Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 480
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 480
File number(s): ADG 113 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 16 June 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of India – no approved nomination by a standard business sponsor – no challenge by sponsor to nomination refusal – no response to invitation to comment – no power to permit appearance – affirmation of refusal of temporary business visa – whether Administrative Appeals Tribunal ought to have requested further documents – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 140GB, 359A, 359C, 360, 363A, 474, 476, 479, 486C
Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) regs 2.08, 2.72, 2.75, 4.35, Sch 2 cll 457.223, 457.321
Cases cited: Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 696
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 8 November 2022 Date of hearing: 8 November 2022 Place: Perth First Applicant: In person via CISCO Webex with the assistance of an interpreter and appearing for and on behalf of the second, third and fourth applicants Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 113 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVINDER KAUR
First Applicant
AMANDEEP SINGH
Second Applicant
KAUR SEHAJDEEP (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 1 April 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application filed on 1 April 2019 by the applicant, Ms Ravinder Kaur (“Ms Kaur”), for judicial review (“Judicial Review Application”). The Judicial Review Application was made pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant Ms Kaur a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (“Temporary Business Visa”).
The second, third and fourth applicants in the Judicial Review Application are Mr Amandeep Singh, who is Ms Kaur’s husband, and Ms Sehajdeep Kaur and Ms Jannat, who are Ms Kaur’s children. The Court notes that Ms Kaur is the litigation guardian of Ms Sehajdeep Kaur who is the subject of a related judicial review application in matter number ADG198/2022 (“Related Judicial Review Application”). Except where it is otherwise necessary, the Court will only refer to Ms Kaur in the remainder of these Reasons for Judgment, as, for the purposes of this Judicial Review Application, the visa status of Ms Kaur’s husband and children are dependent upon the grant or refusal of the Temporary Business Visa. The Court notes that the Judicial Review Application and the Related Judicial Review Application relate to two separate applications to this Court arising from two separate Tribunal Decisions.
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 46-51. An affidavit affirmed by Ms Kaur on 1 April 2019 (“Ms Kaur’s Affidavit”) was tendered and read into evidence, subject to relevance. Relevantly, Ms Kaur’s Affidavit annexed a copy of the Tribunal Decision and the Delegate’s Decision, but otherwise nothing turns on Ms Kaur’s Affidavit.
BACKGROUND
The relevant background to the matter is as follows:
(a)Ms Kaur is a citizen of India and applied for a Temporary Business Visa on 20 September 2016: CB 1 and 15;
(b)on 1 May 2017 the Delegate refused to grant Ms Kaur a Temporary Business Visa on the basis that Ms Kaur did not meet the requirements set out in cl 457.321 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 24-27;
(c)on 22 May 2017 Ms Kaur applied to the Tribunal for review of the Delegate’s Decision: CB 28-30;
(d)on 21 September 2018 the Tribunal sent correspondence to Ms Kaur’s migration agent: CB 36-38, advising of changes to the Temporary Business Visa scheme and stating that:
(i)on 18 March 2018 the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (“Migration Amendment Regulations”) were introduced;
(ii)among other things, the Migration Amendment Regulations repealed and replaced reg 2.72 of the Migration Regulations which set out the criteria for nominations relating to subclass 457 visa applications and further repealed the subclass 457 visa;
(iii)the changes made by the Migration Amendment Regulations meant that, in order to be granted a Temporary Business Visa, it was now a requirement for Ms Kaur to demonstrate that she was the subject of an approved nomination by a standard business sponsor in accordance with cl 457.223(4) of Sch 2 to the Migration Regulations;
(iv)a review of Ms Kaur’s file suggested that Ms Kaur was currently not the subject of an approved nomination by a standard business sponsor, and that a new application for approval of a nomination in support of Ms Kaur’s application for a Temporary Business Visa could no longer be made, and that without an approved nomination Ms Kaur would not meet the essential criteria for the grant of a Temporary Business Visa, which would result in the Delegate’s Decision being affirmed;
(v)if, however, Ms Kaur was the subject of an approved nomination for a Temporary Business Visa, Ms Kaur was asked to provide the Tribunal with evidence of the approved nomination, but alternatively, if Ms Kaur’s circumstances had changed and Ms Kaur no longer wished to continue with her application for review to the Tribunal, Ms Kaur could complete an enclosed withdrawal form; and
(vi)the Tribunal requested a response to its correspondence by 5 October 2018; and
(e)on 12 December 2018 the Tribunal requested that Ms Kaur comment on and provide information and set out particulars of the information sought in relation to her not having an approved nomination and not meeting the criteria under cl 457.223(4)(a)(i) of Sch 2 to the Migration Regulations: CB 41-42.
