Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 243
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
File number: PEG 84 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 March 2023 Catchwords: MIGRATION – Temporary Business Entry (Class UC) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal complied with its procedural fairness obligations – whether the Tribunal failed to consider the first applicant’s “exceptional circumstances” – whether the Tribunal’s decision to refuse to grant the first applicant additional time to find a new sponsor was legally unreasonable – whether the Tribunal “took too long” to assess the applicants’ review application – whether the Tribunal erred by allowing the applicants to appear at a hearing before it – no jurisdictional error – remittal futile in any event – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 357A, 359A, 359B, 359C, 360, 360A, 363, 363A & 476 and Division 5 of Part 5
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), cll 457.223 & 457.321 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Lee v Minister for Immigration and Citizenship [2008] FCA 162
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Papavanis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 107
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister For Immigration & Anor [2018] FCCA 1042
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 23 March 2023 Place: Perth Applicants: The first and second applicants appeared in person (via telephone) Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 84 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAWANDEEP KAUR
First Applicant
SARBPREET SINGH SANDHU
Second Applicant
SURKHAAB SINGH SANDHU
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicants are citizens of India (Court Book (“CB”) 2-5). The first and second applicant are wife and husband respectively (CB 3). The third applicant is their son (CB 5).
On 3 October 2017, the first applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (the “visa”) (CB 1-19). Her husband and son (the second and third applicants) were included in that visa application (CB 3-5).
In her visa application, the first applicant listed the “Australian Institute of Technical Training Pty Ltd” (the “sponsor”) as her sponsoring employer in the nominated position of “Accountant” (CB 11).
On 24 November 2017, the then Department of Immigration and Border Protection (the “Department”) requested more information from the first applicant in support of her visa application (CB 26-37).
In response, the applicants provided additional documents to the Department (CB 38-60).
On 11 January 2018, the Department requested further information from the first applicant in support of her visa application (CB 61-68).
On 25 September 2018, the Department invited the applicant to comment on information (CB 69-71). Specifically, the Department noted that the first applicant’s sponsor did not have an approved nomination for the first applicant (which was one of the criteria for the grant of the visa) and that, on that basis, her visa application could not be approved. Further, the Department noted that the applicants “visa application [could not] be linked to a new nomination application” (CB 69). The first applicant was required to respond to that invitation within 28 days (CB 69).
No response was received by or on behalf of the applicants.
On 3 November 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 77-81). The delegate was not satisfied that the first applicant met cl 457.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because she was “not the subject of an approved nomination” (CB 78). The delegate also found that the second and third applicants did not meet cl 457.321 in Schedule 2 of the Regulations because they were not “members of the family unit of a person … who [had] satisfied the primary criteria” for the grant of the visa (CB 79-81).
On 21 November 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 82-84). In that application, the applicants nominated a registered migration agent to assist them with the Tribunal review (the “representative”) (CB 83-84).
On 18 February 2022, the Tribunal invited the applicants (through their representative) to attend a hearing before it on 8 April 2022 (CB 89-93).
On 2 March 2022, the Tribunal invited the applicants (through their representative) to comment on or respond to information (CB 94-98). Specifically, the Tribunal stated:
The particulars of the information are:
•The application for approval of the nominated position made by AUSTRALIAN INSTITUTE OF TECHNICAL TRAINING PTY LTD (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision, but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 16 March 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
On 17 March 2022, the first applicant responded to the invitation to comment, as follows (CB 100):
During the COVID pandemic everyone’s circumstances changed and so did mine, as the education industry was one of the severely affected industry my sponsor being an education provider was also severely affected by the lockdown and border closures. These unfortunate circumstances left me stranded and to survive through the pandemic I had to move to Western Australia as it was the least effected region in Australia. Somehow we have been able to manage through these hard circumstances, looking for job opportunities as businesses are coming back to normal.
