Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 285
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 285
File number: SYG 2943 of 2018 Judgment of: JUDGE LAING Date of judgment: 3 May 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination (Permanent) (Class RN, Subclass 187) visas – where the substantive application was dismissed for non-appearance – application for reinstatement – whether the applicant had a reasonable explanation for non-appearance – whether there is merit to the grounds in the substantive application – futility of remitting the matter to the Tribunal – application for reinstatement dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 163
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Muzammil v Minister for Home Affairs [2019] FCCA 1564
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 19 April 2022 Place: Sydney The Applicant: The First Applicant appeared in person Solicitors for the Respondents: Mr E Taylor of Mills Oakley ORDERS
SYG 2943 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJWINDER KAUR
First Applicant
JASPREET SINGH
Second Applicant
GURLEEN KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
3 MAY 2022
THE COURT ORDERS THAT:
1.The application in a case filed on 25 August 2021 is 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 LAING:
INTRODUCTION
Before the Court is an application in a case filed on 25 August 2021 (Reinstatement Application) seeking to set aside orders made on 16 August 2021 dismissing an application for judicial review (Substantive Application) on the basis of non-appearance pursuant to r 13.03C(1)(c) of the (then) Federal Circuit Court Rules 2001 (Cth) (FCCA Rules).
The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Delegate), which refused to grant the applicants Regional Employer Nomination (Permanent) (Class RN, Subclass 187) visas (visas).
BACKGROUND
The applicants applied for the visas on 2 December 2015. The first applicant in these proceedings (Applicant) sought to meet the primary criteria in the Direct Entry stream for work in the nominated position of Café and Restaurant Manager 141111. The other applicants, who are the Applicant’s husband and child, sought to meet the secondary criteria as members of the family unit.
The Applicant sought to meet the criteria for the visas on the basis of proposed sponsorship by Rupinder Kaur (Sponsor). Clause 187.233 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations) stated the following requirements:
187.233
(1)The position to which the application relates is the position:
a)nominated in an application for approval that seeks to meet the requirements of:
i.subparagraph 5.19(4)(h)(ii); or
ii.subregulation 5.19(4) as in force before 1 July 2012; and
b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3)The Minister has approved the nomination.
(4)The nomination has not subsequently been withdrawn.
(4A) Either:
a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5)The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
By letter dated 15 August 2016, the Applicant was invited by the Department of Immigration and Border Protection (as it was) (Department) to comment on the circumstance that the nomination submitted by the Sponsor had been refused, with the result that the Applicant’s visa application could not be approved. The invitation was sent to her then migration agent. No response was provided to the Department.
On 26 September 2016, the Delegate refused the visa applications on the basis that the nomination had not been approved, and the Applicant could therefore not meet cl 187.233 of the Regulations. The second and third applicants were therefore unable to meet the secondary criteria in cl 187.311 of the Regulations, which required them to be members of the family unit of a person who had satisfied the primary criteria.
BEFORE THE TRIBUNAL
The applicants applied to the Tribunal for review of the Delegate’s decision on 3 October 2016. As part of that application, the applicants gave details nominating another migration agent (Migration Agent) as their representative. A Form 956 appointing the Migration Agent as their authorised recipient was also submitted.
On 17 August 2018, an invitation to attend a hearing before the Tribunal on 14 September 2018 was sent to the applicants at the nominated email address for their Migration Agent. The invitation stated that the Tribunal had considered the material before it, but that it was unable to make a favourable decision based on that information alone.
On 22 August 2018, a completed response form was provided to the Tribunal by email from the Migration Agent. That response indicated that neither the applicants nor their Migration Agent would take part in the hearing before the Tribunal.
By email dated 22 August 2018, the Tribunal sought confirmation that the applicants did not wish to attend the scheduled hearing. Shortly afterwards, the Migration Agent responded:
Yes that is correct that has been the instruction from our client.
Should you require further information please do not hesitate to contact us.
On 17 September 2018, the Tribunal sent an invitation to comment on or respond to information (Invitation to Comment) to the applicants at their Migration Agent’s email address. The particulars of information noted that, on 14 September 2018, the Tribunal had affirmed the Department’s refusal of the Sponsor’s nomination. It was noted that this information was relevant because the requirements for the grant of the visas included that there be an approved nomination meeting the requirements of cl 187.233 of the Regulations for the position to which the application related. As there was no approved nomination, this would be a basis for affirming the Delegate’s decision under review. Comments or response were sought by 2 October 2018. The letter noted that, if a response was not received within the period allowed or as extended, a decision may be made without further action to obtain information from the Applicant. The letter noted that the applicants may also lose any entitlement they may otherwise have had to appear before the Tribunal. No response was received to the Invitation to Comment.
THE TRIBUNAL’S DECISION
On 3 October 2018, the Tribunal affirmed the Delegate’s decision.
