KC v Minister for Immigration

[2020] FCCA 649

FEDERAL CIRCUIT COURT OF AUSTRALIA

KC & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 649

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – principal applicant not having an approved sponsor at the time of the Tribunal decision – no jurisdictional error – observations on futility.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 359A

Cases cited:

Minister for Immigration v Lay Lat (2006) 151 FCR 214
Minister for Immigration v Li (2013) 297 ALR 225

SZCIJ v Minister for Immigration [2006] FCAFC 62

First Applicant: DIPESH KC

Second Applicant: MANILA GHIMIRE KC

Third Applicant: YOKTA KC

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2167 of 2017

Judgment of: Judge Driver

Hearing dates: 20, 23 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

The First Applicant appeared in person by telephone

Solicitors for the Respondents: Mr J Pipolo of Mills Oakley appeared by telephone

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 11 July 2017 is dismissed.

3. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2167 of 2017

DIPESH KC

First Applicant

MANILA GHIMIRE KC

Second Applicant

YOKTA KC

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 21 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant’s subclass 457 temporary work visa (visa).  The principal visa applicant was Mr Dipesh KC (Mr KC).  The other visa applicants were his wife and child. This matter was initially docketed to Judge Barnes.  However, at a callover on 11 March 2019, Judge Barnes transferred the matter to my docket. 

2. Background facts relating to this matter are set out in the Minister’s submissions filed on 12 March 2020.   

3. On 11 March 2015, the applicants applied for subclass 457 visas on the basis of the nomination of Mr KC by an approved sponsor, No 1 Pest Control Pty Ltd (sponsor) for the position of accountant.[1]

   [1] Court Book (CB) 1-13

4. On 23 June 2015, the Minister’s Department refused the nomination application.[2]

   [2] CB 72

5. On 22 April 2015, the applicants were invited to comment on, or respond to, the information that the sponsor did not have an approved nomination in respect of the applicant.[3]

   [3] CB 62-65

6. On 16 July 2015, the applicants requested that the delegate await the outcome of the sponsor’s application for review in respect of the nomination refusal.[4] On 24 July 2015, the Minister’s Department responded that the timeframe for a response had lapsed and a decision would be made on the application.[5]

   [4] CB 66-67

   [5] CB 66

7. On 5 August 2015, the delegate refused to grant the visas on the basis that Mr KC was not the subject of an approved nomination as required by clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The second and third applicants’ visa applications were also refused.[6]

   [6] CB 73

The Tribunal

1. On 4 March 2016, Mr KC applied to the Tribunal for review of the delegate’s decision.[7]

   [7] CB 84-94

2. The applicants attended a hearing before the Tribunal on 3 November 2016[8] and informed the Tribunal that Mr KC had a new sponsor, Australian Harvard International, and requested time to provide information in relation to a new nomination application.[9]

   [8] CB 113

   [9] CB 160 [12], [14]

3. The Tribunal (differently constituted) affirmed the decision under review in respect of the nomination refusal in respect of the sponsor on 8 November 2016.[10]

   [10] CB 122-123

4. On 5 June 2017, the Tribunal invited Mr KC to comment on or respond to information pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act). The particulars of information were that the nomination application made by Australian Harvard International had been refused on 2 June 2017.[11]

   [11] CB 122-123

5. On 16 June 2017, Mr KC wrote to the Tribunal indicating that his new sponsor had applied to the Tribunal for review of the nomination refusal and asked the Tribunal to delay making a decision. This request was refused.[12] The Tribunal found that the applicant had been on notice since the visa refusal that he needed to be the subject of an approved nomination. The Tribunal found that awaiting the outcome of the review for the second nomination would be contrary to the efficient manner in which the Tribunal is required to conduct the review. The Tribunal noted that Mr KC had already been given the opportunity to obtain a second nomination from a second sponsor despite the first sponsor’s nomination refusal and unsuccessful review of that nomination, and that the second nomination application took “some 6 months” to process. In the circumstances, the Tribunal found that Mr KC had a fair opportunity to become the subject of an approved nomination and decided not to delay making its decision.[13]

   [12] CB 160 [17]

   [13] CB 160 [18]

6. On 21 June 2017, the Tribunal affirmed the decision under review on the same basis as the delegate, namely the applicant’s failure to meet clause 457.223(4)(a) as he was not the subject of an approved nomination.[14]

   [14] CB 160 [18]-[21]

7. These proceedings began with a show cause application filed on 11 July 2017.  There are three grounds in that application: 

   1. The Respondent made a jurisdictional error by not taking into consideration relevant evidence submitted before the tribunal, therefore refusing to give weight to evidence by me and thereby make erroneous findings and mistaken findings and mistaken conclusions.

   2.  The Respondent denied ME a Natural Justice

   3. The Respondent misinterpreted the law in relation to the jurisdictional issue.

   (errors in original)

8. Mr KC continues to rely upon that application.  It is supported by a short affidavit filed with it, which I received as a submission.  I have before me as evidence the court book filed on 28 August 2017. 