TRIBUNAL DECISION
On 25 February 2019 the Tribunal affirmed the Delegate’s Decision not to grant Ms Kaur a Temporary Business Visa: CB 49 at [22].
In the Tribunal Decision the Tribunal:
(a)set out the background to the review: CB 47 at [1];
(b)noted that the Temporary Business Visa application:
(i)was made on 20 September 2016 on the basis of a nomination by Top Import Export Pty Ltd trading as Spice N Ice Indian Restaurant (“Sponsor”): CB 47 at [2]; and
(ii)did not include Ms Sehajdeep Kaur (who was born on 26 July 2016 before the Temporary Business Visa application was made): CB 47 at [2];
(c)identified that at the time of lodging the Temporary Business Visa application, Class UC contained subclass 457 and the criteria for its grant was set out in Pt 457 of Sch 2 to the Migration Regulations: CB 47 at [3];
(d)noted that cl 457.223 of Sch 2 to the Migration Regulations had to be satisfied for Ms Kaur to be granted a Temporary Business Visa, and that it required Ms Kaur to satisfy one of the alternative streams for the Temporary Business Visa: CB 47 at [3];
(e)identified that the issue before the Tribunal was whether Ms Kaur satisfied the requisite criteria to be granted a Temporary Business Visa: CB 47 at [7];
(f)noted the requirement for an approved nomination under cl 457.223(4)(a) of Sch 2 to the Migration Regulations which required Ms Kaur to establish that:
(i)there was an approved nomination of an occupation in place pursuant to s 140GB of the Migration Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(iii)the approval of the nomination had not ceased pursuant to reg 2.75 of the Migration Regulations: CB 47 at [9];
(g)observed that the Sponsor’s nomination application was refused by the Department of Immigration and Border Protection (“Department”) on 9 November 2016 (“Nomination Refusal Decision”), and that the Sponsor did not apply to the Tribunal for merits review of the Nomination Refusal Decision: CB 47-48 at [10];
(h)found that there was no approved nomination of an occupation currently in place and that cl 457.223(4)(a)(i) of Sch 2 to the Migration Regulations was therefore not met by Ms Kaur: CB 47-48 at [10];
(i)observed that on 21 September 2018 and 12 December 2018 the Tribunal wrote to Ms Kaur pursuant to s 359A of the Migration Act and invited Ms Kaur to comment on or respond to information that Ms Kaur was not the subject of an approved nomination by a standard business sponsor (“Invitations to Comment”): CB 48 at [11];
(j)observed that the Invitations to Comment were sent to the authorised representative of Ms Kaur as provided in the application review form and stated that a response was required by 5 October 2018 and 27 December 2018 respectively: CB 48 at [11];
(k)noted that Ms Kaur did not respond to the Invitations to Comment within the prescribed period, and that in such circumstances s 359C of the Migration Act applied, and pursuant to s 360(3) of the Migration Act, Ms Kaur was not entitled to appear before the Tribunal and that the Tribunal could make a decision without taking any further action to obtain information: CB 48 at [12];
(l)also referred to s 363A of the Migration Act, and that as Ms Kaur had failed to engage with the Tribunal despite the Tribunal’s requests to do so, the Tribunal proceeded to make its decision: CB 48 at [12];
(m)noted that Ms Kaur was not the subject of an approved nomination at the time of the Tribunal Decision and that the Tribunal could not be satisfied that the requirements of cl 457.223(4)(a) of Sch 2 to the Migration Regulations had been met: CB 48 at [13];
(n)concluded that Ms Kaur did not satisfy the primary criteria for the grant of the Temporary Business Visa and that there was no requirement to assess the review application against any other criteria: CB 48 at [13];
(o)referred to the secondary criteria under cl 457.321 of Sch 2 to the Migration Regulations, which requires an applicant to be a member of the family unit of a person (the primary applicant) who having met all of the primary criteria is the holder of a subclass 457 visa, but noted that there was no evidence or claim made that Mr Amandeep Singh or Ms Jannat satisfied the primary criteria for the grant of a subclass 457 visa, and therefore Ms Kaur was not a member of the family unit of a person who having met all of the primary criteria was the holder of a subclass 457 visa, and Ms Kaur therefore also failed to satisfy the requirements of cl 457.321 of Sch 2 to the Migration Regulations: CB 48 at [14]-[15];
(p)noted in relation to Ms Sehajdeep Kaur that:
(i)she was not on the application for the Temporary Business Visa: CB 48 at [20];
(ii)pursuant to reg 2.08 of the Migration Regulations, if a child is born to a visa applicant after a visa application is made and the Department is notified of the birth of that child before the primary decision is made, that child will normally be the subject of the primary decision and may be included in an application for review: CB 48 at [20];
(iii)however reg 2.08 of the Migration Regulations did not apply in this case as Ms Sehajdeep Kaur, who was born on 26 July 2016, was not included in the Temporary Business Visa application made on 20 September 2016; and
(iv)Ms Sehajdeep Kaur was not the subject of the Delegate’s Decision made on 1 May 2017: CB 48 at [20],
and that in those circumstances the Tribunal had no jurisdiction in relation to Ms Sehajdeep Kaur: CB 49 at [21];
(q)affirmed the Delegate’s Decision not to grant Ms Kaur a Temporary Business Visa, and reiterated that it did not have jurisdiction in relation to Ms Sehajdeep Kaur: CB 49 at [22].