But as you are aware these circumstances during the pandemic have made lot of businesses loose employees some for lack for enough, some for not being able to operate and other simply as they could not afford to pay the staff. Seems like my sponsoring business is one of those business and it has put me in a situation where I have to look for a new employer to sponsor me. Since I came to know about that the decision of the nomination application has been affirmed I am actively looking to find a new employer, who could nominate me for the same position. At this stage I have not been able to find a sponsor but I am sure that if I am given some time I will be able to find a new sponsor who can nominate me for the same position.
So, I would kindly request you to allow me some time to find a new employer and lodge a new nomination application in support of me review application. I would be very thankful to the Tribunal for providing me some additional time.
The response from the first applicant was received outside of the allowed time period and the applicants were therefore no longer entitled to appear at a hearing before the Tribunal. However, the Tribunal held a hearing on 8 April 2022 and the first and second applicants appeared at that hearing (CB 109). This issue will be discussed further below.
On 8 April 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 108-112).
On 4 May 2022, the applicants sought judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth).
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
In assessing whether the Tribunal has fallen into error it is useful to first outline the Tribunal’s decision in detail: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32].
The Tribunal’s decision is five pages in length and spans 16 paragraphs.
The Tribunal first outlined the decision under review, noting that the applicants had applied for the visas on 3 October 2017 and that, on 3 November 2018, a delegate of the Minister had refused to grant the visas on the basis that the business nomination lodged by the first applicant’s sponsor was not approved and the first applicant did not meet cl 457.223(4)(a) in Schedule 2 of the Regulations (at [1]-[4]).
The Tribunal also confirmed that the applicants had appeared (via telephone) at a hearing before it on 8 April 2022 and that they were represented in relation to the Tribunal review (at [5]-[6]).
The Tribunal identified that the issue in this matter was whether the first applicant met the requirements set out in cl 457.223(4)(a) in Schedule 2 of the Regulations and explained that this required that there be “an approved nomination of an occupation” relating to the first applicant “by a standard business sponsor that has not ceased” (at [8]-[9]).
The Tribunal continued:
10.On 2 March 2022 the Tribunal wrote to you and invited you to comment on or respond to certain information which it considered would, subject to your comments, or response, be the reason, or a part of the reason, for affirming the decision under review. In particular the application for approval of the nominated position made by Australian Institute of Technical Training Pty Ltd (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.
11.On 17 March 2022 the Tribunal received a response from the applicants which included an explanation of the circumstances surrounding the employer nomination and visa application refusal, and requested the Tribunal grant an extension of time for the applicant to find a new employer.
12.At hearing, the Tribunal told the applicants it was not minded to grant an extension of time to find a new employer as a new nomination will not operate to fulfil the nomination requirements for this Subclass 457 application. The Tribunal explained to the applicants the changes to the legislative scheme brought in from 18 March 2018, to remove this subclass of visa, which mean that any nomination with respect to this visa application needed to have been applied for prior to that date. The applicants confirmed that they understood these changes. The Tribunal explained that in these circumstances it considers it futile with respect to this visa application, to grant further time to find a new sponsor when it will have no bearing on the applicant’s ability to meet the nomination requirements for the grant of this visa. The applicants told the Tribunal that they are seeking an employer for a Subclass 494 visa. The Tribunal noted the applicant’s submission in this regard but told the applicants it remained that there is no evidence to demonstrate that the applicants can meet the nomination requirement for the grant of this visa.
The Tribunal then determined as follows:
13.As there is no evidence to demonstrate that there is an approved nomination in place, nor that one has not been lodged with respect to this visa application before 18 March 2018, the Tribunal finds that the nomination requirement in cl.457.223(4)(a) are not met.
14.For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
The Tribunal ultimately found that the first applicant did not meet cl 457.223(4)(a) in Schedule 2 of the Regulations and that the second and third applicants did not meet cl 457.321 in Schedule 2 of the Regulations. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [15]-[16]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 4 May 2022 contains three “grounds of review”, as follows (without alteration):
1.The Administrative Appeals Tribunal did not accord me procedural fairness.
