Kaur v Minister for Immigration and Border Protection
[2016] FCCA 1730
•20 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1730 |
| Catchwords: MIGRATION – Application for Temporary Business Entry (Class UC) visa – review of decision of Migration Review Tribunal – whether the Tribunal denied the applicant procedural fairness by failing to review the delegate’s decision to refuse the nomination of the application – whether the Tribunal’s decision was unreasonable in failing to adjourn the review to allow the applicant to follow up with the nominee – no jurisdictional error – application dismissed. |
| Legislation: Education Services for Overseas Students Act2000 (Cth) Federal Circuit Court Rules 2001 (Cth), pt.12 Migration Regulations (Cth), s.31, regs.2.01, 2.02, 2.03, 2.72, 4.02, 4.10, sch.1 cl.1223A(4), sch.2 cll.457.223, 820.211(2)(d), pt.457 |
| Cases cited: Ahmad v Minister for Immigration & Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 Jadwan Pty Ltd v Department of Health & Aged Care (2003) 145 FCR 1; [2003] FCAFC 288 Kabir v Minister for Immigration & Citizenship (2010) 118 ALD 513; [2010] FCA 1164 Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 Minister for Immigration & Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 Prodduturi v Minister for Immigration & Border Protection (2015) 144 ALD 243; [2015] FCAFC 5 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Sandhu v Minister for Immigration & Border Protection [2016] FCA 285 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZUWX v Minister for Immigration & Border Protection [2016] FCAFC 77 Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213; [2015] HCA 51 |
| Applicant: | HARDEEP KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 49 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 5 November 2015 & 28 April 2016 |
| Date of Last Submission: | 26 May 2016 |
| Delivered at: | Sydney & Perth |
| Delivered on: | 20 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Blades |
| Counsel for the First Respondent: | Mr P Herzfeld |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 49 of 2015
| HARDEEP KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal[1] to affirm a decision to refuse to grant her a Temporary Business Entry (Class UC) (Subclass 457) visa. In order to be granted the visa, the applicant had to be sponsored and nominated for an occupation by her prospective employer, Radar Corporation Pty Limited (“Radar”), and that nomination had to be approved by the Minister.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The sponsor duly applied to the Minister for approval of its nomination of the applicant. On 9 October 2014, as part of the approval process, Radar was asked by a delegate of the Minister to provide certain information by 31 October 2015; however, before it did so, another delegate of the Minister, thinking that the information was to be provided by 31 October 2014, made a decision refusing to approve the nomination. That decision affected the applicant because it meant that she could not satisfy the criteria for the grant of the visa for which she had applied. Accordingly, the same delegate refused to grant the applicant a subclass 457 visa and, on review, the Migration Review Tribunal affirmed the delegate’s decision.
At the hearing of this matter on 5 November 2015, I raised the question whether the mistake about the date in the request for information on 9 October 2014 to Radar had any effect on the exercise of the Tribunal’s jurisdiction. As the applicant appeared unrepresented, and the issues were not straightforward, I referred the matter for legal assistance. Mr Blades of counsel agreed to accept the referral and appeared at the resumed hearing in Sydney on 28 April 2016 by video-link from Perth. At the conclusion of that hearing, I gave the parties leave to file further submissions concerning the potential application of Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 and Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213; [2015] HCA 51 (“Wei”) to the issues in the proceedings.
The Court is grateful to Mr Blades for his acceptance of its referral and is grateful for his assistance and that of counsel for the Minister in their helpful submissions.
For the reasons that follow, the application will be dismissed.
The resolution of the issues that arise first require an understanding of the factual and statutory background to the Tribunal’s decision.
Factual background
Applicant’s visa application
The applicant is a citizen of India. After spending some time in Australia as a student, she wished to remain here to work for Radar, located in Western Australia. On 28 June 2013 Radar applied for approval of a nomination for the position of “Records Manager” in relation to the applicant.
On 11 April 2014 the applicant lodged an application for a Temporary Business Entry (Class UC) (Subclass 457) visa. In her application the applicant included a reference to the nomination approval application and gave details of her sponsoring employer, Radar, and the contract of employment with Radar for the position of Records Manager.
