
[31] Court Book in the Goyal proceedings (CB GG) 1
[32] at CB GG 1
[33] CB GG 5, 7
[34] CB GG 12-29
On 30 March 2017, the delegate wrote to Mr Goyal with an invitation for him to comment on information relevant to his visa application.[35] The delegate noted that the Nomination Application submitted by Kartar, listing Mr Goyal as its nominee, had been refused, which meant that Mr Goyal’s visa application could not be approved. The delegate invited Mr Goyal to withdraw his application, failing which his application would be refused.
[35] CB GG 32
On 2 May 2017, the delegate refused Mr Goyal’s application[36] on the ground that he had not satisfied the requirement in Schedule 2 clause 187.233(3) of the Regulations (“The Minister has approved the nomination”) because Kartar’s nomination application had been refused on 30 March 2017.
[36] CB GG 36
Mr Goyal sought review of the delegate’s decision in the Tribunal on 10 May 2017.[37] On 27 June 2018, the Tribunal wrote to Mr Goyal’s representative, inviting his comment on or response to certain information.[38] The Tribunal stated that it had affirmed the delegate’s decision to refuse Kartar’s nomination application, and noted that it was a requirement for the grant of the visa to him that the position specified in his visa application be the subject of an approved nomination. The Tribunal attached a copy of its notification of decision on Kartar’s review application.[39]
[37] CB GG 42
[38] CB GG 50
[39] CB GG 53
On 13 July 2018, Mr Goyal’s representative emailed the Tribunal in the following terms:[40]
[40] CB GG 54
In regard to the above matter please defer the decision of case number 1710077 for the above application as the nominator (KARTAR FAMILY TRUST ATF KARTAR FAMILY TRUST) has applied Federal circuit court appeal.
Find attached the evidence of the appeal application.
The email attached a copy of the originating application in the Kartar proceeding.[41]
[41] CB GG 56
The Tribunal responded to that email by letter dated 25 July 2018.[42] The letter noted Mr Goyal’s request for deferral of his matter pending determination of an appeal before the Federal Circuit Court in the Kartar proceeding, and relevantly stated:
The Tribunal advises that after serious consideration of your request by Member Stooke AM, the Member asked that we hereby inform you that the Tribunal does not speculate in relation to matters of appeal and considers that it is bound to deal with cases expeditiously and efficiently, as is required by the guidelines of good practice.
As such, the Tribunal hereby informs you that the decision in the matter pertaining to Mr Goyal – Case Number 1710077 will not be deferred to a time post matters of an appeal before the Federal Circuit Court.
[42] CB GG 64
On 30 July 2018, the Tribunal again wrote to Mr Goyal’s representative, inviting Mr Goyal to attend a hearing[43] and seeking a completed “response to hearing invitation – MR” form within 7 days.[44] Mr Goyal’s representative provided his completed response on 10 August 2018.[45] The hearing before the Tribunal took place on 15 August 2018, with Mr Goyal attending in person and his representative by phone.[46] In the course of the hearing, Mr Goyal provided a copy of a Tribunal decision in another matter in respect of a nomination application.[47]
[43] CB GG 67
[44] CB GG 68
[45] CB GG 69-73
[46] CB GG 76
[47] CB GG 79
On 22 August 2018, the Tribunal affirmed the delegate’s decision to refuse Mr Goyal’s visa application.[48] In its decision, the Tribunal summarised and set out extracts of its correspondence with Mr Goyal’s representative concerning Mr Goyal’s request for a deferral of a decision in his matter.[49] It stated that it asked Mr Goyal at the hearing if he had an approved nomination, and that Mr Goyal had explained that approval of the nominated position had been refused.[50]
[48] CB GG 94-98
[49] CB GG 96-97 [13]-[14]
[50] CB GG 97 [14]-[18]
The Tribunal noted that Schedule 2 clause 187.233 of the Regulations, setting out certain criteria for visa applicants in the Direct Entry stream, relevantly required that the position to which the application relates be the subject of an application for approval of a nominated position which had been approved.[51] It found that Mr Goyal had not produced evidence of any approved nominated position, meaning that the requirements of clause 187.233 had not been satisfied.[52] The Tribunal affirmed the delegate’s decision for that reason.
[51] CB GG 97 [18]-[19]
[52] CB GG 98 [20]-[21]
The current proceedings
The Kartar proceeding began with a show cause application filed on 11 July 2018. The Goyal proceeding began with a show cause application filed on 7 September 2018. Both applicants continue to rely upon those applications.
In the Kartar proceeding, three grounds of review are advanced:
Ground 1: The Administrative Appeals Tribunal ("the Tribunal") committed jurisdictional error in affirming the refusal of the application for approval of the nomination of the occupation of Post Office Manager on the basis that the requirements of regulation 5.19(4)(h) ("the regulation") of the Migration Regulations 1994 were not met by reason of its failure to take relevant considerations into account.
Particulars:
1. The nomination at issue was a "Direct Entry" nomination for the grant of a visa under the Employer Nomination Scheme -"Subclass 186".
2.Regulation 5. l 9(4)(h) requires in relevant part that "the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing".
3.At the time the application for approval of the nomination was made, on 15 September 2016, the instrument that was in force, "IMMI 16/060" specified that the occupation of Post Office Manager was an occupation that was eligible for a nomination under the Direct Entry stream.
4.The Tribunal failed to consider that the occupation that was the subject of the nomination was in fact the occupation of a Post Office Manager.
5.The Tribunal failed to consider that the tasks that would actually be performed in the position correspond directly to the tasks of the occupation of a Post Office Manager as described in the Australia and New Zealand Standard Classification of Occupations ("ANZSCO").
