Khan v Minister for Immigration
[2020] FCCA 932
•22 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 932 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination Visa (Class RN) (Subclass 187) – whether the Tribunal erred in its decision to confirm the decision of the Delegate of the Minister for Home Affairs – whether the Tribunal failed to realise that the Department of Home Affairs did not advise of the withdrawal of the nomination – whether the Tribunal failed to realise a lack of procedural fairness – whether jurisdictional error made out – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss, 65, 66, 359AA, 476 Migration Regulations 1994 (Cth), cl 187.212 of Schedule 2, cl 187.223, cl 187.233 |
| Cases cited: DFQ17 v Minister Immigration and Border Protection (2019) FCAFC 64 Minister for Immigration v Li (2013) 297 ALR 225 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 Singh v Minister for Immigration and Border Protection [2017] 253 FCR 267 |
| Applicant: | REZWANUL KABIR KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2025 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 23 April 2020 |
| Date of Last Submission: | 23 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 22 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Solicitors for the Applicant: | M S Nair & Co |
| Counsel for the Respondents: | Mr Wong |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $6000
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2025 of 2019
| REZWANUL KABIR KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND ANOR |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The applicant is currently resident in Australia.
On 20 July 2017, the applicant applied for a Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa, in the direct entry stream.
The applicant’s nominated position was that of a Café and Restaurant Manager at Mayfield Café and Restaurant in Mayfield, Tasmania.
On 22 August 2018, officers from the Department of Home Affairs (“the Department”) attended the nominated business address for the applicant’s sponsor. The business was closed. Further enquiries indicated that the sponsoring business was deregistered on 24 September 2018.
The Court Book indicates that on 13 February 2019, the applicant was invited by the Department to comment on this information. The notification was sent by email to the applicant’s authorised recipient, Mr Parul Nanda, at his provided email address.
On 3 April 2019, a delegate of the Minister for Home Affairs (“the delegate”), refused to grant the applicant a Regional Employer Nomination (Class RN) (Subclass 187) visa, because the position could not be provided to the applicant as required by cl 187.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). That clause specified that the nominator must provide the employment in the corresponding nomination.
The applicant lodged a review application to the Administrative Appeals Tribunal (“the Tribunal”) on 4 April 2019.
In a decision dated 16 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal decision
The applicant attended a hearing before the Tribunal on 9 July 2019. At that hearing, the Tribunal invited the applicant to comment on information pursuant to s 359AA of the Migration Act 1958 (Cth) (“the Act”), which indicated his nomination had been withdrawn and that the Australian Securities and Investments Commission (“ASIC”) register indicated the nominator was deregistered on 24 September 2018.
The matter was adjourned and the applicant was given the opportunity to respond in writing.
On 9 July 2019, the applicant provided a written submission in which he asserted that he had not been validly notified of the delegate’s decision pursuant to s 66(2)(d)(ii) of the Act. The applicant did not comment on, or respond to, the information put to him, pursuant to s 359AA of the Act.
In paragraph 9 of its decision, the Tribunal noted that the applicant asserted that he was not aware the company that had nominated him, had been deregistered. The applicant’s authorised representative told the Tribunal they had heard that the nomination had been withdrawn, but that they had not received any correspondence from the Department regarding this. If the applicant had been informed of the withdrawal of the nomination, he would have withdrawn his application for Regional Employer (Class RN) (Subclass 187) visa and lodged another.
At paragraph 19 of its decision, the Tribunal acknowledged that the Department did not inform the applicant that the nomination had been withdrawn, however, this was not a matter over which the Tribunal had any control.
At paragraph 20 of its decision, the Tribunal noted the applicant’s contention, regarding the notification of non-compliance by the Department, pursuant to s 66(2)(d)(ii) of the Act. The Tribunal noted that it did not consider that an error in the notification of the primary decision, invalidated the visa application. The Tribunal was satisfied that the applicant made a valid application to the Tribunal for a review of the decision to refuse the visa. Therefore, unless the application was withdrawn, the Tribunal was required to conduct a review.
Accordingly, as the Tribunal was not satisfied that cl 187.233(3) of the Regulations was satisfied, the applicant’s visa must be refused.
Grounds of Appeal
The applicant initially relied on four grounds of appeal in his application filed with the Court on 8 August 2018. Orders were made for the applicant to file and serve any amended application by 17 October 2019, file and serve any affidavit material by 7 November 2019 and file and serve written submissions by 26 March 2020.
On 25 March 2020, the first respondent’s solicitors were contacted by Mr Nair, who was at that time, representing the applicant, seeking consent orders to file an amended application, affidavit and written submissions. Mr Nair had only recently come into the matter. The first respondent’s solicitors did not consent to the course of action proposed by Mr Nair.
When the matter came on for hearing on 16 April 2020, it became clear that the matter could not proceed as the proposed amended application was not before the Court and the first respondent had not had an opportunity to file written submissions regarding the proposed amended grounds.