On 15 April 2014 the applicant’s agent made written submissions to the Department of Immigration in support of the visa application.
On 15 May 2014 a delegate of the Minister, Ms Brown, sent an email to the applicant’s agent requesting further information to support the application and giving 28 days for a response. There was no request for any information concerning the application by Radar for approval of its nomination. The agent responded by email dated 12 June 2014, providing a number of documents and asking for a further 7 days to provide a letter from Radar, if that was required.
On 23 June 2014 Ms Brown made a decision to refuse to grant the applicant a visa because her qualifications did not meet the skill requirements for the visa. The delegate’s reasoning was that the Bachelor of Arts awarded to the applicant by Punjabi University was not the equivalent of a Bachelor Degree or higher because the subjects (English, Punjabi, Religious Studies, History and Punjabi Literature) were generic in nature and not at the Australian Tertiary level. Minds might well differ about that conclusion but there is no, and could not be[2] any issue about that in these proceedings.
[2] This Court has no jurisdiction in respect of the delegate’s decision because it is a primary decision: Migration Act 1958 (Cth) sub-s.476(2)(a).
On 4 July 2014 the applicant applied to the Tribunal for review of that decision.
Nothing appears to have happened in relation to the applicant’s application for review until 22 December 2014 when the applicant was invited to attend a hearing; however, in the meantime, a step was taken by the Department in connection with Radar’s application for approval of its nomination in respect of the applicant.
Radar’s application for approval
On 9 October 2014 another delegate of the Minister, Mr Moretta wrote to Radar asking for information and documentation to support its application for approval of the nomination. At the end of the letter the delegate wrote:
…
Please respond by no later than 31/10/2015
(Emphasis added)
On 22 December 2014 Ms Brown, again as delegate of the Minister, made a decision refusing to approve the nomination of an occupation by Radar. In her reasons for decision, Ms Brown referred to the request for additional information in the letter of 9 October 2014 and wrote:
The applicant was required to provide this evidence to the department by 31/10/2014. However, to date, the applicant has not responded.
(Emphasis added)
There is no suggestion that Ms Brown put Radar, or anyone else, on notice that she was going to make a decision in 2014. Indeed, it is clear from her reasons for decision that she did not think that she had to because she (wrongly) thought that a response to the request for information was due by the end of October 2014.
There is no question in my mind that it was unfair that the decision was made in 2014 without further notice to Radar. That step denied Radar the opportunity to provide the information which had been requested and the absence of which proved fatal to its application: see generally Minister for Immigration & Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40. Although it is not essential to that conclusion, there was evidence before the Court that the applicant’s agent had not in fact responded to the request because the letter only required a response by October 2015. That evidence is set out further below.
One of the issues in these proceedings is whether this unfairness constituted jurisdictional error and, if so, whether there were any consequences of that error in relation to the Tribunal’s determination of the applicant’s application for review of the decision not to grant her a visa.
As will be seen, Radar had the right to seek merits review of the delegate’s decision. An application for review had to be made within 21 days of receipt of notice of the decision. The decision letter was dated 22 December 2014 and addressed to Radar at a postal address in Western Australia. Assuming that it was sent within 3 days of that date, and taking into account the public holidays in Western Australia on 25 and 26 December 2014 and 1 January 2015, it was taken to have been received by Radar on 5 January 2015: s.494C(4) Migration Act 1958 (Cth). That meant that Radar had until the end of Tuesday 27 January 2015 to apply for review of the delegate’s decision.
It is possible that, in fact, the applicant’s agent received notice of the decision on 24 December 2014. In evidence, there is an email from the agent to the applicant about the decision that appears to bear that date. However, the date is not in the form usually seen in emails, that is, in the section produced by email software that shows the sender, addressee, date and time and subject. Rather, it is typed. The text of that email is set out at paragraph [22] below.
Review of Tribunal’s decision to refuse to grant the applicant a visa
Nevertheless, on 22 December 2014, the Tribunal wrote to the applicant inviting her to attend a hearing to be held on 16 January 2015 at 12:00pm Queensland time.