6.The Tribunal failed to consider that the contract of employment between the applicant, the Kartar Family Trust ATF the Kartar Family Trust and the nominated employee called for the nominated employee to perform the tasks of a Post Office Manager as described in ANZSCO.
7.The Tribunal failed to consider written submissions that had been made to the Department of Home Affairs in support of the nomination, and which comprised part of the evidence before the Tribunal, which demonstrated that the tasks that were to be performed in the position corresponded to the tasks of a Post Office Manager as described in ANZSCO.
Ground 2: The Tribunal committed jurisdictional error by taking into account irrelevant considerations in arriving at its decision.
Particulars:
1.The Tribunal erroneously focussed on the question of whether the tasks to be performed in the nominated occupation would be those of a Retail Supervisor as described in ANZSCO.
2.In so limiting its consideration to whether the tasks of the nominated occupation would be those of a Retail Supervisor, the Tribunal completely omitted any proper, genuine and realistic consideration of whether the tasks of the occupation would be those of a Post Office Manager as described in ANZSCO.
3.The Tribunal also erroneously focussed only on those tasks that are currently being performed by the nominee, and in so doing failed to consider the full range of tasks that would be performed by the nominee under the contract of employment with the applicant which by its terms will come into effect upon the grant of a visa to the nominee.
Ground 3: The Tribunal committed jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant's claims that the tasks that were to be performed in the nominated occupation would be those of a Post Office Manager as described in ANZSCO.
Particulars:
1.The Tribunal did not engage in an active intellectual process to compare the tasks that would be performed in the nominated occupation, as described in the employment contract and in the material that was submitted to the Department of Home Affairs in support of the application for approval of the nomination, with the tasks of the occupation of Post Office Manager as described in ANZSCO.
In the Goyal proceeding, one particularised ground is advanced:
Ground 1: The Administrative Appeals Tribunal committed jurisdictional error by refusing to adjourn the proceedings pending the determination of related proceedings in the Federal Circuit Court.
Particulars:
1. The proceedings before the Tribunal involved an application for merits review of a decision by a delegate of the Minister to refuse an application for a "Regional Employer Nomination (Permanent) visa.
2.It is a criterion for the grant of a Regional Employer Nomination visa that the applicant be nominated for the visa by a proposed sponsoring employer.
3.The applicant was nominated for the visa by his proposed employer, the Kartar Family Trust ATF the Kartar Family Trust ("the Kartar Family Trust").
4.The occupation for which the applicant was nominated was that of a Post Office Manager in a post office that is owned and operated by the Kartar Family Trust and which is located in Trafalgar, Victoria.
5.A delegate of the Minister refused the application of the Kartar Family Trust for approval of the nomination of the applicant.
6.On 15 June 2018, the Tribunal affirmed the decision of the delegate to refuse the application of the Kartar Family Trust for approval of the nomination of the applicant. .
7.On 11 July 2018, the Kartar Family Trust sought judicial review of the Tribunal's decision to affirm the refusal of the nomination in the Federal Circuit Court of Australia.
8.On 1 August 2018, the Federal Circuit Court listed the application for judicial review of the Kartar Family Trust for hearing before Judge Driver on 4 December 2019.
9.The applicant's migration agent notified the Tribunal concerning the application for judicial review of the Kartar Family Trust that is pending Federal Circuit Court and requested that the Tribunal adjourn the hearing on the applicant's application for merits review pending the determination of the proceedings in the Federal Circuit Court.
10. The Tribunal refused the applicant's request that the proceedings be adjourned, and affirmed the refusal of the visa application on the sole basis that the applicant did not have an approved nomination from a sponsoring employer.
11. The pending proceedings before the Federal Circuit Court have the potential to change the outcome of the application for merits review before the Tribunal, inasmuch as a decision by the Federal Circuit Court that the decision of the Tribunal to affirm the refusal of the nomination was affected by jurisdictional error could potentially lead to a different decision by the Tribunal on remittal, namely one to approve the nomination of the applicant. Such a decision by the Tribunal would have the effect of eliminating the sole ground on which the Tribunal relied on as the basis for refusal of the visa application.
12. In these circumstances, it was legally unreasonable, and thus jurisdictional error, for the Tribunal to refuse to grant an adjournment of these proceedings.
It is common ground between the parties that if the Kartar proceeding fails in these proceedings then Mr Goyal would also fail because it would be futile to remit his matter to the Tribunal in the absence of an approved sponsor.
I have before me as evidence the court books filed on 24 August 2018 (in the Kartar proceeding) and 23 November 2018 (in the Goyal proceeding). I also have before me as evidence in each matter an affidavit made by the applicants’ solicitor annexing the relevant decision of the Tribunal.
Consideration
Kartar proceeding generally
Kartar contends, in essence, that the Tribunal fell into error because it failed to engage with the material advanced by it in order to establish that the nominated position met the visa criteria. The position of Post Office Manager related to a franchise post office at Trafalgar, Victoria, a town of about 4,000 people. The evidence is that the post office at Trafalgar was a stand alone business operating as a franchised post office and not a mere general store. The services offered at the post office were the same as those offered at post offices in other places. It might, in the circumstances, be thought a simple matter to determine whether the position nominated for Mr Goyal was, indeed, the position of manager of the post office.
Kartar’s application for judicial review is predicated on three closely related grounds: Ground 1 of the application asserts that the Tribunal committed jurisdictional error by failing to take relevant considerations into account; Ground 2 of the application asserts that the Tribunal committed jurisdictional error by taking into account irrelevant considerations, and Ground 3 of the application asserts that the Tribunal fell into error by failing to engage in an active intellectual process when considering the claims of the Kartar.
