Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 187
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 187
File number: MLG 778 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2022 Catchwords: MIGRATION – Temporary Work (Skilled) (Subclass 457) visa – whether the Tribunal misconstrued or misinterpreted s 338(2)(d)(i) of the Migration Act 1958 (Cth) – whether the Tribunal was correct in finding that it did not have jurisdiction in relation to this matter – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal was obliged to invite the applications to attend a hearing in this matter – whether the conduct of the applicants’ migration agent amounted to “fraud” on the Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 338, 360, 476
Migration Regulations 1994 (Cth), cll 457.223 and 457.321 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 16 March 2022 Place: Perth Applicants: First and second applicants, in person Counsel for the First Respondent: Ms S Wright Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 778 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVINDER KAUR
First Applicant
NAVDEEP SINGH
Second Applicant
BALDEEP KAUR
Third Applicant
ARYAN SINGH
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 MARCH 2022
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 first applicant is a citizen of India (Court Book (“CB”) 2). The second applicant is her husband (CB 3). The third and fourth applicants are their daughter and son respectively
(CB 4-5). Both children are citizens of India (CB 3-5) but were born in Victoria, Australia (CB 16-17).
On 30 March 2016, the first applicant applied for a Temporary Work (Skilled) (Class UC) (Subclass 457) visa (the “visa”) (CB 1-15). The second, third and fourth applicants were all included in that application as members of the first applicant’s family unit (CB 3-5).
In her application, the first applicant listed “Joban Hair Styling Pty Ltd” as her sponsoring employer (CB 11). With her visa application, the first applicant provided identity documents for the applicants (CB 16-26), medical insurance documents (CB 27-38) and educational records (CB 39-46).
On 30 March 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicants to provide more information in relation to the visa application (CB 52-71).
On 27 April 2016, the applicants, through their registered migration agent, provided additional documents to the Department, comprising bank records, a Certificate of Registration-Registered Premises for the sponsor company, identity documents for the applicants and an IELTS test report form for the second applicant (CB 73-84).
On 3 June 2016, the Department wrote to the applicant (through her representative), inviting her to comment on the fact that the sponsor did not have an approved nomination for her at that time. The Department informed the applicant that, as a result, her visa application was unlikely to be successful (CB 87-89).
On 12 August 2016, the first applicant wrote to the Department and asked about the status of the associated applications for sponsorship and nomination approval. She claimed that her representative had not received any correspondence from the Department about the sponsorship and nomination applications prior to them being finalised (CB 90-91).
The Department responded on 17 August 2016 and advised the first applicant that correspondence relating to the sponsorship and nomination applications had been sent to her representative at the address provided for the purposes of receiving documents (CB 92-93). The Department noted that a request for information concerning the visa application had been sent to the first applicant’s representative on 3 June 2016 to the same email address and that, to date, the representative had not responded to any of the correspondence sent by the Department (CB 92).
On 19 August 2016, the first applicant again contacted the Department by email advising that her agent had not advised her “of any information request”. She asked the Department to provide her with correspondence regarding the “finalised files” and any information the Department had requested so that she could provide it as soon as possible (CB 94-95).
On 21 August 2016, the applicants’ representative notified the Department that his client had “amended and lodged the [standard business sponsor] and the nomination application for Hoban Hair [S]tyling Pty Ltd” as discussed and requested that the Department “[p]lease await the decision on these applications” (CB 96).
On 23 August 2016, the Department sent the first applicant a copy of the “request for further information” that had been sent to her representative on 3 June 2016 (CB 97-99).
On 6 September 2016, the Department again asked the applicants to provide further information (CB 102-108). The Department again asked the applicants to provide further information on 15 November 2016 (CB 111-117).
On 15 November 2016, the Department also asked the first applicant to comment on information relating to her visa application (CB 120-123). She was given 28 days within which to comment. In that correspondence, the Department advised that (CB 120):
One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. Your prospective employer, JOBAN HAIR STYLING PTY. LTD., does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.
No response was provided by the applicants (or their representative).