As I have noted, the applicant’s agent wrote to the applicant by email. In it he stated (without alteration):
I had received an email from the Case officer on 9 October which required a response by 31 October 2015. I did not reply because the date was next year but now she has refused the nomination. Please see attached refusal decision.
It seems to me that unusual things have happened in this case. Firstly, visa application is usually considered after the nomination application but in your case, it has been other way round because the case officer considered the visa application without first considering the nomination application. Now despite having given time until 31 October 2015, the nomination application has been refused on the basis that the no reply was refused which is technically wrong because the time has not passed. Anyway, one option is to back to the Case Officer and remind her that it is not correct for her to say that no reply was given within the permitted time because the time to reply had not passed. Second option is to appeal the decision to the MRT and argue that the nomination refusal decision is wrong. If you wish to appeal then it must be lodged by 18 January 2015, and you will have to pay the appeal fee of $1,604 and my fees of $1,100.
Your visa refusal appeal is set down for hearing on 16 January 2015 at 12pm in Brisbane. I am not sure how MRT could hear the appeal without the nomination application issue being resolved. Of course, the Tribunal can say that as there is no nomination approval, visa cannot be granted. It is going to be complicated and difficult. You will have to think about these things and let me know what you wish to do.
My doubt about the date of the email is strengthened by the applicant’s evidence that she was told about the Tribunal hearing only on the day of the hearing itself.
In any event, some of the assertions in the email are contradicted by a letter sent by the agent to the Tribunal on 6 January 2015. After referring to the Tribunal’s letter of 22 December 2014, the agent wrote (without alteration):
Our client has instructed us to bring to your attention the following issues:
1.The applicant now lives in Western Australia, and therefore, it would be very convenient to attend the hearing in Queensland. She requests that the matter be referred to MRT Western Australia.
2.The visa application was refused before the application for nomination was considered by the Department of immigration. The nomination application was refused by the Department on 22 December 2014 on the basis that the issue raised previously in their request letter was not responded to.
3.The issues raised by the Department’s letter in relation to the Nomination application were not responded to because the owner has sold the business to someone else and there has been some dispute between the owner and the directors. This has affected the visa application’s situation in that she has no employment with the nominating business.
There are three important matters that arise from this email:
i)First, contrary to what the agent told the applicant, the reason why Radar did not respond to the request by the delegate for further information was not that the date for response was in 2015 but, rather, that Radar had sold its business;
ii)secondly, contrary to her evidence, it is clear that the applicant was aware of the Tribunal’s hearing well before the date scheduled for the hearing. This suggests, and I find, that the agent had received the letter notifying the decision to refuse to approve Radar’s nomination by at least 24 December 2014.
iii)thirdly, by 6 January 2014 the applicant was no longer employed by Radar or in the “nominating business”. I will deal with the consequences of that fact later in these reasons.
Tribunal hearing
The Tribunal appears not to have received the letter. The applicant’s agent called the Tribunal on 15 January 2015 inquiring about the letter and, on the suggestion of a Tribunal officer, sent another copy to the Tribunal by email on the same day asking that it be brought urgently to the attention of the presiding member.
On the morning of the hearing, an officer of the Tribunal called the applicant’s agent and left a message that the hearing would proceed by telephone. The agent returned that call and was told, that the hearing was only scheduled for 30 minutes. In another telephone call about an hour later, the agent provided the applicant’s mobile telephone number to the Tribunal and indicated that he would not be attending the hearing. A little under one hour later, the applicant spoke to an officer of the Tribunal, was told that the hearing would proceed by telephone, and provided her mobile telephone number.
The hearing commenced at 11:58pm Queensland time and finished at 12:13pm. The only substantive evidence of what occurred at the time appears in the following paragraph in the Tribunal’s reasons for decision:
[10]At the hearing, the applicant stated that it was not her fault she was no longer employed with the nominating business. However, it is clear from the evidence provided that the requirements of cl.457.223(4)(a) are not met.