All three of these grounds are premised on well-established forms of jurisdictional error. In particular, the High Court in Craig v South Australia[53] at [14] held that overlooking relevant material and relying on irrelevant material constitutes jurisdictional error:
If...an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[53] (1995) 184 CLR 163
This passage from Craig that describes the grounds of jurisdictional error was quoted with approval in the reasons of McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf,[54] where it was also observed by their Honours, at [82], that:
”Jurisdictional error” can thus be seen to embrace a number of different kinds of error….What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.
[54] (2001) 206 CLR 323
The requirement that an administrative decision-maker must engage in an “active intellectual process”, and must consider the merits of a case in a manner that is “proper, genuine and realistic” in the sense of being “meaningful” is equally well established.[55]
[55] See Carrascalao v Minister for Immigration [2017] FCAFC 107
Kartar contends that there were several instances where the Tribunal committed jurisdictional error in this case in the process of evaluating whether the position that was the subject of the nomination made by Kartar was accurately characterised as that of a “Post Office Manager” (and thus an occupation that was eligible for the grant of a Regional Employer Nomination visa).
First, although the Tribunal made a passing reference at [39][56] to the fact that a “detailed position description” relating to the ANZSCO occupation of post office manager had been provided by Katar, the decision record does not recite the contents of this position description. Nor does the decision record contain any “step-by-step” comparison between the tasks described in this position description and the tasks identified in ANZSCO for the occupation of “Post Office Manager”. There is said to be no discussion or analysis anywhere in the text of the Tribunal’s decision as to whether the tasks stated in the position description correspond to the occupation of Post Office Manager.
[56] CB KTF 322.
Secondly, the Tribunal’s decision does not contain any reference to the “Letter of Engagement” for the employment of the nominee Mr Goyal at the Trafalgar Post Office that was included in the evidence before the Tribunal[57], nor does it acknowledge that this Letter of Engagement contains a clause[58] that requires the nominee to perform the duties that are listed in the “Position Description”.
[57] CB KTF 170-173
[58] CB KTF 170, clause 1.4
Thirdly, although the Tribunal decision refers, again at [39], to the fact that the nominating sponsor gave evidence before the Tribunal concerning the role of the nominee, and describes the evidence that was given concerning the tasks actually performed by the nominee, there is said to be no discussion in the decision or any other indication that the Tribunal engaged in a meaningful evaluative exercise to compare the tasks actually performed with those listed in ANSCO for the occupation of Post Office Manager.
Fourthly, the decision is said not to include any mention or quotation of the description of the tasks of the occupation of Post Office Manager that are provided in the ANZSCO.
The Tribunal thus is said to have failed to consider evidentiary material that was highly relevant to the determinative question under regulation 5.19 of whether the tasks to be performed in the nominated position corresponded with the tasks of the position as described in ANZSCO.
The Tribunal is also said to have failed to engage in an active and meaningful intellectual process to analyse and compare whether the tasks of the nominated position, as described in the evidence, did in fact correspond to the ANSCO description of the occupation.
The Tribunal’s decision is also said to be infected with jurisdictional error for the further reason that the Tribunal relied on irrelevant material.
Kartar submits that practically the entirety of the Tribunal’s analysis and discussion in the decision is focused on the question of whether the tasks of the nominated position correspond to an occupation other than the one identified in the nomination, specifically the question of whether the nominated position corresponds to the occupation of “Retail Supervisor”.
This analysis is said to have been “altogether irrelevant” to the determinative question of whether the tasks of the nominated position correspond to the nominated occupation of Post Office Manager.
Furthermore, the “exclusive focus” in the Tribunal’s decision on the issue of whether the nominated position corresponded with the occupation of “Retail Supervisor” is said to be illustrative of the Tribunal’s failure to engage in an active and meaningful intellectual process with the real issue in this case, namely, whether or not the nominated position corresponded to that of Post Office Manager as described in the ANZSCO.
Lastly, Katar contends that the Tribunal relied on irrelevant matters in arriving at its conclusions. These were referenced at [49] of the Tribunal’s decision, and included:
a)“that the applicant[59] remains actively involved in the Trafalgar post office and has overall control of the business”; and
b)that the applicant’s “father is working full-time within the business and has a professional background”.
[59] This reference to “the applicant” is evidently meant by the Tribunal to refer to the individual who is the owner or principal of the Kartar Family Trust
Kartar submits that neither of these matters is “remotely relevant” to the question of what the actual tasks of the nominated position would be, or to whether those tasks would correspond to the tasks of the occupation as described in ANZSCO. It was an error for the Tribunal to take them into account.
I do not accept Kartar’s contentions. Fundamentally, the Tribunal did engage with the material advanced by Kartar in support of its nomination application but it was not satisfied that the nominated position was in reality that of manager of the post office. Only three people worked at the post office, the first being the controller of the sponsor (Mr Singh) and the second being his father. In essence, the Tribunal reasoned that the position nominated was an inferior position to that of Post Office Manager.
In this regard, I accept the submissions of the Minister.
At all relevant times, regulation 5.19 of the Regulations provided that a nominator may apply to the Minister for approval of the nomination of a position in Australia,[60] and set out two streams under which a nomination could be accepted: the Temporary Residence Transition nomination stream,[61] or the Direct Entry stream.[62] Relevantly, regulation 5.19(4), concerning the Direct Entry stream, provided that the Minister must approve a nomination if the various criteria in that subparagraph were satisfied. Regulation 5.19(5) provided that the Minister must refuse a nomination if neither of subregulations (3) or (4) applied.
[60] regulation 5.19(1)
[61] regulation 5.19(3)
[62] regulation 5.19(4)
Kartar’s challenge to the Tribunal’s decision hinges upon the application of certain elements of regulation 5.19(4)(h). At all relevant times, that subparagraph contained two routes for satisfying the criterion: one set out in subparagraph (4)(h)(i) and one set out in subparagraph (4)(h)(ii). Relevantly for present purposes, one of the requirements for subparagraph (4)(h)(i) to apply was as follows:[63]
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph[.]