On 21 December 2016, a delegate of the Minister refused to grant the applicants the visas (CB 129-132). The delegate was not satisfied that the first applicant met cl 457.223(4)(a) of Schedule 2 of the Regulations because there was no approved nomination in place for her (CB 130). The delegate also found that the second, third and fourth applicants did not meet the primary criteria for the grant of the visas and, having assessed them against the secondary criteria, found that they did not meet cl 457.321 of Schedule 2 of the Regulations (that is, they were not family members of a person who was the holder of a Subclass 457 visa) (CB 131).
On 11 January 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 133-135).
On 3 February 2017, the Tribunal wrote to the first applicant and invited her to comment on the validity of the applicants’ applications (CB 139-142). Specifically, the Tribunal advised:
For you to make a valid application for review in accordance with s.338(2)(d) of the Migration Act, at the time the review application is lodged, either:
•Your sponsor is an approved sponsor with either an approved nomination or pending nomination application with the Department in relation to you, (s.338(2)(d)(i) of the Migration Act);
or
•Your sponsor has a pending application for review of a decision not to approve the sponsorship application or nomination application in relation to you, (s.338(2)(d)(ii) of the Migration Act).
On 14 February 2017, the first applicant sent an email to the Tribunal advising that she had “already applied for the sponsorship and nomination” (CB 143-144). Attached to that email was a copy of a letter from the Department to the sponsor acknowledging receipt of an application for sponsorship (CB 145-147) and copies of identity documents for the applicants (CB 148-156).
On 23 March 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 159-161). Relevantly (as discussed below), the Tribunal determined that it did not have jurisdiction to hear the matter as the delegate's decision was not a reviewable decision in accordance with s 338(2)(d) of the Migration Act 1958 (Cth) (the “Act”)
(CB 161 at [12]).
On 18 April 2017, the applicants applied to this Court for judicial review of the Tribunal’s decision. That application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is three pages long and spans 13 paragraphs.
In full, the Tribunal’s decision provides:
1.Applications were made to the tribunal on 11 January 2017 for review of a decision made by the department on 21 December 2016 to refuse the applicants Class UC subclass 457 (Temporary Work (Skilled)) visas. For the following reasons, the tribunal has found that it has no jurisdiction in respect of these applications.
2.The tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the tribunal and the circumstances in which they are reviewable.
3.A decision to refuse a subclass 457 visa is reviewable under s.338(2) if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.
4.However, an application is not reviewable in the circumstances of this case because the applicants were not sponsored by an approved sponsor at the time the application to review the decisions to refuse to grant the visas were made. In addition, at the time the applications to review the decisions to refuse to grant the visa were made, no review of any sponsorship decision was pending.
5.Movement records of the Department indicate that the applicants were within the migration zone when the visa applications were lodged and were not in immigration clearance nor had been refused immigration clearance. A subclass 457 visa is capable of being granted to an applicant onshore. The jurisdictional provisions of s.338 (a) (b) and (c) accordingly apply to the applicants. The applicants are therefore required to meet s.338(2)(d) in order for the tribunal's jurisdiction to be engaged.
6.On 3 February 2017, the tribunal wrote to the applicants to invite them to comment on its preliminary view that the review applications were not valid because, at the time there were lodged, the applicants were not sponsored by an approved sponsor [as prescribed by cl. 338(2)(d)(i)] nor there was an application for review of a decision not to approve the sponsor under s.140E [as prescribed by cl. 338(2)(d)(ii)].
7.The applicants were advised that any comments made in response to the issue of validity should be received by 17 February 2017 and would be taken into account by a tribunal Member, who would determine whether the review applications have been validly lodged.
8.On 14 February 2017, the first named applicant submitted copies of sponsorship and nomination application acknowledgment letters issued by the Department on 10 January 2017.
9.At the time the applicants lodged the visa review applications with this tribunal (11 January 2017), the applicants’ prospective employer was not an “approved sponsor” as required by s.338 (2)(d)(i). I accept that, at the time the applicants lodged the visa review applications with this tribunal; there was a pending sponsorship application.
