Kaur v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 481

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 481

File number(s):

ADG 198 of 2022

Judgment of:

JUDGE LUCEV

Date of judgment:

16 June 2023

Catchwords:

MIGRATION – Judicial review – Administrative Appeals Tribunal decision – minor child applicant – whether a member of the family unit of a person who held a subclass 457 visa – whether denial of procedural fairness – whether fraud on the Administrative Appeals Tribunal – whether jurisdictional error   

Legislation:

Migration Act 1958 (Cth) Pt 5, Div 5, ss 140GB, 357A, 474, 476

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

Migration Regulations 1994 (Cth) Sch 2, cll 457.223, 457.321

Cases cited:

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 480

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

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

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; [2017] 253 FCR 267; (2017) 156 ALD 284

Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905

Division:

Division 2 General Federal Law

Number of paragraphs:

25

Date of last submission/s:

8 November 2022

Date of hearing:

8 November 2022

Place:

Perth

Applicant:

Ms Ravinder Kaur as the litigation guardian for the applicant via CISCO Webex with an interpreter

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 198 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SEHAJDEEP KAUR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP 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 originating application filed on 8 August 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. Before the Court is an application filed on 8 August 2022 for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application was filed by Ms Ravinder Kaur (“Ms Kaur”), the litigation guardian for the applicant, Ms Sehajdeep Kaur (“Applicant”). The Judicial Review Application seeks judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 4 July 2022 to affirm a decision by 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 the Applicant a visa.

2. The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 90-94.

3. In a related matter ADG113/2019 (“Related Proceedings”), Ms Kaur is the first applicant and the Applicant is the third applicant. On 16 September 2022 the Court made orders (“September 2022 Orders”) by consent for the Judicial Review Application and the Related Proceedings to be progressed and heard consecutively. The Court notes at the outset that the Judicial Review Application and the Related Proceedings deal with two separate visa applications and two separate Tribunal decisions. In Reasons for Judgment delivered earlier this morning in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 480 (“Kaur”) the judicial review application in the Related Proceedings was dismissed, essentially on the basis that:

   (a)Ms Kaur did not have an approved sponsor’s nomination and did not therefore meet the criteria for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457 visa (“Temporary Business Visa”); and

   (b)it would be futile to remit the matter to the Tribunal in any event as the particular visa subclass (subclass 457) had been abolished, and the Tribunal could therefore no longer grant Ms Kaur a Temporary Business Visa.

   BACKGROUND

4. The relevant background to this matter is as follows:

   (a)the Applicant is a minor child born on 26 July 2016 and is the second child of Ms Kaur: CB 50;

   (b)on 17 March 2016 Ms Kaur applied for a subclass 457 visa (“First Visa Application”), with Mr Amandeep Singh (her husband) and Ms Jannat (her first child) as dependants, so that she could work with Spice N Ice Indian Restaurant (“Sponsor”): CB 1-14;

   (c)on 9 September 2016 Ms Kaur notified the Department of Immigration and Border protection (“Department”) of the Applicant’s birth: CB 49-50;

   (d)on 20 September 2016 Ms Kaur withdrew the First Visa Application: CB 54, 61 and 92 at [9], and filed a further subclass 457 application (“Second Visa Application”), which did not include the Applicant as a dependant: CB 61 and 92 at [10];

   (e)the Applicant was subsequently added to the First Visa Application on 19 June 2017, albeit that the status of the First Visa Application was “withdrawn”: CB 51;

   (f)on 1 May 2019 a delegate of the Minister invited Ms Kaur to either withdraw her Second Visa Application or provide comment on the basis that her Second Visa Application could not succeed as the Sponsor’s nomination had been refused: CB 54, an invitation to which no response was received: CB 62;

   (g)on 13 June 2019 the Delegate’s Decision was to refuse the Applicant’s visa application as a dependant on Ms Kaur’s First Visa Application, as she did not satisfy cl 457.321 of Sch 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 60-62;

   (h)on 4 July 2019 an application to the Tribunal was lodged on behalf of the Applicant for review of the Delegate’s Decision (“Tribunal Review Application”): CB 63-64;

   (i)almost three years later, on 27 May 2022, the Tribunal invited the Applicant to attend a hearing of the Tribunal Review Application before the Tribunal on 30 June 2022 via video link (“Tribunal Hearing”): CB 70-71;

   (j)the Tribunal Hearing on 30 June 2022 was attended by the Applicant, Ms Kaur and their representative (a migration agent): CB 83-85; and

   (k)on 4 July 2022 the Tribunal affirmed the Delegate’s Decision to refuse the Applicant a visa under the First Visa Application: CB 93 at [18].