[63] regulation 5.19(4)(h)(i)(A)
Similarly, one of the requirements for subparagraph (4)(h)(ii) to apply was as follows:[64]
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph[.]
[64] regulation 5.19(4)(h)(ii)(D)
Regulation 5.19 underwent several amendments between the time that the Nomination Application was submitted and the date of the Tribunal’s decision in Kartar’s review application.[65] None of those amendments altered the requirements in regulations 5.19(4)(h)(i)(A) or 5.19(4)(h)(ii)(D) aside from the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (2018 Regulations), which repealed and substituted a new regulation 5.19. However, Schedule 1 item 178 of the 2018 Regulations relevantly inserted the following new provision into Schedule 13 of the Regulations:
6705 Application provisions in relation to nominations under regulation 5.19
(1)Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to an application for approval of the nomination of a position made before the commencement day.
[65] Migration Legislation Amendment (2017 Measures No 3) Regulations 2017 (Cth) (2017 Measures No 3 Regulations), Schedule 6 items 3-6, commencing 1 July 2017; Migration Amendment (Specification of Occupations) Regulations 2017 (Cth) (2017 Specification of Occupations Regulations), Schedule 1 items 5-7, commencing 1 July 2017; Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (2018 Regulations), Schedule 1 item 129, commencing 18 March 2018
The consequences of this for the present proceeding is that the relevant provisions governing Kartar’s application for review before the Tribunal were regulations 5.19(4)(h)(i)(A) or 5.19(4)(h)(ii)(D), and the instruments made under those sub-subparagraphs (see [55]-[59] below), as in force immediately before 18 March 2018. I accept that, given that the nomination application was made in respect of visa subclass 187,[66] the applicable provision was in fact regulation 5.19(4)(h)(ii)(D).
[66] CB KTF 1
Goyal proceeding: Schedule 2 clause 187.233(3)
At all relevant times, Schedule 2 clause 187.23 set out the legal requirements for applicants seeking to satisfy the primary criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream. Those requirements included clause 187.233. Within clause 187.233, cl 187.233(3) was in the following terms: “The Minister has approved the nomination”. The meaning of that “nomination” was explained in clause 187.233(1), which relevantly provided that the position to which the application related had to be the position nominated in an application for approval that sought to meet various prescribed requirements.
Again, clause 187.233 underwent several amendments between the time that Mr Goyal’s visa application was submitted and the date of the Tribunal’s decision.[67] None of those amendments altered the requirement in clause 187.233(3) for a nomination approved by the Minister. However, by application of Schedule 13 item 6705(3) of the Regulations, inserted by Schedule 1 item 178 of the 2018 Regulations, the version of clause 187.233 governing Mr Goyal’s application for review before the Tribunal was clause 187.233 as in force immediately before 18 March 2018.
[67] 2017 Measures No 3 Regulations, Schedule 6 item 8, commencing 1 July 2017; 2018 Regulations, Schedule 1 item 158, commencing 18 March 2018
IMMI 17/058
The legislative instrument entitled Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 (Cth) (IMMI 17/058) commenced on 1 July 2017 and was repealed on 18 March 2018.[68] That instrument, which was relevantly made under sub-subparagraph 5.19(4)(h)(ii)(D) of the Regulations (clause 3), specified occupations which may be nominated by employers in relation to applicants for subclass 187 visas (clause 6). Clause 7 of IMMI 17/058 provided as follows:
[68] Migration (IMMI 18/045: Exemptions to Skill, Age and English Language Requirements for Subclass 186 and Subclass 187 Visas) Instrument 2018 (Cth), Schedule 1 item 1
7 Occupations for Subclass 187 visas
For the purposes of sub-subparagraph 5.19(4)(h)(ii)(D) of the Regulations, the specified occupations are occupations which meet all of the following requirements:
(a)the occupation is listed in ANZSCO;
(b) the occupation has an ANZSCO skill level of one, two or three; and
(c)the occupation is listed in Schedule 1 to this Instrument.
Schedule 1, entitled “Occupations for Subclass 187 Visas”, contained a table of occupations, which relevantly included the following:[69]
[69] page 8
Occupation ANZSCO Code Skill Level Retail Manager (General) 142111 2 Antique Dealer 142112 2 Betting Agency Manager 142113 2 Hair or Beauty Salon Manager 142114 2 Post Office Manager 142115 2 Travel Agency Manager 142116 2
The table in Schedule 1 did not list the occupation “Retail Supervisor”.
By contrast, the Migration (IMMI 18/005: Specification of Occupations and Assessing Authorities – Subclass 186 Visa) Instrument 2018 (Cth) (IMMI 18/005), which commenced on 17 January 2018 and was repealed on 18 March 2018,[70] specified certain occupations for the purposes of regulation 5.19(4)(h)(i)(A) of the Regulations (clause 6(1)).