10.The tribunal finds that the applicants' circumstances do not fall within s.338(2)(d)(i) as there was no approved sponsor at the time the applicants made their review application on 11 January 2017. While there was a pending nomination with the Department at that time, the application by the applicants' proposed employer, to be approved as a sponsor was also pending and had not been approved. Accordingly, the tribunal finds that the applicants do not meet s.338(2)(d)(i).
11.Furthermore, the tribunal finds that no jurisdiction arises under s.338(2)(d)(ii). This is because at the time that the visa review applications were made on 11 January 2017, there was no pending review of any decision to refuse the sponsor seeking to nominate the applicants, whether this was a review of a decision made under s.140E to refuse standard business sponsorship, or a decision made under s.140GB to refuse a nomination made by a standard business sponsor relating to the primary applicant.
12.As the delegate's decision is not reviewable in these circumstances it follows that the applications for review were not properly made and the tribunal does not have jurisdiction in this matter.
PROCEEDINGS IN THIS COURT
The applicants filed their application for judicial review in this Court on 18 April 2017. That application contains five “grounds of review”, with particulars, as follows (without alteration):
1.I am the applicant, and the second, third and fourth applicants are my partner, daughter and a son.
2.I and my family came to Australia in 2008 as the holder of student visa. I completed my studies in hairdressing and started working as a hairdresser in the salon who sponsored me on 457 visa.
3. The Tribunal erred in misconstruing and interpreting clause 457 s.338(2)(d)(i).
Particulars
a.Tribunal erred by not assessing and considering the ability of second applicant to meet the primary criteria for the subclass 457 visa.
b.Tribunal erred in not considering whether the secondary applicant has made any claims against the primary criteria for the grant of subclass 457 visa pursuant to sch.2 of the regulation.
c.The tribunal failed to independently assessed whether the secondary applicants satisfies s.338(2)(d)(i).
That the decision of the tribunal is affected by the jurisdictional error on the basis of that no jurisdiction arises s.338(2)(d)(ii).
The tribunal failed to accord to the applicants procedural fairness and natural justice as no hearing was organised to provide the evidences in support of my application.
For the sake of clarity, the Court will refer to the additional, unnumbered grounds of review as grounds 4 and 5.
In support of the application for review, the first applicant affirmed an affidavit on 12 April 2017 (filed on 18 April 2017). That affidavit states (without alteration):
1.I AM NOT SATISFIED WITH THE DECISION MADE BY AAT/DIBP ON MY CASE.
2.SO, THAT'S THE REASON I WISH TO APPLY IN FEDERAL CIRCUIT COURT OF AUSTRALIA FOR THE RIGHT REVIEW OF MY APPLICATION
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicants.
The materials before the Court thus include the judicial review application and supporting affidavit filed by the applicants on 18 April 2017, a Court Book numbering 161 pages and an Amended Supplementary Court Book numbering 5 pages (marked together as Exhibit 1) and written submissions filed by the Minister on 13 December 2017.
At the hearing before this Court, the first and second applicants appeared without legal representation. The first applicant spoke on behalf of the applicants. The Court confirmed with her that she had received a copy of the Court Book, the Amended Supplementary Court Book and the Minister’s written submissions. An interpreter in the Punjabi and English languages was also made available to assist the applicants.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, 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 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 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 seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against that background, the first applicant explained that her primary concern was that she had not been given an opportunity to attend a hearing before the Tribunal. She also indicated, in effect, that her migration agent had not done what was required of him or had failed to do what the applicants had asked him to do.
CONSIDERATION
Grounds 1 and 2
Grounds 1 and 2 provide:
1.I am the applicant, and the second, third and fourth applicants are my partner, daughter and a son.
2.I and my family came to Australia in 2008 as the holder of student visa. I completed my studies in hairdressing and started working as a hairdresser in the salon who sponsored me on 457 visa.
These grounds simply outline the composition of the family unit and provide some factual background. They do not raise any valid grounds of review.
No error arises in relation to “grounds” 1 or 2.