On 16 January 2015 the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a Temporary Business Entry (Class UC) (subclass 457) visa. As is apparent from the paragraph set out immediately above, the reason for the decision was that sub-cl.457.223(4)(a) was not satisfied. The basis for that was the decision by the delegate on 22 December 2014 to refuse to approve the nomination application by Radar.
Statutory context
Relevant provisions of the Migration Act
The Migration Act provides for a system relating to the right of non-citizens to come to and remain in Australia that is tightly prescriptive with elements that are intricately detailed and interconnected.
The Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia: s.29. Subject to irrelevant exceptions, a non-citizen must not travel to Australia without a visa that is in effect (s.42). A non-citizen who is in Australia without such a visa is an unlawful non-citizen (s.14) and is liable to be detained (s.189) and removed from Australia (s.198).
A non-citizen who wants a visa must apply for a visa of a particular class: s.45. Classes of visas are to be prescribed (s.31(1)) and the criteria for a visa or visas of a specified class may also be prescribed (s.31(3)). The relevant prescriptions are found in the Migration Regulations 1994 (Cth).
Before turning to the Regulations, it is necessary to note that the Minister must consider a valid application for a visa (s.47) and, having done so, must either grant the visa or refuse to grant the visa: s.65. It is necessary to set out the relevant parts of that provision in light of its importance to the issues in the proceedings.
Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister:
…
(a)if satisfied that:
…
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
…
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.
Thus, the criteria for a visa play an essential role in the visa system. That noted, it is convenient to turn to the Regulations.
Relevant provisions of the Migration Regulations
Regulation 2.01 prescribes classes of visas for the purposes of s.31 of the Act and reg.2.02 prescribes subclasses of visas. Regulation 2.03 provides that, for the purposes of s.31(3), the prescribed criteria for the grant to a person of a visa of a particular class include, relevantly, the primary criteria set out in a relevant part of sch.2 to the Regulations.
In this case, the applicant applied for a Temporary Business Entry (Class UC) visa. At the time of the visa application, the only subclass prescribed for that class of visa was subclass 457 (Temporary Work) (Skilled): sch.1, cl.1223A(4) of the Regulations. The criteria for that subclass were set out in pt.457 in sch.2 to the Regulations.
Clause 457.223(1) required that, at the time of the decision, the applicant meet the requirements of sub-cll.(2) or (4). The applicant sought to meet the requirements of sub-cl.(4). That subclause relevantly provided:
Standard business sponsorship
(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;
…
Section 140GB is found in div.3A of pt.2 of the Act. The objects of that Division include the provision of a framework for a temporary sponsored work visa program in order to address genuine skills shortages: s.140AA(a). Section 140GB provides:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b)in any case--the prescribed criteria are satisfied.
…
(3)The regulations may establish a process for the Minister to approve an approved sponsor's nomination.
(4)Different criteria and different processes may be prescribed for:
(a)different kinds of visa (however described); and
(b)different classes in relation to which a person may be approved as a sponsor.
The criteria prescribed for the purposes of s.140GB(2) are contained in reg.2.72 of the Regulations. There are a large number of criteria in that regulation. It is only necessary to set out the following:
…
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
…
(10)If the person is a standard business sponsor – the Minister is satisfied that:
…
(f)the position associated with the nominated occupation is genuine; and
…
These provisions reveal a close and necessary connection between an application by a visa applicant’s sponsor for approval of a nomination and the entitlement of the visa applicant to the grant of a visa. The evolution and complexity of the provisions giving rise to that connection are set out in the decision of the Full Court of the Federal Court in Ahmad v Minister for Immigration & Border Protection (2015) 237 FCR 365; [2015] FCAFC 182. It will be necessary to return to consider the effect of the connection between the application for approval of nomination and the visa application.