[70] Migration (IMMI 18/049: Specification of Occupations and Assessing Authorities – Subclass 186 Visa) Instrument 2018 (Cth), Schedule 1 item 1
Given that Kartar made its nomination application in respect of visa subclass 187 (the Regional Sponsored Migration Scheme),[71] the applicable legislative instrument was IMMI 17/058,[72] and the relevant question for the Tribunal was whether the “tasks to be performed” in the nominated position “correspond to the tasks of an occupation specified by the Minister” in IMMI 17/058.[73]
[71] CB KTF 1, 197
[72] Contra Kartar Federal Circuit Court Application, Ground 1, particular 3
[73] regulation 5.19(4)(h)(ii)(D))
ANZSCO
IMMI 17/058 describes occupations listed in “ANZSCO”. In this context, “ANZSCO” means the Australian and New Zealand Classification of Occupations published by the Australian Bureau of Statistics, as in force on 17 January 2018.[74] The nature and status of ANZSCO was conveniently explained by Perram J in Song v Minister for Home Affairs.[75] After citing the Full Federal Court’s more extended explanation in Talha v Minister for Immigration[76] at [17], his Honour continued at [5]:
‘ANZSCO’ is an acronym for the Australian and New Zealand Standard Classification of Occupations and is produced by the Australian Bureau of Statistics. The ANZSCO contains a listing of all of the occupations in the Australian and New Zealand job markets (including the self-employed). Each ‘occupation’ is identified by a means of a six digit code. For example, a judge is 271211. ‘Occupations’ are then grouped together into more generalised clusters known as ‘unit groups’ which are given a four digit code. For example, a judge is in the ‘judicial and other legal professionals’ unit group with code 2712. Unit groups are in turn grouped into clusters known as ‘minor groups’ which are identified by a three digit code. For example, judicial and other legal professionals fall under the ‘legal professionals’ minor group with code 271. Minor groups are clustered together into ‘sub-major groups’ which are identified by a two digit code. For example, legal professionals fall within the ‘legal, social and welfare professionals’ sub-major group, code 27. Sub-major groups are clustered together in ‘major groups’ identified by one digit code. As a final example, legal, social and welfare professionals fall within the ‘professionals’ major group, with code 2. The occupations … lie at the most granular level of the hierarchy and describe actual jobs.
[74] See regulation 1.03 of the Regulations (definition of “ANZSCO”) read with Migration (IMMI 18/007: Specification of Occupations and Assessing Authorities) Instrument 2018 (Cth), clause 5
[75] [2019] FCA 970 at [5]
[76] (2015) 235 FCR 100
As already mentioned, the occupation to which Kartar’s nomination application pertained was Post Office Manager, which had the ANZSCO code 142115. “Post Office Manager” forms part of the “Retail Managers” unit group, the description and tasks for which are extracted at [7] above and at CB KTF 147.
Kartar’s particular grounds of review
Ground 1
By Ground 1, Kartar claims that the Tribunal failed to take relevant considerations into account.
Reading the Tribunal’s decision as a whole, it is evident that the Tribunal correctly identified that the occupation the subject of the nomination was the occupation of Post Office Manager and considered whether the tasks to be performed in the position corresponded with the tasks of that occupation. The Tribunal stated that it had reviewed the delegate’s decision the subject of its review,[77] which clearly stated that the occupation proposed in the nomination was “Post Office Manager – 142115”.[78] In summarising Mr Singh’s explanation of the proposed role of the nominee, the Tribunal noted that Kartar had provided a “detailed position description … which included ANZSCO Unit Group Retail Manager 142115 – Post Office Manager”.[79] In the Tribunal’s discussion of whether or not regulation 5.19(4)(h) had been satisfied, it stated that Kartar’s representative had “made submissions that the ANZSCO Code 142115 – Post Office Manager is the appropriate descriptor for the position”.[80] In the Tribunal’s key paragraphs of reasoning at [49]-[50], it:
a)stated that it had “carefully considered the evidence, the submissions and material provided before the hearing”,[81] which included Kartar’s extracts from ANZSCO of the entries for “Unit Group 1421 Retail Managers” and “142115 Post Office Manager”;[82] and
b)clearly focused on the “managerial” nature of the nominated occupation, concluding that the tasks that the nominee would perform were not suggestive of the “full scope of a ‘managerial’ role” and that the owner of the business would continue to perform “managerial functions”.
[77] CB KTF 315 [7]
[78] CB KTF 72
[79] CB KTF 321-323 [39]
[80] CB KTF 324 [48]
[81] CB KTF 324 [50]
[82] CB KTF 147
Contrary to Kartar’s submissions, the Tribunal did compare, and conduct a qualitative analysis of, the nominated position and the ANZSCO position.
The Tribunal’s reference in an earlier part of its decision to the occupation of “Retail Manager (General) … 142111”[83] did not form part of its reasoning concerning regulation 5.19(4)(h). It could not have affected the result in any event because that position falls within the same “Retail Managers” unit group, a group of occupations in which the position-holders “organise and control the operations” of retail establishments.[84]
[83] CB KTF 317 [17]
[84] CB KTF 147; cf CB KTF 324 [49]-[50]
There is no basis in the decision for inferring that the Tribunal failed to consider the contract of employment and written submissions provided by Kartar. The Tribunal referred to the contract at numerous points in the decision,[85] as well as the position description cited in the contract,[86] and stated that it had considered all material provided before the hearing.[87] It was not necessary for the Tribunal to “recite the contents of” the position description, or to set out a “step-by-step” comparison between the tasks described in that position description and those of the ANZSCO position.
[85] see eg CB KTF 318 [21], 323-324 [45]
[86] CB KTF 322 [39]
[87] CB KTF 324 [50]
Nor can it be inferred simply from the Tribunal’s failure to quote extracts from the ANZSCO “Post Office Manager” description that the Tribunal failed to consider the tasks of that occupation. The analysis described at [63] above demonstrates that the Tribunal correctly went about its task; declining to quote from the material it considered does not give rise to jurisdictional error.