JUDICIAL REVIEW APPLICATION
Grounds
There are two grounds in the Judicial Review Application as follows (reproduced unaltered):
1. Due to my nomination application refusal my visa application refused as well.
2.Administrative Appeals Tribunal did Jurisdictional Error by not requesting any further documents from us.
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court on 1 April 2019. Given the delay of more than three and a half years in the matter being brought to hearing before this Court it is appropriate to briefly set out the litigation history of the matter, which is as follows:
(a)on 23 May 2019 a Registrar of this Court made consent orders in Chambers which, amongst other things, listed the matter for:
(i)a directions hearing more than twelve months later on 12 June 2020; and
(ii)a final hearing on a date to be advised;
(b)on 3 January 2020 the parties were sent a Notice of Adjournment by a Client Services Officer in the Adelaide Registry of the Court informing them that the directions hearing on 12 June 2020 had been vacated and adjourned to a date to be fixed, and that they would be “notified in due course of a new listing date”;
(c)almost two years later, in May 2022, the matter was docketed to the presiding Judge in the Perth Registry of the Court;
(d)on 18 May 2022 the parties were notified of a directions hearing listed for 23 May 2022 before the presiding Judge;
(e)on 23 May 2022 the parties attended a directions hearing where orders (“May 2022 Orders”) were made that:
(i)Ms Kaur file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 10 October 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 24 October 2022; and
(iii)the matter be listed for a final hearing by video link on 8 November 2022 at 1.00pm AWST/3.30pm ACDT before Judge Lucev;
(f)on 16 September 2022 in the Related Judicial Review Application (ADG198/2022) orders were made by consent (“September 2022 Orders”) which included the following orders:
(i)for the Related Judicial Review Application (ADG198/2022) to be docketed to the docket of Judge Lucev and listed for final hearing by video link on 8 November 2022 at 1.00pm AWST/3.30pm ACDST before Judge Lucev (that is, at the same time as this Judicial Review Application was to be heard); and
(ii)that this Judicial Review Application (ADG113/2019) and the Related Judicial Review Application (ADG198/2022) were to be progressed and heard consecutively;
(g)Ms Kaur filed no submissions or documents pursuant to the May 2022 Orders; and
(h)on 14 October 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Ms Kaur’s submissions
Ms Kaur did not file written submissions in support of the Judicial Review Application: see [8(g)] above.
In oral submissions at hearing Ms Kaur submitted: Transcript, pp 3-4 and 6, that:
(a)her intention was to work in Australia as a manager in a restaurant, and unfortunately her business nomination was refused, and the Temporary Business Visa application was therefore refused;
(b)her application to the Tribunal for review was unsuccessful;
(c)the employer has since sold the business, and as a result Ms Kaur has not been able to find another sponsor;
(d)Ms Kaur was a victim of fraud by her employer as she was not informed of the Nomination Refusal Decision, and therefore did not get a fair chance to defend her Temporary Business Visa application;
(e)she did not deserve to be punished for someone else’s mistakes in that the unsatisfactory actions (which she described as “fraud”) of her employer had led to her Temporary Business Visa to be refused;
(f)she requested some time be given to allow for processing of a further nomination application; and
(g)she did not know what mistake the Tribunal had made but knew that the nomination had been cancelled.