The matter was adjourned for further hearing to 23 April 2020. Orders were made to allow the filing of the proposed amended grounds and for the first respondent to file supplementary submissions. The issue of leave to rely upon the proposed amended grounds was reserved, pending consideration of them on 23 April 2020.
The amended grounds are as follows:
Ground 1:
The Administrative Appeals Tribunal erred in its decision to confirm the decision of the Delegate of the Minister for Home Affairs.
Particulars:
I applied for the Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (the Act). Under the terms of my employment contract I was supposed to commence my employment as a Restaurant Manager after I had been granted the visa. The Department of Home Affairs confirmed in their decision record advice that on 28 July 2018 the department officers attended the nominated business address for SOUF Pty Ltd 1/19-29 Mitchell Street, Mayfield TAS. The business was closed. The department also confirmed that the business was deregistered on 24 September 2018 as per ASIC records. The Department of Home Affairs never advised or informed me about the closure of the business and it’s deregistration from ASIC.
Ground 2:
The Administrative Appeals Tribunal failed to realise, that the Department of Home Affairs never advised me that the nomination was withdrawn.
Particulars:
The Department of Home Affairs got notification from the Employer that they are withdrawing the nomination, however after the nomination was withdrawn, I was never informed by the department. If the department would have informed me, I would have withdrawn my visa application and lodged another visa application with a new employer.
Ground 3:
The Administrative Appeals Tribunal failed to realise that I was not given procedural fairness.
Particulars:
The Administrative Appeals Tribunal member acknowledged that the department did not inform me that the nomination had been withdrawn. I was not given another opportunity to find another sponsored employer after the current employer closed the business, deregistered the business and withdraw the nomination. I should have been notified by the Department of Home Affairs and given at least 28 days to find another Employer Sponsor.
Ground 4:
The Administrative Appeals Tribunal failed to realise that at the time of the application I did not made false statement.
Particulars:
When I lodged my application for the visa the business received the RCB and approval from the Regional Certified Body. The business was registered with ASIC and the employer applied for the nomination and on that basis, I applied for the visa and made all the true statements. I never made any false statements with the department for my visa application.
In submissions filed with the Court on 27 March 2020, the applicant seeks to amend the grounds of appeal by adding the following two grounds of appeal, which the Court sets out in full, as they appear in the further amended application, less some formatting, but including highlighting and emphasis as it appears:
Ground 5:
The Tribunal erroneously interpreted s 66(2)(d)(ii) of the Migration Act 1958 and thereby committed jurisdictional error.
Particulars:
(1) At p.55 of the Court Book, the delegate of the Minister states under the heading “Review rights:” the following:
Review Rights:
The decision can be reviewed.
We cannot consider your application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
(2) In that the delegate failed, in attempting to advise the applicant, as stated in the quotation at (1) above. Such a notification failed to convey “complete information” as required by s 66(2)(d(ii) of the Act. This was pointed out by His Honour Perram J at (18) in DFQ17 v Minister for Immigration and Border Protection (2019) FCAFC 64 (18 April 2019).
(3) His Honour continues at (59):
“The word ‘state’ is an ordinary English word… The question is whether it ‘states’ at the time within which a review application must be made within the meaning of
s 66(2). This is a question of law: Vetter v Lake Macquarie City Council (2001) HCA 439 at 450 (24) per Gleeson CJ, Gummow and Calinan JJ. As I have explained, the question whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves into an enquiry that the information was clearly conveyed”. (Emphasis added)
The applicant submits that the information was not clearly conveyed to the applicant. What is relevant is whether there was compliance with the legal requirements in s 66(2)(d)(ii)? That is the question.
(4) And at (62) his Honour continued:
(62) I have no doubt that in this case, the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run…” (Emphasis added)
(5) And at (66) under the heading “Result,” his Honour concluded:
“The appeal must be allowed with costs”.
(6) The applicant submits that on the authority of DFQ17 (supra), so too in the instant case, that the letter of 7 May 2019 of the delegate to the applicant in the instant case “did not state the matter in s 66(2)(d)(ii) the Act”. (Emphasis added)
(7) The applicant reiterates: in the instance case:
“Time has not yet commenced to run”. (Emphasis added)
Ground 6
The decision of the Tribunal was an unreasonable decision in the legal sense as explained by the Full Court in Minister for Immigration v Li (2013) 297 ALR 225.
Particulars
(1) The applicant relies upon the particulars for Ground one. And in particular, the applicant states that the Tribunal completely misunderstood, misinterpreted and misapplied the provisions of
s 66(2)(d)(ii) of the Migration Act 1958 to the facts in the instant case.
The Applicant’s Submissions
The applicant’s legal representative told the Court that the common feature of grounds one to three was that the delegate, upon receiving information that the company sponsoring the nomination had ceased, was not conveyed by the delegate to the applicant. The Tribunal found that this did not occur. Given that the delegate did not inform the applicant that his nomination had been withdrawn, it was a core function of the Tribunal to rectify this error. As a result, the Tribunal committed jurisdictional error relying on Minister for Immigration v Li (2013) 297 ALR 225 (“Li”), as there was a general obligation on the Tribunal to provide any information relevant to the matter to the applicant.