Certain decisions made by the Minister or his or her delegate are subject to merits review by a Tribunal. At the relevant time (22 December 2014), a decision to refuse to approve the nomination of a position was reviewable by the Migration Review Tribunal under pt.5 of the Act: s.338(9) and sub-reg.4.02(4)(d) of the Regulations. However, any application for review of such a decision had to be made 21 days after notice of the decision (sub-s.347(1)(b)(iii) and sub-reg.4.10(1)(d)) and could only be made by the sponsor: sub-s.347(2)(d) and sub-reg.4.02(5)(c).
Importantly, the Tribunal could only review a decision if an application for review was properly made under s.347. That is to say, for example, the Tribunal simply had no power to review a decision to refuse to approve a nomination if the application was made by the visa applicant rather than by the sponsor.
On the other hand, the visa applicant was able to apply to the Tribunal for review of a decision to refuse to grant her a visa: sub-s.347(2)(a). As an aside, the applicant was fortunate that the decision to refuse her a visa was made before the decision to refuse to approve the nomination by her sponsor. Had it been otherwise, the Tribunal may not have had any jurisdiction to review the visa refusal decision: sub-s.338(2)(d).
Consideration
The ground in the application filed by the applicant was that the Tribunal did not give the applicant enough time to consider her documents or to explain her situation. The amended application contained no grounds. As I have explained, the applicant was ultimately represented by Mr Blades pursuant to a referral under Part 12 of the Federal Circuit Court Rules 2001 (Cth). In his submissions, Mr Blades did not rely on the ground in the application but instead raised the following grounds:
a)In circumstances where the delegate’s decision to refuse to approve the nomination of the application (“nomination approval decision”) was affected by unfairness, the Tribunal denied the applicant procedural fairness by failing to review or consider the approval nomination decision; and
b)The Tribunal acted unreasonably by failing to adjourn the review so that the applicant could take steps to prompt Radar to lodge a review application in respect of the nomination approval decision.
The Minister made four submissions in response of these grounds:
(i)The Court could not inquire into the validity of the nomination approval decision;
(ii)the common law obligations of procedural fairness were not owed to the applicant in connection with that decision;
(iii)any denial of procedural fairness did not invalidate the nomination approval decision; and
(iv)any invalidity of the approval nomination decision did not affect the visa refusal decision.
The Minister’s first two submissions can be dealt with briefly.
The first point is that the Court cannot determine whether there is any jurisdictional error in the nomination approval decision because it was a primary decision and the Court has no jurisdiction in respect of a primary decision. While I accept the premises of the argument, I reject the conclusion. The nomination approval decision was reviewable under pt.5 of the Act and so was a primary decision. For that reason, pursuant to sub-s.476(2)(a) of the Act, the Court has no jurisdiction in respect of it: see Prodduturi v Minister for Immigration & Border Protection (2015) 144 ALD 243; [2015] FCAFC 5. However, that is not the same as saying that the Court cannot inquire into the decision at all and must proceed on the basis that it was valid. The exclusion of primary decisions effected by sub-s.476(2)(a) is narrower than that. It means that the Court cannot entertain any application for constitutional relief in respect of that decision. Here, no such relief is sought. The relief sought is in respect of the decision of the Tribunal. There is no question that the Court has jurisdiction to decide the question whether such relief ought to be granted. The decision relied on by the Minister (Sandhu v Minister for Immigration & Border Protection [2016] FCA 285) says nothing different: see [14].
The Minister’s second point was that no common law duty of procedural fairness was owed to the applicant in respect of the nomination approval decision. Whether or not procedural fairness was owed to the applicant is not, in my view, critical to the disposition of this matter. One of the critical questions is whether the unfairness that inhered in the procedure adopted by the delegate in respect of that decision affected the exercise of the Tribunal’s power. For that reason, it is unnecessary to come to a concluded view about this submission. However, I will set out my views in case I am wrong about the precise nature of the critical question.
The basis of the Minister’s argument was that s.51A of the Act provides that sub-div.AB of div.3 of pt.2 of the Act are taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with. The problem with that submission is that nothing in that subdivision deals with any obligation owed to the applicant and, in any event, there is nothing dealing with the circumstances that arose here, namely, that a particular procedure was adopted that denied Radar the opportunity of providing information requested by the delegate.