Grounds 3 and 4
Legislation
Grounds 3 and 4 take issue with the Tribunal’s interpretation of ss 338(2)(d)(i) and 338(2)(d)(ii) of the Act.
Before considering these grounds, it is useful to set out the relevant legislative provisions.
Section 338(2)(d) of the Act (as it appeared at 23 March 2017, being the date of the Tribunal’s decision) provided:
Division 2—Part 5‑reviewable decisions
338 Definition of Part 5‑reviewable decision
…
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
…
(d)where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
Ground 3
Ground 3 provides:
3. The Tribunal erred in misconstruing and interpreting clause 457 s.338(2)(d)(i).
Particulars
a.Tribunal erred by not assessing and considering the ability of second applicant to meet the primary criteria for the subclass 457 visa.
b.Tribunal erred in not considering whether the secondary applicant has made any claims against the primary criteria for the grant of subclass 457 visa pursuant to sch.2 of the regulation.
c.The tribunal failed to independently assessed whether the secondary applicants satisfies s.338(2)(d)(i).
To the extent that the applicants claim that the Tribunal should have assessed the ability of the second applicant to meet the primary criteria for the grant of the visa (particular a) or that the Tribunal should have considered whether the second applicant made any claims against the primary criteria for the grant of the visa (particular b), the Court notes the Minister’s submissions that:
(a)there is no evidence to suggest that the second applicant made any independent claims to show that he could satisfy the primary criteria for the grant of the visa; and
(b)the delegate’s decision notes that no such claim had been made by the second applicant.
The Court does not disagree with the Minister in this regard but finds that it was irrelevant for the Tribunal in the circumstances of this matter.
Here, the Tribunal found that it did not have jurisdiction in the matter. In the context of the matter, it was therefore not necessary for the Tribunal to consider whether the first or the second applicant satisfied the primary criteria for the grant of the visa. The sole issue for the Tribunal was whether it had jurisdiction to consider the matter as a whole. Once a determination was made that the Tribunal did not have that jurisdiction, the Tribunal was not required to consider the matter further, in relation to either the first applicant or the second applicant.
To the extent that the applicants allege that the Tribunal failed to assess whether the secondary applicants satisfied s 338(2)(d)(i) of the Act (particular c), the Court notes that the first applicant was the primary applicant for the visa. There is no evidence before this Court to suggest that the second applicant was “sponsored by an approved sponsor at the time the application” as required by s 338(2)(d)(i) of the Act. Nor did the applicants, in the response to the invitation to comment letter (or at any time, either before the Department or the Tribunal), provide any evidence or make any claim suggesting that the second applicant did or could satisfy s 338(2)(d)(i) of the Act.
No error arises in relation to ground 3.
Ground 4
Ground 4 states:
That the decision of the tribunal is affected by the jurisdictional error on the basis of that no jurisdiction arises s.338(2)(d)(ii).
Arguably this ground of review that the applicants take issue with the Tribunal’s core fidning that it had no jurisdiction in relation to this matter pursuant to s 338(2)(d)(ii) of the Act.
In that regard, the Tribunal found as follows:
11.Furthermore, the tribunal finds that no jurisdiction arises under s.338(2)(d)(ii). This is because at the time that the visa review applications were made on 11 January 2017, there was no pending review of any decision to refuse the sponsor seeking to nominate the applicants, whether this was a review of a decision made under s.140E to refuse standard business sponsorship, or a decision made under s.140GB to refuse a nomination made by a standard business sponsor relating to the primary applicant.
12.As the delegate's decision is not reviewable in these circumstances it follows that the applications for review were not properly made and the tribunal does not have jurisdiction in this matter.
Section 338(2)(d) of the Act contained only two subsections at the time of the Tribunal’s decision. Those sections are separated by the word “or”. That means that, in order for the Tribunal to have jurisdiction in this matter, the first applicant had to have satisfied either ss 338(2)(d)(i) or 338(2)(d)(ii) of the Act.