   TRIBUNAL DECISION

5. In the Tribunal Decision the Tribunal:

   (a)set out the background to the Tribunal Review Application: CB 91 at [1];

   (b)noted that Ms Kaur applied for the First Visa Application on 17 March 2016, with the Applicant listed as a dependant. The Tribunal noted further that the Delegate refused to grant the First Visa Application to the Applicant on the basis that the Applicant did not satisfy cl 457.321 of Sch 2 to the Migration Regulations: CB 91 at [2];

   (c)referred to the Tribunal Hearing in which the Applicant was represented by Ms Kaur who appeared by Microsoft Teams via video link with the assistance of a Punjabi interpreter and gave evidence and presented arguments, together with a migration agent representative who made submissions on behalf of the Applicant: CB 91 at [3];

   (d)identified the issue before it was whether the Applicant was a member of the family unit of a primary applicant who was the holder of a subclass 457 visa: CB 91 at [5];

   (e)had regard to the relevant provisions of the Migration Act and the prescribed criteria in the Migration Regulations: CB 91 at [6]-[7];

   (f)identified that the Applicant, at the time of the Tribunal Decision, was a five-year old child: CB 91 at [8];

   (g)examined the circumstances of Ms Kaur’s visa history: CB 91-92 at [9]-[10];

   (h)noted that the Second Visa Application made by Ms Kaur on 9 September 2016 did not include the Applicant, and that at the time of the Delegate’s Decision Ms Kaur had not been granted a subclass 457 visa: CB 92 at [10];

   (i)made reference to the Related Proceedings then listed before this Court: CB 92 at [11];

   (j)noted Ms Kaur’s evidence in which she:

   (i)conceded that she did not hold a subclass 457 visa: CB 92 at [12]; and

   (ii)claimed that she was a “victim of changes in Departmental policy” due to the abolition of the subclass 457 visa: CB 92 at [13];

   (k)considered Ms Kaur’s request to further delay consideration of the Tribunal Review Application, and had regard, among other things, to the Tribunal’s objective of providing a mechanism of review that is fair, just and economical and quick, in determining not to further delay consideration of the Tribunal Review Application: CB 92 at [14];

   (l)concluded that at the time of the Tribunal Decision the evidence before the Tribunal was that Ms Kaur, as the primary visa applicant, did not hold a subclass 457 visa, and that no evidence had been presented to the Tribunal that any other member of the Applicant’s family unit held a subclass 457 visa and that the Applicant therefore did not satisfy cl 457.321 of Sch 2 to the Migration Regulations: CB 93 at [16]; and

   (m)affirmed the Delegate’s Decision not to grant the Applicant a subclass 457 visa: CB 93 at [18].

   JUDICIAL REVIEW APPLICATION

   Grounds

6. The Judicial Review Application contains seven grounds of review as follows (reproduced unaltered):

   1.I lodged a subclass 457 visa review application with AAT, and I have received an unsuccessful outcome on my review application.

   2.        AAT wasn’t not satisfied that I meet the criteria for the grant of the visa.

   3.I do not agree with this decision and want to dispute the decision in the Federal Circuit Court.

   4.Tribunal member failed to see the compelling circumstances and affirmed the immigration department’s decision not to grant me a subclass 457 visa.

   5.I believe that a jurisdictional error has been made by AAT department while deciding on my review application.