In his second set of written submissions[3] filed on 5 February 2016, the Minister argued that, “at common law, where a decision of a public body affects the interests of more than one individual, procedural fairness does not normally require that each person be afforded procedural fairness.” While that statement may be accepted at that level of generality, it does not address the circumstances of this case where the interests of a visa applicant are immediately and directly affected by a decision to refuse to approve a nomination. At the hearing counsel for the Minister accepted that much, and properly conceded that the effect that the nomination approval decision would have on the applicant was normally sufficient to engage the common law principles of procedural fairness. In my view, the applicant was owed, but was denied, procedural fairness in connection with the nomination approval decision. The critical question, as I have said, is what impact, if any, that had on the Tribunal’s decision to affirm the decision to refuse the applicant a visa.
[3] There were three written submissions by the Minister: the first prepared when the applicant was unrepresented; the second after the matter had been referred for legal assistance; and the third prepared pursuant to leave granted at the resumed hearing.
At this point, the Minister addressed the question of whether the unfairness in the nomination approval decision led to the invalidity of that decision. In that respect, he correctly submitted that the consequence of an error depended on the particular statute as well as the context: Jadwan Pty Ltd v Department of Health & Aged Care (2003) 145 FCR 1; [2003] FCAFC 288 at 16 [42] (Gray and Downes JJ) referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 388-389; SZUWX v Minister for Immigration & Border Protection [2016] FCAFC 77 at [21] (Allsop CJ).
However, as Mr Blades expressly disavowed any submission to the effect that the nomination approval decision was invalid and had no consequence, it is unnecessary to examine that issue any further. In my view, he was correct to do so. The real issue in these proceedings was not the effect of any unfairness on the nomination approval decision, but its effect on the Tribunal’s decision. Whether or not the nomination approval decision was a nullity, or had or did not have some other consequence, the plain fact is that, as at the time of the Tribunal’s decision, there had been no approval of the nomination by Radar. This is not a case where the existence of a decision was an essential precondition to, or a relevant consideration, in the consideration of the grant, refusal or cancellation of a visa: cf. the reference in sub-cl.820.211(2)(d) of sch.2 to the Regulations to a person being the “holder of a substantive visa.”
Applicant’s arguments
At this point it is necessary to return to the arguments relied on by the applicant. The first of these is that, in light of the unfairness in the nomination approval decision, the Tribunal denied the applicant procedural fairness by failing to review or consider the approval nomination decision. This argument suffers from a number of difficulties.
The ultimate question must be what opportunity was denied to the applicant, or put another way, what practical unfairness was there? That question is not answered by reference to the outcome, namely, that the applicant’s review application was unsuccessful. Rather, there must be some anterior matter that hindered her right to be heard in respect of the review.
The first point is that the Tribunal had no power to review the nomination approval decision. As I have noted above, it only had power to review a decision when an application had been properly made and only Radar could properly make such an application.
The second point is that the applicant was, by virtue of her agent’s email of 24 December 2014, aware of the following matters: the nomination approval decision; the fact that it was made before information was given to the Department by Radar; the mistake by the delegate in respect of the date; the availability of review of that decision and the probable consequence of that decision being that she would be unlikely to succeed on review of the decision not to grant her a visa. In light of that knowledge, the applicant had the opportunity to take steps to see if she could remedy any unfairness in the nomination approval decision including, if she so wished, to raise it with the Tribunal and to seek, for example, an adjournment of its review of the refusal decision. The fact that she did not take any of those steps does not mean that there was any unfairness. If, on the other hand, the applicant did take steps to have Radar lodge an application for review of the nomination approval decision, the fact that it did not, did not make the procedure before the Tribunal unfair.
In short, the applicant lost no opportunity to present her case on the review or to otherwise overcome the unfairness that arose in the nomination approval decision. For that reason, the applicant’s first argument must fail.
The applicant’s second argument was that Tribunal acted unreasonably by failing to adjourn the review so that the applicant could take steps to prompt Radar to lodge a review application in respect of the nomination approval decision.