The nub of Kartar’s complaint is that the Tribunal did not accept its case that the tasks to be performed in the nominated position corresponded with the tasks of ANZSCO occupation 142115 (Post Office Manager).[88] However, a decision as to whether the former tasks are those of a Post Office Manager is a question of fact,[89] and no jurisdictional error generally occurs if a decision-maker makes a “mere” error of fact in the course of its decision.[90] Further, the weight that the Tribunal gives to various considerations, and to the evidence before it, is a matter for the Tribunal.[91] Here, the Tribunal’s factual conclusions were open to it on the evidence. As well as considering Kartar’s documentary material, the Tribunal took account of Mr Singh’s evidence at the hearing concerning the nominee’s role,[92] including his evidence that the nominee would not perform any tasks additional to those described for the occupation of Retail Supervisor,[93] and that Mr Singh performs tasks in the business that include supervision of Mr Goyal and the other employee (Mr Singh’s father) and “OHS issue management”.[94] Ultimately, the Tribunal concluded that the nominee’s role as described in the evidence “relative to the functions retained by” Mr Singh did “not suggest that the full scope of a ‘managerial’ role is performed”.[95]
[88] See, similarly, WACO v Minister for Immigration (2003) 131 FCR 511 at [62]
[89] See Minister for Immigration v Kamruzzaman (2009) 112 ALD 550 at [52]-[54]; Shahid v Minister for Immigration [2004] FCA 1412 at [12]
[90] See NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [53]-[54]
[91] See the authorities summarised in SZTEX v Minister for Immigration [2014] FCA 1269 at [19]
[92] CB KTF 321 [39]
[93] CB KTF 322 [41]-[42]
[94] CB KTF 316 [12]
[95] CB KTF 324 [49]
Underpinning Kartar’s arguments on Ground 1 appears to be an assumption that the Tribunal was bound to treat the description of the nominee’s role in the contract, position description and written submissions as definitive. However, the statutory language militates against that result. Regulation 5.19(4)(h)(ii)(D) requires an analysis of “the tasks to be performed in the position”, and that must necessarily be undertaken against the backdrop of all relevant circumstances, including oral evidence from relevant persons in the business which shed light on the functions that are and will be undertaken by the nominee in practice. A preference for evidence of that kind over other evidence (the statements in Kartar’s documents) does not constitute a failure to take into account a relevant consideration.[96]
[96] See Minister for Immigration v SZJSS (2010) 243 CLR 164 at [35]
Ground 2
By Ground 2, Kartar contends that the Tribunal took irrelevant considerations into account in arriving at its decision.
As to the claim that the Tribunal erroneously focused on whether the tasks of the nominated occupation would be those of a Retail Supervisor, instead of those of a Post Office Manager, the better reading of the Tribunal’s decision is that it did consider the tasks of a Post Office Manager (see [63] and [68] above), and engaged in a comparison between the nominee’s tasks and the tasks of a Retail Supervisor as a tool to help it answer the question before it. In Kamruzzaman at [67]-[69], Greenwood J found that this kind of reasoning process did not give rise to jurisdictional error in the Tribunal’s determination of whether an applicant had been employed in a “skilled occupation” specified by the Minister in an instrument in writing.
Kartar’s representative appeared to accept at the Tribunal hearing[97] that a “Retail Supervisor” charged with “supervis[ing] and coordinat[ing] the activities of retail sales workers”[98] does not engage in the tasks required of a manager. Particularly in circumstances where Mr Singh acknowledged that Mr Goyal “perform[ed] the tasks in the Retail Supervisor descriptor” and that there were no “additional tasks that may be done by the nominee”,[99] it was open for the Tribunal to use the occupation of Retail Supervisor as a point of contrast to demonstrate that the tasks to be performed by the nominee did not correspond with the tasks of an occupation specified in IMMI 17/058. Noting that the Tribunal’s reasons should not be read with an eye keenly attuned to error,[100] I do not infer that the Tribunal “limited” its analysis to a consideration of the Retail Supervisor position, or “exclusive[ly] focus[ed]” on that position.
[97] CB KTF 324 [48]
[98] CB KTF 323 [42]
[99] CB KTF 322 [41]
[100] See, eg, WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]
As to the complaint that the Tribunal “erroneously focused only on those tasks that are currently being performed by the nominee” (particular 3): this is not borne out by the Tribunal’s reasons, in which the Tribunal summarised the substance of the statutory requirement presently in issue[101] and stated that it needed to have regard to “the inherent duties and responsibilities attaching to the nominated position”.[102] In any event, Mr Goyal’s current responsibilities within the business were clearly relevant to a determination of whether regulation 5.19(4)(h)(ii)(D) was satisfied, not least because Kartar contended that Mr Goyal was already working in the business as a Post Office Manager.[103] Whilst the contract and position description were pieces of evidence bearing upon whether the “tasks to be performed” by the nominee corresponded with the tasks of a Post Office Manager, so too was evidence of current practice. It was open for the Tribunal to come to the view that the role as described in the oral evidence better represented the nature of the position.
[101] CB KTF 321 [38]
[102] CB 322 [42], emphasis added
[103] CB KTF 204
For similar reasons, the roles performed by Mr Singh and his father in the business were not irrelevant to the question before the Tribunal. They were capable of shedding light on the nature of the tasks to be performed by Mr Goyal in Kartar’s post office, which was a small business with no other employees.[104]
[104] CB KTF 316 [10], 324 [50]
For completeness, the Minister notes that the Tribunal appears to have applied IMMI 18/043 rather than IMMI 17/058.[105] However, that error was not material, and not jurisdictional,[106] because IMMI 18/043 and IMMI 17/058 were relevantly identical for the purposes of this proceeding: both specified the occupation of “Post Office Manager” (ANZSCO code 142115), and neither specified the occupation of “Retail Supervisor”. Accordingly, the application of IMMI 17/058 could not have led to the making of a different decision.
[105] see CB 321
[106] Hossain v Minister for Immigration (2018) 264 CLR 123 at [30]-[31], [37]; Shrestha v Minister for Immigration (2018) 359 ALR 22 at [10]
Ground 3
By Ground 3, Kartar contends that the Tribunal failed to give “proper, genuine and realistic consideration” to his claims that the tasks to be performed in the nominated position would be those of a Post Office Manager.