2.The Administrative Appeals Tribunal failed to properly consider all elements and exception circumstances of my application.
3.My statement, elaborating the Grounds of Application is attached at end of the application form.
The first applicant’s statement (attached to the application for judicial review) relevantly provides the following additional information:
My sponsor was an education provider and during the waiting period education institutions were adversely affected. Melbourne faced the longest lockdowns in the whole world due to the Covid pandemic, education institutions we closed and only providing online study with bare minimum staff and very few students. Moreover, borders were closed, and no new students were enrolling in the college. In such a situation the education provider did not provide any supporting documents and the review of the nomination ended with an unfavourable outcome which led to the decision of my review of visa application to be affirmed by the AAT.
AAT’s decision had taken so long, and this unreasonably long processing time taken by the tribunal caused the circumstances to become unfavourable to my application denying me procedural fairness while expecting a fair and just proceeding from the Tribunal. The Tribunal also failed to consider the exceptional circumstances caused due to the pandemic while reviewing my application. Outcome could have been different if the Tribunal had reviewed the application in time and had considered the unfortunate circumstances caused by the pandemic. Under the concession provided by the Department of Home Affairs during the pandemic the Tribunal could have allowed me to provide a new nomination in support of my application, but I was not allowed to provide a new nomination.
On 29 July 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
Unfortunately, no further materials were filed by or on behalf of the applicants.
The first and second applicants appeared before this Court on 23 March 2023. They did so by telephone and without legal representation. The first applicant told the Court that she would speak on behalf of her family and advised that the second applicant was with her. The Court explained that the second applicant could also address the Court if there was anything he wished to add during the hearing. The second applicant did not provide any oral evidence.
At the start of the hearing, the Court confirmed with the first applicant that she had received copies of the Court Book and the Minister’s written submissions. The Court also made orders appointing the first applicant the litigation guardian for the third applicant (who is a child).
The materials before this Court include the application for judicial review filed by the applicants on 4 May 2022, the supporting affidavit deposed by the first applicant on 2 May 2022 and also filed on 4 May 2022 (taken as read and in evidence), a Court Book numbering 112 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 24 February 2023 and an affidavit of service of Mr Benjamin Mayne affirmed and filed on 2 March 2023 (also taken as read and in evidence).
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that it had taken “too long for her file to be processed” and that, after one year, she had a baby and needed to care for her son. Following that, “the COVID-19 pandemic hit and the business was not going well which resulted in the sponsor withdrawing their sponsorship”.
This largely echoes the issues raised in the application for judicial review and the attached statement from the first applicant. These issues, to the extent that they identify any possible error on the part of the Tribunal, will be considered below.
CONSIDERATION
Grounds of review
As outlined above, the application for judicial review filed by the applicants in this matter contains three “grounds of review” as follows (without alteration):
1.The Administrative Appeals Tribunal did not accord me procedural fairness.
2.The Administrative Appeals Tribunal failed to properly consider all elements and exception circumstances of my application.
3.My statement, elaborating the Grounds of Application is attached at end of the application form.
Attached to the application for judicial review was a statement from the first applicant, which relevantly provides the following additional information:
My sponsor was an education provider and during the waiting period education institutions were adversely affected. Melbourne faced the longest lockdowns in the whole world due to the Covid pandemic, education institutions we closed and only providing online study with bare minimum staff and very few students. Moreover, borders were closed, and no new students were enrolling in the college. In such a situation the education provider did not provide any supporting documents and the review of the nomination ended with an unfavourable outcome which led to the decision of my review of visa application to be affirmed by the AAT.
AAT’s decision had taken so long, and this unreasonably long processing time taken by the tribunal caused the circumstances to become unfavourable to my application denying me procedural fairness while expecting a fair and just proceeding from the Tribunal. The Tribunal also failed to consider the exceptional circumstances caused due to the pandemic while reviewing my application. Outcome could have been different if the Tribunal had reviewed the application in time and had considered the unfortunate circumstances caused by the pandemic. Under the concession provided by the Department of Home Affairs during the pandemic the Tribunal could have allowed me to provide a new nomination in support of my application, but I was not allowed to provide a new nomination.