Minister’s submissions
Ground 1
The Minister submitted in relation to ground 1 that:
(a)ground one is not a proper ground of review and relates to the nomination application, which Ms Kaur has no standing to challenge: Migration Act, ss 486C(2)(a) and 479(a); Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 (“Mamun”) at [40] per Judge Kendall;
(b)whilst this Court does not have jurisdiction to review a nomination decision concerning a sponsor when dealing with a judicial review application filed by the associated visa applicant, it does have the ability to inquire into the validity of the nomination decision because any invalidity of the nomination decision could affect the validity of the visa refusal decision: Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730 at [48] and [72] per Judge Smith. In this matter the Sponsor did not, however, apply to the Tribunal for review of the Nomination Refusal Decision; and
(c)in circumstances where the uncontested evidence before the Tribunal was that Ms Kaur was not the subject of an approved nomination, and the Nomination Refusal Decision was valid, the finding in the Tribunal Decision that Ms Kaur did not meet cl 457.223 of Sch 2 to the Migration Regulations was the only finding that was legally open to the Tribunal.
Ground 2
The Minister submitted in relation to ground 2 that:
(a)there is no merit to this ground because the Tribunal provided the Invitations to Comment to Ms Kaur under s 359A of the Migration Act, to which it received no response;
(b)the Invitations to Comment were sent to Ms Kaur’s nominated email address and there was no evidence that these emails were not delivered; and
(c)as Ms Kaur did not respond to the Invitations to Comment within the period prescribed under reg 4.35(3)(b)(i) of the Migration Regulations, s 359C of the Migration Act applied, and pursuant to ss 360(3) and 363A of the Migration Act, Ms Kaur was not entitled to appear before the Tribunal and the Tribunal did not have power to permit Ms Kaur to appear before it.
Materiality and futility
The Minister submitted in relation to materiality and futility that:
(a)the relief that Ms Kaur seeks is for the Tribunal Decision to be quashed and, presumably, that the matter be remitted to the Tribunal for redetermination, however Ms Kaur would still be required to satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations, as at the date of the Tribunal Decision;
(b)the Court can safely infer that Ms Kaur will never be able to satisfy that mandatory visa criteria for the following reasons:
(i)on 18 March 2018 the Migration Regulations were amended by the Migration Amendment Regulations removing subclass 457 from the class of skilled visas, and as a result it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder;
(ii)it was a requirement for the grant of a subclass 457 visa that the nomination of the occupation in relation to Ms Kaur be approved under s 140GB of the Migration Act, and that that nomination had not ceased: see cl 457.223(4)(a) of Sch 2 to the Migration Regulations. As the Sponsor did not apply to the Tribunal for review of the Nomination Refusal Decision, and in the absence of any later nomination approval, Ms Kaur can no longer be sponsored for the grant of the Temporary Business Visa; and
(iii)it follows that if the matter was remitted to the Tribunal, it would be bound to affirm the Delegate’s Decision as Ms Kaur would still not be able to meet cl 457.223(4)(a) of Sch 2 to the Migration Regulations and it would therefore be futile for the Court to grant relief;
(c)even if Ms Kaur was able to demonstrate jurisdictional error in the Tribunal Decision (of which none is apparent), any error could not be material because there is no realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; (2022) 403 ALR 398 (“Nathanson”) at [1] per Kiefel CJ, Keane and Gleeson JJ, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”) at [45] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [85] per Gordon and Steward JJ; and
(d)as the Judicial Review Application does not demonstrate any jurisdictional error in the Tribunal Decision and none is otherwise apparent, the Judicial Review Application should be dismissed with costs.
Ms Sehajdeep Kaur
In relation to Ms Sehajdeep Kaur the Minister submitted that:
(a)the Tribunal correctly found that reg 2.08 of the Migration Regulations did not apply to Ms Sehajdeep Kaur, as she was born before the Temporary Business Visa application was made; and
(b)the Tribunal correctly concluded that it had no jurisdiction in relation to Ms Sehajdeep Kaur, as she was not included in the Temporary Business Visa application made on 20 September 2016, and was therefore not the subject of the Delegate’s Decision or any reviewable decision.
Consideration
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [85] per Gordon and Steward JJ.
Ground 1
The determinative issue in these proceedings is whether or not Ms Kaur had an approved Sponsor’s nomination. It is not in contention that Ms Kaur did not have an approved Sponsor’s nomination. Ms Kaur ought to have been aware of that fact from the Delegate’s Decision of 1 May 2017 where, at CB 25, it is said that:
(a)the Department refused the Sponsor’s nomination application on 9 November 2016;
(b)on 9 November 2016 Ms Kaur was given an opportunity to provide comment on her intentions, including providing evidence of an approved nomination, or to withdraw the Temporary Business Visa application, but that as at the date of the Delegate’s Decision Ms Kaur had not provided evidence of an approved nomination.