9. The case came before me for a final hearing on 20 March 2020.  At that time, Mr KC sought an adjournment on the basis that he was struggling psychologically.  He referred to a psychologist’s report, which he had attempted to file, and which the registry had declined to receive.  I adjourned the hearing until today and requested that Mr KC provide the psychologist’s report to my chambers and the Minister’s solicitor.  That was done.  There are, in fact, two reports:  a principal report and a supplementary report by Dr Ghana Shyam Chapagain. 

10. In the first report dated 6 March 2020, the doctor refers to Mr KC’s general presentation.  The only psychological problem identified concerned the current proceedings and, more generally, the lack of certainty concerning the visa status of Mr KC and his family.  This is confirmed in the supplementary report dated 16 March 2020. 

11. I discussed the report with Mr KC.  He sought a further adjournment.  This was put on the basis that an adjournment would allow him to deal with his psychological symptoms and seek legal assistance.  I pointed out to Mr KC that this case had been on foot since July 2017.  He has to this point not obtained any legal assistance.  Further, his psychological functioning appears normal, apart from anxiety about this case.  It seemed to me that nothing would be gained by deferring the proceeding, and indeed, it would probably prolong Mr KC’s symptoms.  I refused the adjournment request.

12. Mr KC told me that he had read the Minister’s submissions but did not understand them.  Because of that, I called on the Minister’s solicitor to explain his submissions.  I then invited Mr KC to reply.  He again sought an adjournment, which I refused.  In my view, the judicial review application is doomed to fail. 

13. Mr KC’s lack of an employment sponsor was an insuperable problem.  Mr KC had purported to change sponsors during the currency of his visa application.  I have real doubt whether that was possible, but the Tribunal permitted it.  The replacement sponsor, however, was refused.  Mr KC was therefore left at the time of the Tribunal decision without a sponsor. 

14. In the circumstances, it is hardly surprising that the decision of the delegate was affirmed.  There is a question whether the Tribunal should have awaited the outcome of an application for review of the second sponsorship decision.  The Tribunal gives cogent reasons for its decision not to further delay.[15]

    [15] CB 160

15. The Tribunal’s reasons provide a sound basis for the Tribunal to proceed in the manner that it did and the Tribunal’s approach does not reveal any unreasonableness. Its reasons do not lack an evident and intelligible justification.[16] The Tribunal is given the power and discretion to determine whether to adjourn proceedings and the law requires that its exercise be reasonable.[17] The Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. It is acceptable for the Tribunal to decide, in an appropriate case, that “enough is enough”.[18]

    [16] Minister for Immigration v Li (2013) 297 ALR 225 at [47] per Hayne, Kiefel and Bell JJ

    [17] Minister for Immigration v Li op. cit.  at [76] per Hayne, Kiefel and Bell JJ

    [18] Minister for Immigration Li op. cit. at [81] per Hayne, Kiefel and Bell JJ

16. I otherwise agree with the Minister’s submissions concerning the grounds of review.  

Ground 1

1. Ground 1 states that the Tribunal failed to take into consideration “relevant evidence” that was submitted before the Tribunal and “refused to give weight” to the applicant’s evidence. No particulars are provided to identify the “relevant evidence” that is the subject of this contention. This ground does no more than to dispute the weight the Tribunal afforded to evidence, which is a matter of fact for the Tribunal.

Grounds 2 and 3

1. Grounds 2 and 3 make a bland assertion that the Tribunal denied the applicant natural justice and misinterpreted the law in relation to the unspecified “jurisdictional issue”. Again, no particulars are provided to make these bare assertions meaningful.

2. The Tribunal is not required to afford an applicant common law natural justice. An applicant is entitled only to the rights afforded to them under Part 5 of the Migration Act.[19]

   [19] Minister for Immigration v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration [2006] FCAFC 62

Futility

1. Even if jurisdictional error was established (which it is not), I would refuse relief in the exercise of discretion on the basis that it would be futile to remit the matter to the Tribunal.

2. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) which removed subclass 457 from the class of skilled visas. As such, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. It was a requirement of the grant of a subclass 457 visa that the nomination of the occupation in relation to the applicant had been approved under s.140GB of the Migration Act, and that nomination had not ceased as provided for in regulation 2.75 to the Regulations.[20]

   [20] Clause 457.223(4)(a)

3. Thus, even if some error by the Tribunal could be identified, remittal to the Tribunal would be futile. 

4. Mr KC is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  That decision is therefore a privative clause decision, and the application must be dismissed.  I will so order.

5. I will order that the application filed on 11 July 2017 is dismissed.

6. Mr KC and his family are currently in Australia on bridging visas.  In present circumstances, travel between Nepal and Australia is effectively impossible.  It would also be most unwise for Mr KC and his family to be taken into immigration detention in the face of the coronavirus pandemic.  In the circumstances, it would seem highly desirable for their bridging visas to be extended during the current pandemic.  That is a matter for the Minister to consider and is beyond the scope of this proceeding.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,000.  That is significantly below the amount prescribed under the Court scale and Rules.  Mr KC did not wish to be heard on costs.

8. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 26 March 2020