   6.        I believe that I was denied procedural fairness in my application.

   7.        I want to dispute the decision in Federal circuit court.

   Applicant’s submissions

7. In the September 2022 Orders the Court ordered that the Applicant file and serve any amended originating application, any further affidavits, and an outline of submissions by 10 October 2022. The Applicant did not file any documents pursuant to the September 2022 Orders.

8. At hearing Ms Kaur made oral submissions, but those submissions were directed to matters in issue in the Related Proceedings, and nothing specific to this Judicial Review Application was put.

   Minister’s submissions

9. The Minister submitted that:

   (a)grounds one to three, five and seven are not proper grounds of review as they do not articulate any jurisdictional error and seek impermissible merits review of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;

   (b)ground four asserts that the Tribunal “failed to see the compelling circumstances”, but there is no merit to this ground because the Tribunal’s task was a binary one. In circumstances where the uncontested evidence before the Tribunal was that the Applicant was not a member of the family unit of a person who held a subclass 457 visa, the Tribunal’s finding that the Applicant did not meet cl 457.321 of Sch 2 to the Migration Regulations was the only finding that was legally open to it. The Tribunal had no discretion to waive that criteria due to “compelling circumstances”;

   (c)ground six asserts a denial of procedural fairness but does not articulate what the alleged unfairness was. The Tribunal complied with its procedural fairness obligations under Pt 5, Div 5 of the Migration Act, which are taken to be an exhaustive statement of the natural justice hearing rule for matters of this kind: Migration Act, s 357A. The Tribunal put Ms Kaur on notice of the determinative issues and invited her to attend the Tribunal Hearing (on the Applicant’s behalf), and provided rational and logical reasons for refusing to postpone its decision-making. In those circumstances, no procedural unfairness is revealed; and

   (d)in relation to materiality and futility, the Court can safely infer that the Applicant will never be able to satisfy the mandatory visa criteria for the following reasons:

   (i)on 18 March 2018, the Migration Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), which removed 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 had been approved under s 140GB of the Migration Act, and that that nomination had not ceased (see cl 457.223(4)(a) of the Migration Regulations). As the sponsor discontinued its judicial review proceedings in relation to the nomination refusal decision in February 2020 and did not apply to the Tribunal for review of the second nomination refusal decision, in the absence of any later nomination approval, Ms Kaur can no longer be sponsored for the grant of the visa and therefore, the Applicant’s parent’s judicial review proceedings are futile. The futility in those Court proceedings also renders these proceedings futile: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; [2017] 253 FCR 267; (2017) 156 ALD 284, FCR at [88] per Mortimer J; Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 at [21] per Judge Lucev; and

   (iii)even if the Applicant is able to demonstrate jurisdictional error in the Tribunal’s 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, HCA at [1] 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, CLR 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”), ALJR at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [85] per Gordon and Steward JJ.

   CONSIDERATION

   Requirement for jurisdictional error

10. 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.

    Grounds 1, 2, 3, 5 and 7

11. These grounds fail to articulate any jurisdictional error in the Tribunal Decision. Rather, the grounds:

    (a)make simple statements of fact: as in grounds 1 and 2; and

    (b)express bare disagreement with the Tribunal Decision: as in grounds 3, 5, and 7; and

    and as such do not constitute an allegation of, or any recognisable category of, jurisdictional error. 

12. It follows that these grounds do not establish jurisdictional error in the Tribunal Decision.

    Ground 4

13. Insofar as ground 4 asserts that the Tribunal failed “to see” or to have regard to “compelling circumstances” it is misconceived. In order to obtain the subclass 457 visa the Applicant had to meet the criteria in cl 457.321 of Sch 2 to the Migration Regulations by being a member of the family unit of a person who held a subclass 457 visa.

14. The undisputed evidence is that the Applicant was not a member of the family unit of a person who held a subclass 457 visa. The Tribunal was not authorised to have regard to “compelling circumstances” as the relevant criteria did not prescribe such circumstances as a criteria for the grant of the visa. The Tribunal’s finding that the Applicant did not meet the criteria for the grant of the visa was the only finding open to it, and was an inevitable consequence of the undisputed evidence that the Applicant was not a member of the family unit of a person who held a subclass 457 visa. 