Specifically, the first applicant was required to be “sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made” (to satisfy s 338(2)(d)(i) of the Act). In circumstances where she was not (as is the case here), there needed to be “an application for review of a decision not to approve the sponsor” which had been made, but, “at the time the application to review the decision to refuse to grant the visa [was] made, review of the sponsorship decision” was required to be pending (to satisfy s 338(2)(d)(ii) of the Act).
Here, there was no evidence before the Tribunal (or this Court) to suggest that an application was lodged with the Tribunal to review a decision not to approve the sponsor.
The applicants’ representative notified the Department on 21 August 2016 that the sponsor had “amended and lodged the [standard business sponsor] and the nomination application” and quoted file numbers for the standard business sponsor as EGOCA41SKX and for the nomination as EGOCA4GDIQ (CB 96).
The applicants did not respond to an invitation to comment letter sent to them by the Department on 15 November 2016 (CB 120-123) and, on 21 December 2016, a delegate of the Minister refused to grant the applicants the visas (CB 129-132).
It appears, from the evidence before the Court, that the sponsor lodged new sponsorship and nomination applications on 10 January 2017 with a relevant file reference noted as EGODIHMGEM (CB 145-147). This is notably different to those referenced by the applicants’ representative in August 2016.
The Tribunal accepted that those new applications had been made on 10 January 2017 and were pending at the time of the applicants’ application to the Tribunal to review their visa refusals (on 11 January 2017). However, that is not what the legislation required.
The legislation required that an application for review of a decision to refuse (that is, not to approve) the sponsor had been made and that, at the time the applicants lodged their application to review the decision to refuse the visas, the application for review in relation to the sponsorship decision be pending.
There is no evidence before the Court regarding any decision being made in relation to the new sponsorship and nomination applications, or any application for review of those decisions being filed with the Tribunal. However, the Court notes that, in order for s 338(2)(d)(ii) of the Act to be satisfied, an application for review of those decisions would also have needed to be pending at the time the applicants filed their application for review with the Tribunal. Given the applications were only lodged one day prior to the applicants filing their application for review of the visa refusals, this is unlikely to be possible.
The Court is satisfied that the first applicant was not sponsored by an approved sponsor at the time the applicants lodged there application for review with the Tribunal. The Court is also satisfied that there was no pending application for review of a decision not to approve the sponsor at the time the applicants lodged their application for review.
The Tribunal thus did not have jurisdiction to review the decision pursuant to ss 338(2)(d)(i) or 338(2)(d)(ii) of the Act.
No error arises in relation to ground 4.
Ground 5
Ground 5 provides:
The tribunal failed to accord to the applicants procedural fairness and natural justice as no hearing was organised to provide the evidences in support of my application.
Section 360 of the Act requires that the Tribunal invite an applicant to appear before it to give evidence and present arguments. The Tribunal here did not do so. However, there is no requirement to do so where there is no valid application before the Tribunal.
As outlined by the Federal Court in SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 (“SZNZL”) at [46]:
46.The Minister contends that the Tribunal has obligations of procedural fairness in the course of conducting a review, which are exhaustively codified by the Act in Div 4 of Pt 7; but no review is commenced unless an application is made which engages the Tribunal’s jurisdiction. While the Tribunal needs to form a view about whether it has jurisdiction in each case, it cannot conclusively determine its own jurisdiction and its opinion on the issue has no legal force in itself. Thus no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction. The issue before the Court is simply whether the Tribunal’s conclusion was right, not how it arrived at that conclusion.
This issue was recently canvassed by this Court in WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 (“WZAVO”) at [82], wherein the Court determined:
82Here, there was no application before the Tribunal that engaged the Tribunal’s jurisdiction. Once it was clear that the application was filed late, the Tribunal lacked a valid application about which any further determinations could be made. Hence, as per SZNZL, no issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it had jurisdiction. The only issue is whether the Tribunal’s conclusion was right, not how it arrived at that conclusion. Here, for the reasons detailed above, the Tribunal’s decision in relation to whether it had jurisdiction was correct.