The phrase “proper, genuine and realistic consideration” can, if taken out of context, “encourage a slide into impermissible merits review”.[107] What is required is that the Tribunal engage in an “active intellectual process” in assessing the merits of the case.[108] As the Full Federal Court has held in a different context, a finding that a decision-maker has not engaged in an active intellectual process “will not lightly be made” and “must be supported by clear evidence, bearing in mind that the applicant for judicial review carries the onus of proof”.[109]
[107] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [32]
[108] See Carrascalao at [46]
[109] Carrascalao at [48]
In the present case, Kartar cannot satisfy the high threshold necessary to establish that the Tribunal failed to undertake an “active intellectual process” in identifying whether the tasks to be performed in the nominated position corresponded with the tasks of a Post Office Manager as described in ANZSCO. The Tribunal engaged with the substance of Kartar’s arguments and rejected them, finding that Mr Goyal’s functions and role in the nominated position were not managerial. For the reasons already given, the proper application of regulation 5.19(4)(h)(ii)(D) was not limited to a comparison between the description of the role in Kartar’s supporting materials and the description of the occupation in ANZSCO.
Mr Goyal’s grounds of review
The application for judicial review that has been brought by Mr Goyal is predicated on the single ground: that it was legally unreasonable, and thus a jurisdictional error, for the Tribunal to refuse to adjourn the proceedings until the related application for judicial review by Kartar was determined by this Court.
Section 363(1)(b) of the Migration Act expressly confers on the Tribunal a discretionary power to “adjourn the review from time to time”.
In Minister for Immigration v Li[110] the High Court unanimously held that the discretionary power to adjourn proceedings is one that must be exercised reasonably.
[110] (2013) 249 CLR 332
In Li, the visa applicant had sought a Skilled - Independent Overseas Student (Resident) visa. It was a requirement for the grant of this visa that the applicant obtain a skills assessment for the nominated occupation. The applicant had unsuccessfully sought a skills assessment from the Trades Recognition Authority (TRA) and had sought review of the unfavourable decision by the TRA. The migration agent acting for the applicant requested that the Tribunal “forbear from making any final decision regarding her review application until the outcome of her skills assessment application is finalised”. The Tribunal refused to grant the requested adjournment on the basis that it considered that “the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further”.
In this case, it is a criterion for the grant of the visa sought by Mr Goyal that the nomination of the position within the business of Kartar be approved. The registered migration agent acting for Mr Goyal requested that a decision on his application for merits review be deferred (adjourned) pending the determination of the proceedings in this Court. Mr Goyal notes that, should this Court determine that the Tribunal’s decision to affirm the refusal of the nomination was affected by jurisdictional error, and the matter is then remitted to the Tribunal for re-determination, and the nomination application is then be approved as the result of further hearings in the Tribunal, then in that event the sole basis for the decision to affirm the refusal of Mr Goyal’s visa application (the refusal of the nomination) would effectively be resolved.
Mr Goyal submits that the reason given by the Tribunal for refusing the adjournment sought by him is similar in nature to the erroneous reason given by the Tribunal in Li: here, the Tribunal’s explanation for refusing the adjournment went no further than the Tribunal’s statement to the effect that: “it is bound to deal with cases expeditiously and efficiently, as is required by the guidelines of good practice”.
Mr Goyal contends that the Tribunal did not recognise, or engage with the fact, that a successful resolution of the judicial review application, and further successful proceedings before the Tribunal and the Minister’s Department on remittal from this Court would effectively resolve the sole basis upon which the refusal of Mr Goyal’s visa application was predicated, and thus lead to a circumstance where the application for merits review in the Tribunal could be upheld.
The reasons of the plurality of the High Court in Li (Hayne, Kiefel and Bell JJ) at [80] are said to establish that concerns about a possible delay[111] in the resolution of a review application in the Tribunal are not sufficient, in and of themselves, to justify the refusal of a request for an adjournment. In that paragraph, the plurality stated:
In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated to that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such consideration would have to be weighed against the countervailing consideration of the purpose[112] of s 360 and Div. 5.
[111] In Li, the plurality observed, at [80], that reference to possible delay had not been explained by the Tribunal, and that, in any event, the only significant delay appeared to be attributable to the Tribunal, which had taken nine months to contact the review applicant, Ms Li, after the lodgement of her application for review with the Tribunal. Likewise, in the present case, there was a delay of more than a year between the time that Mr Goyal lodged his application for review (10 May 2017) and the date that he was first contacted by the Tribunal (on 27 June 2018)
[112] The plurality of the High Court stated at [83] of their reasons in Li that the purpose of s.360 “…is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”
Mr Goyal contends that the Tribunal’s decision record in the present case does not disclose that there was any “pressing need” for the review in Gaurav Goyal’s case to be concluded, nor any justification for the Tribunal’s refusal to adjourn the proceedings pending the determination of the related proceedings of Kartar in this Court.
Nor, in Mr Goyal’s submission, does the Tribunal’s decision disclose that the Tribunal conducted any weighing of the countervailing purpose of ensuring that he received a full and fair hearing as required under s.360 against the Tribunal’s purported interest in “efficiency” or “avoiding delay”.
I do not accept these contentions. It was not unreasonable for the Tribunal to decline to await the outcome of the judicial review application in the Kartar proceeding before dealing with Mr Goyal’s visa application. That necessarily entailed the Tribunal taking some risk, because, if the Kartar judicial review application succeeded, the Tribunal would have to reconsider the visa application in light of the nomination. There was, however, no disadvantage to Mr Goyal in the Tribunal taking the course it did, except that it provided a quicker outcome than waiting for the outcome of the judicial review application in the Kartar proceeding. The Tribunal advanced reasons for its refusal to delay the visa decision and those reasons were open to the Tribunal on the information before it.