In support of the second issue, the applicant relied on Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (“Li”) and the judgment of Nettle J in Wei.
In Li an applicant on review sought an adjournment of a review by the Tribunal in order to await the outcome the review of a skills assessment which, for reasons articulated by her agent, was erroneous. The outcome of that review was critical because the applicant would otherwise have not satisfied the criteria for the visa. The Tribunal refused the adjournment and, inevitably, the decision to refuse the applicant a visa was affirmed. The High Court found that that was an unreasonable exercise of the Tribunal’s power. That conclusion was unanimous albeit reached in slightly different ways in each of the three judgments. It was described as arbitrary, capricious or devoid of common sense (French CJ at [28]), lacking an evident and intelligible justification (Hayne, Kiefel and Bell JJ at [76]) and a decision that no reasonable Tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have made (Gageler J at [124]).
In Wei, the plaintiff’s student visa was cancelled by a delegate of the Minister because he had failed to comply with a condition of that visa. That condition was that he be enrolled in a course of education provided by an institution registered under the Education Services for Overseas Students Act2000 (Cth) ("ESOS Act"). In fact, the applicant was enrolled in such a course; however, contrary to its duty under the ESOS Act and Regulations, the education provider had not given evidence of that to the relevant government department and so the enrolment was not recorded in the electronic database kept by that department (PRISMS[4]). A delegate of the Minister relied on the incomplete database to find that the applicant was not enrolled and so cancelled the applicant’s visa. The applicant only became aware of that decision some time later and his application for merits review of the decision was too late. The applicant applied successfully to the High Court for judicial review of the decision.
[4] Provider Registration and International Students Management System.
Again, there were different reasons given for that judgment. Justices Gageler and Keane in joint reasons found, at [32], that the education provider’s duty to upload onto PRISMS confirmation of enrolment of a person holding a student visa was an imperative duty, in the sense that material non-compliance with the requirement will result in an invalid exercise of the power to cancel a visa conferred by sub-s.116(1)(b) of the Migration Act. The basis for that conclusion was that the Migration Act and ESOS Act constituted an integrated scheme and that the injustice that flowed from the failure by the education provider to comply with its duty under it was manifest. Further, the obligation to notify the applicant of the decision to cancel and the availability of merits review did nothing to alleviate that injustice.
In separate reasons, Nettle J found, at [51], that the delegate had fallen into error, not for the reasons given in the joint judgment, but because of the failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertained. This was because the delegate was put on inquiry by the return of a letter sent to the applicant and all that it would have taken to check the real situation was a telephone call to the relevant education provider.
The applicant relied on the reasons of Nettle J.
In my view, the facts of this case do not establish that the Tribunal’s exercise of power was unreasonable in any of the senses described in Li or the reasons of Nettle J in Wei. Importantly, not only was the Tribunal not on notice that the delegate had made a mistake about the date by which Radar was asked to provide information in support of its application, but it was positively told of the reason for Radar’s failure to provide the information. The agent’s letter to the Tribunal of 6 January 2015 stated that this was:
… because the owner has sold the business to someone else and there has been some dispute between the owner and the directors. This has affected the visa application’s [sic] situation in that she has no employment with the nominating business.
The only other way in which the Tribunal could have found out about the mistake about the date was from the Department’s files in relation to the nomination approval decision. It did not have them because it was not reviewing that decision and the applicant took no steps to ensure that they were before the Tribunal. Thus, it was not put on inquiry about any matter which it could then have verified by inquiry.
Further, the applicant never requested an adjournment to enable her to do something about the nomination approval decision.
Bearing in mind that the applicant was represented by a migration agent who had provided her with advice about the nomination approval decision and the steps that could be taken in light of it, the failure by the Tribunal either to make any of its own inquiries or to adjourn the review was not a decision or other exercise of power that was unreasonable. It could not be described as capricious, without reason, or without an apparent or evident and intelligible justification. It was not a decision that no reasonable tribunal would have made.
For those reasons, the arguments relied on by the applicant fail.