In this case judicial review of the Tribunal’s separate Nomination Refusal Decision was not sought by the Sponsor. Ms Kaur does not now have standing to challenge the Nomination Refusal Decision: Mamun at [40] per Judge Kendall; Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 696 at [46] per Judge Brown. In circumstances where there was no challenge to the Tribunal’s separate Nomination Refusal Decision, and there was therefore no approved nomination for Ms Kaur under cl 457.223 of Sch 2 to the Migration Regulations, and where those matters were properly considered by the Tribunal in correctly determining that Ms Kaur did not meet the criteria for the Temporary Business Visa, there was no jurisdictional error in the Tribunal Decision affirming the Delegate’s Decision to refuse Ms Kaur the Temporary Business Visa.
It follows from the foregoing that ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 lacks merit. The Tribunal issued properly the Invitations to Comment to Ms Kaur’s address for service and Ms Kaur did not respond, in any way, to either of them. The Invitations to Comment specifically sought comment on the determinative issue of whether or not Ms Kaur had an approved Sponsor’s nomination. In the absence of a response to either of the Invitations to Comment it was not incumbent on the Tribunal to request any further documents from Ms Kaur as is suggested by ground 2. Further, because of Ms Kaur’s failure to respond to the Invitations to Comment, Ms Kaur was not entitled to appear before the Tribunal and the Tribunal did not have power to permit Ms Kaur to appear before it: Migration Act, ss 360(3) and 363A.
It follows from the foregoing that ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Possible fraud
The Court notes that in the course of her oral submissions at hearing Ms Kaur alleged fraud by her employer, the Sponsor, because the Sponsor did not tell her that the nomination had been refused. This is not evidence of any arguable jurisdictional error in the nature of a fraud on the Tribunal by a third party of the kind referred to in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”). Insofar as Ms Kaur complains about the conduct of the Sponsor in failing to inform her of the outcome of the Sponsor’s nomination, that conduct is at most mere neglect, negligence or inadvertence, and not a fraud upon the Tribunal: SZFDE at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, and therefore does not give rise to jurisdictional error.
Materiality and futility
It can be presumed in Ms Kaur’s favour that, properly pleaded, Ms Kaur would seek relief not only by way of orders that the Tribunal Decision be quashed, but also that the matter be remitted to the Tribunal for re-determination.
If the matter were to be remitted to the Tribunal for re-determination Ms Kaur would still be required to satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations as at the date of any further Tribunal decision. Ms Kaur cannot satisfy that mandatory visa criteria because:
(a)it was a requirement for the grant of the Temporary Business Visa (a subclass 457 visa) that the nomination be approved under s 140GB of the Migration Act, and that that nomination had not ceased: Migration Regulations, Sch 2, cl 457.223(4)(a). Ms Kaur can no longer be sponsored for the grant of the Temporary Business Visa because the Nomination Refusal Decision was not one in respect of which the Sponsor sought judicial review by the Tribunal. If the matter was now to be remitted to the Tribunal it would therefore be bound to affirm the Delegate’s Decision because Ms Kaur cannot fulfil the criteria in cl 457.223(4)(a) of Sch 2 to the Migration Regulations; and
(b)the Migration Amendment Regulations have removed subclass 457 from the class of skilled visas, thereby having the effect that an employer can no longer seek approval of a nomination to sponsor a prospective subclass 457 visa holder.
For an error to be jurisdictional the error must be material in the sense that there is a realistic possibility of a different outcome: Nathanson at [1] per Kiefel CJ, Keane and Gleeson JJ; SZMTA at [45] per Bell, Gageler and Keane JJ; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [85] per Gordon and Steward JJ. So even if Ms Kaur was able to demonstrate jurisdictional error in the Tribunal Decision (which in the Court’s view she cannot), having regard to [22] above, any such error could not be material because there is not a realistic possibility of a different outcome if the matter were to be remitted to the Tribunal.
It would therefore be futile for the Court to grant relief because the only outcome open to the Tribunal on remittal would therefore be to again affirm the Delegate’s Decision, and relief by way of remittal would therefore lack utility as no useful alternate result could ensue: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278, CLR at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ.
Jurisdictional error otherwise
The Court is cognisant that Ms Kaur was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that Ms Kaur has not made out the grounds of the Judicial Review Application, and that the Tribunal Decision is not affected by jurisdictional error by reason of the grounds, or otherwise, and that even if there was an error (which there was not) it could not have been a material jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 1 April 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 June 2023
SCHEDULE OF PARTIES
ADG 113 of 2019 Applicants
Fourth Applicant:
JANNAT
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