Noting that the applicants are not represented, the Court has interpreted the applicants’ grounds of review as broadly as possible (as per the principles articulated in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391). Having done so, the Court has identified the following potential issues arising from the materials before it:
(a)whether the Tribunal complied with its procedural fairness obligations;
(b)whether the Tribunal failed to consider the first applicant’s “exceptional circumstances”;
(c)whether the Tribunal’s decision to refuse to grant the first applicant additional time to find a new sponsor was legally unreasonable; and
(d)whether the Tribunal “took too long” to assess the applicants’ review application.
Whether the Tribunal complied with its procedural fairness obligations
Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes as follows:
(a)the Tribunal exercised its powers under ss 359A and 359B of the Act to disclose adverse information to the applicants and invite them (through their representative) to comment on or respond to that information (CB 94-98). The Tribunal’s invitation complied with the requirements set out in s 359B of the Act and a response was received from the first applicant (albeit outside of the requisite time period);
(b)the Tribunal invited the applicants to attend a hearing before it and the first and second applicants did so (CB 89-93). The applicants gave evidence at the hearing in support of their application. Accordingly, the Tribunal complied with ss 360 and 360A of the Act;
(c)the dispositive issue before the Tribunal (being whether the first applicant was the subject of an approved nomination as required by cl 457.223(4)(a) in Schedule 2 of the Regulations) was the same as the issue before the delegate – which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(d)the Tribunal questioned the first and second applicants, listened to their responses and actively sought further information from them about their circumstances. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness.
No error arises in this regard.
Whether the Tribunal failed to consider the first applicant’s “exceptional circumstances”
It is not entirely clear from the grounds of review (contained in the judicial review application) or from the first applicant’s statement (annexed to that application) what exceptional circumstances the applicants are referencing.
The Tribunal specifically references the first applicant’s response to the invitation to comment letter (at [11] of its reasons) and references discussions the Tribunal had with the first and second applicant and the evidence given by them at the Tribunal hearing (at [12] in its written reasons). As set out by the Tribunal in its reasons, the “Tribunal noted the [first] applicant’s submissions in this regard”, however, it “remained that there [was] no evidence to demonstrate that the [first applicant could] meet the nomination requirement for the grant of [the] visa” (at [12] of the Tribunal’s reasons).
In the circumstances, the Court is satisfied that the Tribunal considered all of the evidence given by the applicants in relation to their particular circumstances.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision to refuse to grant the first applicant additional time to find a new sponsor was legally unreasonable
In the first applicant’s statement (attached to the judicial review application), the first applicant takes issue with the Tribunal refusing to grant her an extension of time to find a new sponsoring employer.
Pursuant to s 363(1) of the Act, the Tribunal has a statutory discretion to adjourn the review of matter “from time to time”.
Section 363(1) of the Act relevantly states:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to section 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
The Tribunal did not exercise that discretion in this matter.
The question then arises as to whether the Tribunal’s decision not to grant the first applicant’s request for additional time to find a new employer (essentially a request to adjourn the review) was legally unreasonable in the manner described in Li.
In this regard, the Court notes the High Court’s reasoning in Li, wherein the High Court assessed the scope of the exercise of a statutory discretion by a decision-maker as follows (emphasis added):
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In this regard, the Court notes that the Tribunal acknowledged the first applicant’s request for “an extension of time” in its written reasons as follows:
11.On 17 March 2022 the Tribunal received a response from the applicants which included an explanation of the circumstances surrounding the employer nomination and visa application refusal, and requested the Tribunal grant an extension of time for the applicant to find a new employer.