The Tribunal set out the background to the matter before it, including the communications from the applicants’ Migration Agent and the lack of any response to the Invitation to Comment (at [1]-[9]).
The Tribunal observed that the issue before it was whether there was an approved nomination capable of meeting cl 187.233(3) of the Regulations. It found that there was not. The Tribunal found that, on the evidence before it, the position to which the application related was not the subject of an approved nomination at the time of the Tribunal’s decision. Accordingly, the Tribunal found that cl 187.233 of the Regulations was not met (at [18]).
The Tribunal observed that the applicants had only sought to satisfy the criteria for grant of the visas in the Direct Entry stream and that no claims had been made in respect of the other visa streams. As the requirements that needed to be met in seeking the visas had not been met, the Tribunal, found that it was required to affirm the decision under review (at [20]).
The Tribunal found that the secondary applicants were unable to meet cl 187.311 of the Regulations, as they were not members of the family unit of an applicant who had satisfied the primary criteria (at [20]).
For these reasons, the Tribunal affirmed the decision under review (at [21]).
PROCEEDINGS BEFORE THIS COURT
The applicants filed the Substantive Application commencing proceedings on 19 October 2018. The Substantive Application contains the following grounds of review:
1.I never declined the invitation to attend a hearing. Such was acted on my behalf by the migration agent who also failed to respond or comment or request an extension of time to the invitation of 2 October 2018.
2.The Tribunal failed to consider that on 24 August 2017 I applied for Regional Employer Nomination and I attach the evidence which was ignored by the Tribunal and until now there is no reply by the Department of Immigration concerning the new nomination submitted.
3.I am a victim at the hand of my migration agent and the Department and the Tribunal because important information such as a fresh application for nomination was lodged and ignored also the opportunity to attend the interview was not passed on to me.
The matter was listed for directions on 12 November 2018 at which time various procedural orders were made. On 5 July 2021, a further order was made setting the matter down for a show cause hearing under r 44.12 of the FCCA Rules. The show cause hearing was listed on 16 August 2021 and was to occur by video and/or audio link.
There was no appearance for the applicants at the scheduled hearing. Accordingly, the Court dismissed the Substantive Application under r 13.03C(1)(c) of the FCCA Rules.
On 25 August 2021, the applicants filed the Reinstatement Application.
At the hearing of the Reinstatement Application, the Applicant appeared by telephone. She explained that she was unable to attend the hearing in person as her daughter was unwell. However, she confirmed that she was agreeable to proceeding by telephone. The Court also confirmed that the Applicant was in possession of the Court Book and other relevant documents, and that she had received the first respondent’s written submissions. The scope and limitations of the Court’s powers in contrast to those of the Tribunal were explained to the Applicant.
Relevant principles
The power to set aside orders made in the absence of a party is now contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
However, the principles regarding reinstatement are fairly well settled. They have been considered in a number of recent decisions of this Court including in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 at [31]-[32] (Judge Given) (BQS17) and DFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 163 at [8] (Judge Humphreys).
The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]-[52].
The following considerations are generally considered:
(a)Whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;
(b)Any prejudice to the other party; and
(c)Whether the grounds identified in the substantive application have reasonably arguable prospects of success, when considered at a “reasonably impressionistic level”: see BQS17 at [52] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
Explanation for non-appearance and any delay
As stated above, the Substantive Application was dismissed for non-appearance on 16 August 2021. The Reinstatement Application was filed on 25 August 2021. I do not consider that the applicants’ attempt to seek reinstatement was attended by any meaningful delay. To the contrary, the application for reinstatement in this case was filed reasonably promptly.
The explanation for non-appearance on the previous occasion is provided in the Applicant’s affidavit dated 24 August 2021:
I was aware of my hearing at federal circuit courts on 16/08/2021 via video link at 12:15 pm I was ready for show cause hearing but for hearing I never got call from courts Microsoft team as per latter of any type of call. Even I try to call court registry from 12 pm to 1 :45 pm but nobody answers my call I am attaching to screen shots of my mobile phone confirming my call to court.
The Applicant was not cross-examined on this explanation. Essentially, her evidence suggests that there was some confusion regarding her attendance via video link which she sought to rectify by making several calls around the time of the hearing.
Although further detail in the affidavit evidence may have been desirable, I find this explanation to be a reasonably understandable one. This is particularly so when considered within the context of the numerous calls that the Applicant attempted to make around the time of the hearing and having regard to her promptness in seeking reinstatement. I find that these matters weigh in favour of the Applicant.
Prejudice
The first respondent does not identify any prejudice that is specific to this case.
It may be accepted that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17]. It may also be accepted that the absence of prejudice is neither sufficient nor capable of supporting a conclusion that an order for reinstatement should be made: Muzammil v Minister for Home Affairs [2019] FCCA 1564 at [46].