Similar reasoning applies here. Once the Tribunal was satisfied that the first applicant’s sponsor was not an “approved sponsor” and that the sponsor had not made any separate application to the Tribunal for review of the decision not to approve the sponsorship or nomination applications, the Tribunal lacked a valid application about which any further determinations needed to be made.
As was the case in WZAVO and SZNZL, no issues of procedural fairness arise in relation to the Tribunal’s consideration of whether it had jurisdiction in this matter.
In relation to the issue of any common law guarantee of natural justice, the common law rules of procedural fairness only require that the Tribunal draw to the applicant’s attention the critical issue upon which a decision is likely to turn and provide the applicant with an opportunity to respond accordingly: Kioa v West (1985) 159 CLR 550 at 584 and 587.
Here, the Tribunal invited the first applicant to comment on the validity of the applicants’ applications for review on 3 February 2017. That request was sent via email to the first applicant (CB 139-142). That invitation stated as follows (CB 141):
I am of the preliminary view, subject to your comments, that your application is not a valid application. This is because it appears that at the time your application for review was lodged with the Tribunal your sponsor was not an “approved sponsor” as defined in the Migration Act and your sponsor had not made a separate application to the Tribunal applying for review of a decision not to approve the sponsorship or nomination application. However, this is a matter that must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 17 February 2017. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
The first applicant responded to the invitation via email on 14 February 2017. In her email to the Tribunal, the first applicant stated:
I am writing in regards to my merit review (Case number: 1700546) application for 457 visa. I would like to inform you that, we have already applied for the sponsorship and nomination application.
For more information, I am attaching the acknowledgement of sponsorship and nomination application.
In case you need more information please feel free to contact me.
Attached to that email was a letter from the Department to the sponsoring employer dated 10 January 2017 acknowledging receipt of new sponsorship and nomination applications (CB 145-147).
As outlined above (in the Court’s consideration of ground 4), this response did not assist the applicants. As stated above, the legislation required that an application for review of a decision to refuse the sponsor be made and, at the time the applicants lodged their application for review of the decision to refuse the visas, the application for review in relation to the sponsorship decision needed to be pending.
That was not the case here.
In the circumstances, the Court is satisfied that the applicants were afforded procedural fairness as was required in the circumstances of the application and that there was no obligation on the part of the Tribunal to invite the applicants to attend a hearing in this matter.
No error arises in relation to ground 5.
First applicant’s affidavit
For completeness, the Court will address the comments made by the first applicant in the affidavit which accompanied the application for judicial review.
The first applicant’s affidavit states:
1.I AM NOT SATISFIED WITH THE DECISION MADE BY AAT/DIBP ON MY CASE.
2.SO, THAT'S THE REASON I WISH TO APPLY IN FEDERAL CIRCUIT COURT OF AUSTRALIA FOR THE RIGHT REVIEW OF MY APPLICATION
To the extent that the applicants raise any issue with the Department or the decision made by the delegate, this Court has no jurisdiction to review the delegate’s decision: ss 476(2) and 476(4) of the Act. Further, any errors in the delegate’s decision would be “cured” by the Tribunal’s decision on review: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
To the extent that the first applicant references the Tribunals decision, she arguably only expresses disagreement with the Tribunal’s ultimate conclusion. Disagreement, however strong, does not amount to a claim or suggestion of jurisdictional error this Court can assist with.
No error arises in this regard.
OTHER
In oral submissions to the Court, the first applicant seemed to argue that her migration agent had not done what was required of him or had not advised the applicants of what was required of them. This, she suggested, is why she wanted a hearing before the Tribunal.
While Court is sympathetic to the concerns of all applicants who express frustration with what they perceive to be poor migration advice, the concerns raised here do not assist the applicant in relation to the issue of jurisdictional error. There is nothing, for example, that leads the Court to conclude here that the agent’s conduct amounts to a fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
In so far as the first applicant has concerns about the advice she was given by her agent, the Court refers her to the services of the Office of Migration Agents Registration Authority. Unlike this Court, that entity is legislatively empowered to investigate and address migration services and service providers in Australia.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 18 April 2017 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2022
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