The Tribunal discussed the extension of time request with the applicants at the Tribunal hearing (on 8 April 2022). The Tribunal’s reasons also outlines this discussion as follows:
12.At hearing, the Tribunal told the applicants it was not minded to grant an extension of time to find a new employer as a new nomination will not operate to fulfill the nomination requirements for this Subclass 457 application. The Tribunal explained to the applicants the changes to the legislative scheme brought in from 18 March 2018, to remove this subclass of visa, which mean that any nomination with respect to this visa application needed to have been applied for prior to that date. The applicants confirmed that they understood these changes. The Tribunal explained that in these circumstances it considers it futile with respect to this visa application, to grant further time to find a new sponsor when it will have no bearing on the applicant's ability to meet the nomination requirements for the grant of this visa. The applicants told the Tribunal that they are seeking an employer for a Subclass 494 visa. The Tribunal noted the applicant's submission in this regard but told the applicants it remained that there is no evidence to demonstrate that the applicants can meet the nomination requirement for the grant of this visa.
The Tribunal, having considered the request (and having discussed this with the applicants at the Tribunal hearing), ultimately determined that, even if the Tribunal granted the adjournment, the applicants could not meet the nomination requirement for the grant of the visas. The Tribunal stated:
13.As there is no evidence to demonstrate that there is an approved nomination in place, nor that one has not been lodged with respect to this visa application before 18 March 2018, the Tribunal finds that the nomination requirement in cl.457.223(4)(a) are not met.
In effect, the Tribunal’s justification for refusing to “adjourn the review” was that, given “changes to the legislative scheme” which came into effect on 18 March 2018, the first applicant needed to have a nomination application lodged prior to that date and it was “futile” to grant any additional time as a new sponsor would not have assisted the first applicant in meeting the requirements for the visa application under review.
The issue of futility will be discussed by the Court further below.
The Court notes that the Full Court of the Federal Court in Singh stated as follows (emphasis added):
47.This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
Here, it cannot be said that the Tribunal’s reasons do not demonstrate an “intelligible justification” for the Tribunal’s refusal to adjourn the review.
No error arises in this regard.
Whether the Tribunal “took too long” to assess the applicants’ review application
On 21 November 2018, the applicants applied to the Tribunal seeking review of the delegate’s decision (CB 82-84).
On 18 February 2022, the Tribunal invited the applicants (through their representative) to attend a hearing before it on 8 April 2022 (CB 89-93).
On 2 March 2022, the Tribunal invited the applicants (through their representative) to comment on or respond to information (CB 94-98). That invitation letter required the applicants to provide their response to the Tribunal by 16 March 2022 (CB 97).
The first applicant did not respond to that invitation to comment until 17 March 2022 (being one day outside of the timeframe allowed and without seeking any extension of time within which to respond) (CB 100). On that basis, the applicants lost any right they may have had to appear at a Tribunal hearing. This issue will be discussed further below.
Nevertheless, the Tribunal did not cancel the hearing scheduled to take place on 8 April 2022 and the first and second appeared at that hearing to give evidence and present arguments in support of their review application (CB 109).
That same day (on 8 April 2022), the Tribunal affirmed the decision refusing to grant the applicants the visa (CB 108-112).
It is noted that the Tribunal’s objectives, as set out in s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth), provide that:
Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
…
(b) is fair, just, economical, informal and quick;
It took approximately three and a half years for the Tribunal to process and ultimately assess the applicants’ review application before the Tribunal. The Tribunal then handed down a decision on the day of the Tribunal hearing and provided a written statement to the applicants’ representative that same day.
The delay here is significant. It cannot be said that the Tribunal acted “quickly” in relation to this matter. However, as outlined by this Court in Singh v Minister For Immigration & Anor [2018] FCCA 1042, while this may seem, on its face, to be unacceptable, it is clear on the authorities that the objective for the Tribunal to act “quickly” is, legally, only aspirational. There is no legal authority that imposes a timeframe within which the Tribunal must have a matter heard and decided: Minister for Immigration v Eshetu (1999) 197 CLR 611; Li.
While the delay here was no doubt frustrating for the applicants, it does not amount to jurisdictional error on the part of the Tribunal.