15. In the circumstances, ground 4 does give rise to any error, let alone jurisdictional error, in the Tribunal Decision.

    Ground 6

16. In ground 6 the Applicant alleges a denial of procedural fairness, but did not particularise the alleged procedural unfairness.

17. It is apparent that the Tribunal complied generally with its procedural fairness obligations under Part 5, Division 5 of the Migration Act in circumstances where:

    (a)Ms Kaur was notified of the Tribunal Hearing: CB 69-73;

    (b)the Applicant attended the Tribunal Hearing with Ms Kaur and a migration agent representative: CB 83-86;

    (c)Ms Kaur participated in the Tribunal Hearing with the assistance of a Punjabi interpreter, and her migration agent representative also made submissions, on behalf of the Applicant: CB 91 at [3];

    (d)the Tribunal considered the submissions made: CB 92 at [11]-[13];

    (e)the Tribunal provided reasons for refusing to postpone its decision-making: CB 92 at [14]; and

    (f)the Tribunal provided reasons as to why it had to affirm the Delegate’s Decision: CB 93 at [16]-[17].

18. To the extent that it might be alleged that jurisdictional error arises from the Tribunal’s failure to delay its determination of the matter, the Tribunal considered the Applicant’s request to do so in the Tribunal Decision at CB 92 at [14] as follows:

    The Tribunal considered the request to further delay the matter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just and economical and quick. Due to current caseload there had already been a considerable delay in the constitution of the review of the matter. Further, on the material presented to the Tribunal, a delay of the decision was not requested as there was evidence or a likelihood that the circumstances of the applicant would change in the immediate future to alter the outcome of the review application. It was not claimed within the next two months that as primary visa applicant, it was anticipated Ms Ravinder Kaur would be likely to be granted a Subclass 457 visa, so that consequently that the applicant would then satisfy the secondary criteria as a member of her family unit. It was to facilitate a possible future visa application which has not yet been made and over which the Tribunal has no jurisdiction or control. It will not be in relation to a Subclass 457 visa as that class of visa has closed. It would appear that any delay would have limited effect on the outcome of this review application. In these circumstances the Tribunal did not consider a further delay in the determination of the matter to be appropriate or consistent with the Tribunal’s objective.

1. The Tribunal went on to again note Ms Kaur’s concession that she did not have a subclass 457 visa, and that the Related Proceedings were not expected to have a hearing in this Court for “at least a further five months”: CB 92 at [15], before going on to find that the Applicant did not satisfy the visa criteria under cl 457.321 of Sch 2 to the Migration Regulations: CB 93 at [16].

2. The application to delay was heard and determined by the Tribunal, which gave proper, understandable and logical reasons for refusing to delay based on the Tribunal’s objectives and workload, the remoteness of any resolution of the Related Proceedings, and that the delay was sought, not to resolve Ms Kaur’s subclass 457 visa issues (which were irresolvable because that class of visa had been abolished – or “closed” as the Tribunal put it), but to allow her to apply for a completely new and different class of visa. In those circumstances no procedural fairness arises from the Tribunal’s failure to delay its determination of the Tribunal Review Application.

3. For the reasons set out at [17]-[20] above no procedural unfairness by the Tribunal is made out, and ground 6 does not give rise to jurisdictional error in the Tribunal Decision.

   Materiality and futility

4. Having regard to the fact that no jurisdictional error had been made out it is strictly unnecessary to consider the issues of materiality and futility, but the Court observes that even if a jurisdictional error had been made it would not have been material and prerogative relief would have been futile for the same reasons as set out in the earlier delivered judgment in Kaur at [23]-[24] per Judge Lucev.

   Jurisdictional error otherwise

5. Having regard to the fact that the Applicant was not legally represented the Court has endeavoured to remain alert to the possibility that some form of arguable legal error in the Tribunal Decision not raised by the Applicant might arise: 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

6. The Court has concluded that none of the grounds of the Judicial Review Application have been made out, and that the Tribunal Decision was not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 8 August 2022.

7. The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       16 June 2023