Application of the reasons of Gageler and Keane JJ in Wei to the facts
That said, it is worth addressing the question whether the reasons of Gageler and Keane JJ in Wei have any application to the facts of this case.
In my view it is at least arguable that the duty of the Minister (or his or her delegates) to exercise the power to refuse to approve the nomination of an occupation in relation to an applicant for a subclass 457 visa is so closely connected to the duty under s.65 to refuse to grant that visa if not satisfied that the criteria for that visa are not satisfied that it constitutes an inviolable duty, the breach of which will infect the decision to refuse to grant a visa. It may be that there are different issues in question; however, subject to delegation, the sole repository under the Act of the power to grant a visa is the Minister. If the effect of a decision to refuse approval of a nomination is that a person may not be entitled to the grant of another visa, the fact finding relevant to the application for that other visa is, subject to one matter, almost inevitably diverted by a legally flawed decision to refuse approval.
The proviso in the last paragraph is the availability of review. It may be of course that, if an application for review is made, the Tribunal will be able to rectify the error by noticing the flawed basis for the nomination approval decision and putting it to one side. In Wei, the availability of review was not sufficient to overcome the injustice. The applicant was not aware of the mistake by the education provider until it was too late. The same might be argued here: the only person entitled to bring an application for review of the nomination approval decision was Radar.
However, there are two reasons for which the unfairness in this case did not infect the Tribunal’s decision with jurisdictional error. The first is that the applicant was well aware of the unfairness involved in the nomination approval decision. She was told of it within days of that decision and given advice about what to do about it. Unlike the visa holder in Wei, the applicant had some means of addressing the unfairness, even if she could not apply for merits review of that decision herself.
The second reason is an alternative to the first. It is that it was inevitable that the Tribunal affirm the decision to refuse to grant the applicant a visa because she was not employed by Radar at the time of the decision. This state of affairs was not only set out in the agent’s letter of 6 January 2015 but also stated by the applicant at the hearing on 16 January 2015.
One of the criteria for the grant of the subclass 457 visa was sub-cl.457.223(4)(ba) which relevantly provided:
(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;
…
As there was no specification as referred to in sub-cl.(ba)(i), the applicant had to satisfy sub-cl.(ba)(ii)(A), but did not. For that reason, the ultimate decision was inevitable and any other error, including the unfairness in the nomination approval decision, was not material to it and so was not jurisdictional error.
This reasoning is also relied on by the Minister to argue that, even if there were jurisdictional error, the Court should refuse relief in the exercise of discretion: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (“Aala”) at [57] – [58]; Kabir v Minister for Immigration & Citizenship (2010) 118 ALD 513; [2010] FCA 1164 (“Kabir”) at [27], [52]. That is probably the preferable way of viewing the consequence of the fact that the applicant was no longer employed at the time of the Tribunal’s decision.
This argument prompted some debate between the parties as to whether the issue of discretion is to be judged on a forward-looking or backward-looking basis. The two bases arise from a difference of expression of the conclusion for the judgment in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (“Stead”) at 145 (forward-looking) and 147 (backward-looking). Justice Lindgren J discussed the potential differences between those bases in Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 at 164 – 166 and concluded that the backward-looking test best encapsulated the Court’s reasoning in Stead. In the same case Merkel J preferred the forward-looking test: 174-182. The Full Court in Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 at 192-195 (Besanko J, Moore and Buchanan JJ agreeing) applied a forward looking test.
In my view, there is no clear divide between the two possible bases for the refusal of relief. Stead is authority for the proposition that relief may be refused where a denial of procedural fairness could not possibly have produced a different result. That is consistent with later authority including Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 cited with approval in Aala at [58] (Gummow and Gaudron JJ) and SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). As revealed by the decision of Siopis J in Kabir, the fact that a forward-looking approach was taken by the Full Court in Lee does not prevent this Court from exercising its discretion on another basis.
Conclusion
I conclude as follows: first, there was no jurisdictional error in the Tribunal’s decision; and secondly, even if there were, I would refuse the relief sought in the exercise of my discretion. For those reasons, the application must be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 20 July 2016
4
23
5