Otherwise
While not raised by the applicants, the Court will also consider two additional issues, as follows:
(a)whether the Tribunal erred by allowing the applicants to appear at a hearing before it; and
(b)futility.
Whether the Tribunal erred by allowing the applicants to appear at a hearing before it
As outlined above, on 2 March 2022, the Tribunal invited the applicants (through their representative) to comment on or respond to information (CB 94-98). That invitation letter required the applicants to provide their response to the Tribunal by 16 March 2022 (CB 97). The letter also provided as follows (CB 98):
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The first applicant did not respond to that invitation to comment until 17 March 2022 (being one day outside of the timeframe allowed and without seeking any extension of time within which to respond) (CB 100).
On that basis, the applicants lost any right they may have had to appear at a Tribunal hearing and the Tribunal should not have allowed the applicants to attend any such hearing: ss 359C, 360(2) & 363A of the Act; Singh v Minister for Immigration and Border Protection [2017] FCAFC 67 at [40], [53], [55]-[57]. By allowing the applicants to attend the Tribunal hearing, the Tribunal has thus exceeded its powers (and its jurisdiction in this matter).
The Court does not consider, however, that this amounts to jurisdictional error on the part of the Tribunal.
Relevantly, the Court notes the reasoning in Lee v Minister for Immigration and Citizenship [2008] FCA 162 (“Lee”), as follows:
20Even if (as the learned Federal Magistrate held) the Tribunal exceeded its jurisdiction when it held a hearing (see M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 at 345-346), it had plainly not denied the applicant procedural fairness as he alleged or occasioned him any relevant prejudice.
…
22In the circumstances of the case, the Federal Magistrate was entitled to find that the Tribunal’s discretion to refuse an extension of time to respond to the s 395A notice had not miscarried and that the Tribunal had no obligation to inform the applicant that his case was hopeless. Accordingly, the Federal Magistrate was correct in finding that, although the Tribunal exceeded its jurisdiction, the Tribunal had not denied the applicant procedural fairness in doing so.
That reasoning applies here. By allowing the applicants to appear at a hearing before it, the Tribunal did exceed its jurisdiction in this matter. However, as was the case in Lee, the applicants were not denied procedural fairness by the Tribunal doing so. The Tribunal in this matter gave the applicants an opportunity to give evidence, to present arguments and to make oral submissions at a hearing in circumstances where the applicants were not, in fact, entitled to do so. Essentially, the Tribunal gave the applicants more of an opportunity than they should have had to present their case in this matter. There was thus no practical unfairness or practical injustice to the applicants as a result of the Tribunal exceeding its jurisdiction in this matter.
No jurisdictional error arises here.
Futility
In the event that the Court is wrong in finding that no jurisdictional error arises on the applicants’ grounds of review, or elsewhere in the Tribunal’s decisions, the Court also notes as follows.
As set out by this Court in the decision of Papavanis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 107, on 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the “Amending Regulations”) which removed Subclass 457 visas. From that date, no new nominations could be lodged with the Department. It was thus no longer possible for the first applicant to obtain an approved nomination from another sponsoring employer at the time of the Tribunal’s decision (or, indeed, at the time of the delegate’s decision). In fact, this was the case at any point after the introduction of the Amending Regulations (that is, at any time after 18 March 2018).
In the absence of there being any approved or pending nomination in respect of the first applicant (and noting that no new nomination applications may now be lodged), the first applicant can no longer be sponsored for the grant of the visa.
As the first applicant can no longer be sponsored, she cannot meet cl 457.223(4)(a) in Schedule 2 of the Regulations.
The first applicant thus faces a fundamental difficulty that, irrespective of whether the Tribunal committed jurisdictional error, she can no longer be granted the visa.
The Court is satisfied that in these circumstances, it would be futile to remit the matter to the Tribunal.
CONCLUSION
The application for judicial review filed by the applicants on 4 May 2022 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 March 2023
18
21
0