I agree with the Minister’s submissions on this issue.
It is common ground that the Tribunal has a discretionary power under s.363(1)(b) of the Migration Act to adjourn its review of the delegate’s decision, and it is required to exercise that discretionary power reasonably.[113] Whether the exercise of a discretion can be characterised as legally unreasonable is “invariably fact dependent and requires a careful evaluation of the evidence”.[114] Legal unreasonableness can be a conclusion reached by a supervising court after identifying an underlying jurisdictional error in the decision-making process, or alternatively it can reflect an “outcome focused” assessment that a decision does not fall within a “range of possible, acceptable outcomes which are defensible in respect of fact and law”.[115] Where a decision-maker has given reasons, the supervising Court is concerned with determining whether there is an evident and intelligible justification within the decision-making process as reflected in those reasons.[116]
[113] Li at [63], [86], [93]-[95]
[114] Minister for Immigration v SZVFW (2018) 357 ALR 408 at [84]; see also Minister for Immigration v Singh (2014) 231 FCR 437 at [42]
[115] Singh at [44], citing Li
[116] Singh at [44]-[47]
Importantly, however, it is worth recalling that the courts will not lightly interfere with an exercise of statutory power involving an area of discretion, and the threshold of establishing legal unreasonableness is a stringent one.[117] Relevantly, in the case of adjournment applications, the Tribunal is not under an obligation to “afford every opportunity to an applicant for review to prevent his or her best possible case or improve upon the evidence”, and “may decide, in an appropriate case, that ‘enough is enough’”.[118] After all, the Tribunal is also under a duty to review decisions within a reasonable time,[119] and to pursue the object of providing a mechanism of review that is, among other things, “fair, just, economical, informal and quick”.[120]
[117] SZVFW at [10]-[11], [52], [86]
[118] Li at [82]
[119] Li at [102]
[120] Administrative Appeals Tribunal Act 1975 (Cth), s.2A
In the present case, it cannot be said that the Tribunal’s decision to refuse the requested adjournment fell outside the range of acceptable outcomes defensible in fact or law, or lacked an evident and intelligible justification. The Tribunal’s letter of 25 July 2018 indicated that the Tribunal had seriously considered Mr Goyal’s request. Properly understood, its reason for refusing the adjournment was that it was not willing to “speculate” about the likely result of Kartar’s judicial review application and, in those circumstances, it should deal with the applicant’s case “expeditiously and efficiently”. There is a sufficient justification for that reasoning given the circumstances in which Mr Goyal sought the deferral.
In his email requesting the adjournment, which replied to a request from the Tribunal for written comment on and responses to its letter of 27 June 2018,[121] Mr Goyal’s representative gave the Tribunal no information other than the fact that Kartar had applied, two days earlier, for “Federal circuit court appeal”. Whilst the representative attached the originating application, he did not make any arguments concerning the strength of the grounds or the likelihood of error being established; nor did he say anything about the likely timeframe for the Court’s review. Unlike the position in Li,[122] there was no suggestion on the material before the Tribunal that the pending process (here, the application in this Court) was likely to lead to satisfaction of the relevant statutory criterion. In effect, Mr Goyal submitted that the bare fact of Kartar’s judicial review application justified a deferral of the Tribunal’s review of his case. However, the countervailing considerations for the Tribunal were its obligations to complete its review in a reasonable time and to act economically and quickly in doing so. It was open for the Tribunal to conclude that the mere existence of a challenge to the decision in Kartar’s case, with no explanation of its merits or likely timeframe for adjudication, did not justify deferring the Tribunal’s completion of its duty of review in light of the facts as they stood at that time. These facts are distinguishable from Li.
[121] CB GG 50
[122] see at [21]
The circumstances of Mr Goyal’s case are broadly analogous to Huang & Anor v Minister for Home Affairs,[123] where this Court held that it was not legally unreasonable for the Tribunal to refuse various adjournment applications, relevantly, one of which relied on an application for judicial review of a nomination decision, and one of which relied upon a new nomination application which had been lodged by the applicant’s employer. In the Court’s view, the Tribunal’s decision showed that the Tribunal “recognised that it had a discretion to adjourn its review”. Judge Kelly agreed with the Tribunal’s assessment that the adjournment request was effectively an application for an “indefinite delay in conducting a merits review of [the] application”.[124] His Honour found that, given the ground on which the adjournment was sought, the applicant needed to “show that there were arguable grounds the application for judicial review and the further nomination application would be granted”, and had failed to do so.[125]
[123] [2019] FCCA 1764
[124] at [54]
[125] at [55]; see also Bhandari v Minister for Immigration [2017] FCA 272 at [25]-[27], [31]-[33]
Similarly, in Chhetri v Minister for Immigration,[126] the Tribunal had refused to defer its review of a visa decision in circumstances where the applicant’s employer had lodged a new nomination application which was still pending. In the Federal Court’s view, the decision showed that the Tribunal “recognised that it had a discretion to adjourn its review” and “gave due consideration to the question whether to exercise the discretion, but decided not to exercise it for reasons it gave”.[127] That decision was not unreasonable.[128]
[126] [2016] FCA 734
[127] at [23]
[128] at [15], [22]
In any event, as noted above, even if it was unreasonable for the Tribunal to refuse to adjourn the visa review, it would be futile to remit the Goyal proceeding to the Tribunal in the absence of an approved nomination. In short, remittal to the Tribunal could not produce any different outcome. The Tribunal would be bound to find that Mr Goyal does not meet the criteria for the grant of the visa he seeks.
Conclusion
Neither Kartar nor Mr Goyal have established that the decisions in issue of the Tribunal are affected by any jurisdictional error. The respective decisions are therefore privative clause decisions and the judicial review applications must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 March 2020
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