However, in the absence of any specific prejudice to the first respondent being claimed, I find this consideration to be neutral in the present case. In this regard, I follow the approach recently taken by Judge Given in BQS17 at [59].
Merits of the proposed grounds
As noted above, the Substantive Application contains three grounds of review.
Grounds 1 and 3
As noted above, grounds 1 and 3 of the Substantive Application contend that the applicants were victims of (inter alia) their Migration Agent because important information was not considered, the opportunity to attend the hearing before the Tribunal was not passed on to them, and the Migration Agent did not respond to the Invitation to Comment.
In response to these grounds, the first respondent has noted that no evidence has been put forward supporting the allegations. Further, even if it was established that the hearing invitation was declined without authorisation, the first respondent submitted that there is insufficient evidence to suggest that this constituted fraud affecting the Tribunal’s processes such that it was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 237 ALR 64 (SZFDE) at [51] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). Nor, the first respondent noted, is there fulsome evidence before the Court establishing the circumstances in which no response was made to the Invitation to Comment.
At the hearing, the Applicant confirmed that she was not contending that her Migration Agent had engaged in conduct that was fraudulent or dishonest. Rather, she was upset because she felt that her Migration Agent had provided her with negligent assistance and advice. Although the Applicant accepted that she had been given the invitation to appear before the Tribunal by her Migration Agent, she submitted that the significance of the hearing and the consequences of not attending had not been adequately explained.
However, the cases establish that mere negligence on the part of a representative, including a failure to inform, is incapable of demonstrating jurisdictional error: see SZFDE at [53] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 100 ALD 443 at [30]-[33].
I am therefore not persuaded that grounds 1 and 3 have reasonably arguable prospects of success.
Ground 2
Ground 2 contends that the Tribunal failed to consider that the Applicant applied for a new Regional Employer Nomination on 24 August 2017. Annexed to the Applicant’s affidavit dated 12 August 2018 is an acknowledgment of an application for a Regional Employer Nomination Subclass 187 visa that appears to have been sent from the Department by correspondence dated 24 August 2017.
However, as the first respondent submitted, the evidence before this Court does not indicate that this material was provided to the Tribunal. At the hearing, the Applicant accepted that this had not occurred. The Tribunal did not err in failing to consider the material in these circumstances.
Further, and in any event, the issue before the Tribunal was whether the Delegate’s decision to refuse the visa applications made on 2 December 2015 ought to be affirmed. The Tribunal was not required to determine a further visa application that had not yet been determined by any delegate of the first respondent. Nor was any new nomination able to be relied upon for the purposes of cl 187.233 of the Regulations. Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; 156 ALD 284 at [81]- [90] (Mortimer J, with Jagot and Bromberg JJ agreeing) confirms that it was the nomination identified in the visa applications, dated 2 December 2015, that needed to be approved in order for cl 187.233 of the Regulations to be met in respect of that application. That nomination was refused.
For these reasons, I am not persuaded that ground 2 has any arguable prospects of success.
Futility
The first respondent submits that it would be futile to remit the matter to the Tribunal for reconsideration, even if some error were able to identified in the Tribunal’s decision or procedure. Relief would not be granted in these circumstances: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [27]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
I accept the first respondent’s submissions in this regard. As explained above, cl 187.233 of the Regulations requires that the Applicant demonstrate that the nomination relied upon in her visa application has been approved at the time of the Tribunal’s decision. The nomination identified in her visa application was refused by a Delegate of the first respondent, and that decision was affirmed by the Tribunal. No judicial review of that decision of the Tribunal has been sought. If the matter was remitted to the Tribunal, the Tribunal would have no option but to affirm the decision under review.
I therefore accept that the grant of the relief sought in this case would be futile. It follows that even if I had accepted that the grounds of review were otherwise arguable, I would have found that an arguable case for the relief claimed had not been demonstrated, even at an impressionistic level. This is because the inevitable result of the Substantive Application in these circumstances would be dismissal on the basis of futility.
I do not consider that it would be an appropriate use of discretion to reinstate an application destined to be refused on this basis. Nor do I consider that such a course would result in any advantage to the applicants, who would incur additional costs pursuing an application that is unable to succeed.
Other matters
At the hearing of the Reinstatement Applicant, the Applicant sought to explain to the Court why it was important to her and her family that they be allowed to remain in Australia for an additional period of time. I accept this entirely.
However, as I sought to explain to the Applicant at the hearing, there are limitations to the Court’s powers on judicial review. The Court is not able to simply remake the Tribunal’s decision, or to grant the applicants visas. The Court is required to decide the matter before it according to law.
CONCLUSION
For the above reasons, I consider it appropriate to dismiss the Reinstatement Application.
I will hear the parties in relation to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 3 May 2022
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