In relation to ground four, the applicant submits that the delegate found the applicant made misleading statements. The Tribunal found that the applicant did not do so. It was a core function of the Tribunal to correct that error and by failing to do so, it did not fulfil its core function.
In relation to ground five, the applicant submits that the Tribunal confused itself with the application of the applicant and the failure of the delegate to properly inform. It was submitted that DFQ17 v Minister for Immigration and Border Protection (2019) FCAFC 64 (“DFQ17”), does apply in the circumstances and that if there was no proper notification of the decision by the delegate, then there was no proper application before the Tribunal to deal with. The Tribunal cited no authority that there was a valid application before it.
In relation to ground six, the applicant asserts that he sought additional time after being provided with information pursuant to s 359AA of the Act. The applicant sought 28 days. The Tribunal refused to allow this period of time but agreed to delay making its decision for a period of three days only, being from 9 to 12 July 2019, so that the applicant could provide any response that he wished to, in relation to that information. It is asserted that the applicant should have been allowed 28 days.
The First Respondent’s Submissions
The first respondent notes orders that were made by consent of 29 August 2019, in which the applicant was to file and serve any amended application giving complete particulars of each ground a review, on or before 17 October 2019. Written submissions were also ordered to be filed and served by 26 March 2020.
Written submissions were filed on 27 March 2020, which annexed a proposed amended application. It was foreshadowed that a transcript of the Tribunal hearing would also be filed. As at the date of the filing of the first respondent’s submissions (6 April 2020), no affidavit annexing a transcript of the Tribunal hearing had been filed by the applicant
The first respondent submits that the proposed application, is entirely misconceived. The amended application contains two proposed grounds which assert a DFQ17 type error. This was rejected by the Tribunal. The issue in DFQ17 was whether the time by which the application to the Tribunal was to be made, was “stated” in the delegate’s notification letter. In DFQ17, Perram J found that it was not and accordingly, the prescribed period within which the applicant could have applied for review, would not have started to run.
In this case, the applicant plainly made a valid application to the Tribunal for review of the decision within the prescribed time limits. Accordingly, even if the Court were to hold that the notification letter failed to comply with s 66(2)(d)(ii) of the Act, no jurisdictional error arises because the applicant did not suffer any practical injustice (see Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599).
In terms of the grounds that were originally pleaded, the first respondent submits that ground one is in a narrative form and states that the Department “never advised” the applicant about the closure, deregistration of the sponsor and that the Tribunal “failed to realise” that the Department had not told the applicant that the sponsored business had been deregistered. This is factually incorrect. By letter dated 13 February 2019, the applicant was invited by the Department to comment on information that the nominating company had been visited and the business appeared to be closed. In any event, the Court does not have jurisdiction to review the Delegate’s decision (see s 476(2)(a) of the Act). Ground one does not reveal any jurisdictional error.
The first respondent submits that ground two states that the Tribunal “failed to realise” that the Department had never advised the applicant that the nomination was withdrawn. Had the Department done so, the applicant contends that he would have withdrawn that visa application and lodged another one with a “new employer”.
The first respondent submits that ground three alleges the Tribunal “failed to realise” the applicant was not given procedural fairness. The applicant contends that the Tribunal acknowledged the Department did not inform him that the nomination had been withdrawn. The first respondent submitted that it was irrelevant, even if the applicant was only notified the nomination was withdrawn, at the Tribunal hearing. The Tribunal’s findings that the applicant did not satisfy cl 187.223(3) and cl 187.223(5) of the Regulations, were reasonably open to it, on the evidence before the Tribunal. The Tribunal is not required to afford the applicant common-law natural justice. The applicant is only entitled to the rights afforded to him, under Part 5 of the Act.
In compliance with s 359AA of the Act, the Tribunal put to the applicant at the hearing, information that the nomination had been withdrawn on 14 March 2019, as well as the deregistration of the company, in order to allow him to respond. The Tribunal was not required to allow 28 days for the response. Ground three does not establish any jurisdictional error on the part of the Tribunal.
Ground four states that the Tribunal “failed to realise” that at the time of the application, the applicant had not made a false statement. The applicant contends that the sponsor had been registered with ASIC at the time that he made the Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa application and that he had never made any “false statements” to the Department. The applicant takes issues with the delegate’s findings, rather than the Tribunal decision. No error is established.
The first respondent submits that, even if some error were established by the procedure adopted by the Tribunal (which is not apparent), the application should be refused on the basis that it would be futile to remit the matter back to the Tribunal (see Singh v Minister Immigration and Border Protection (2017) 253 FCR 267 at [82]).
The applicant cannot meet the requirements for the grant of the visa in
cl 187.223 of the Regulations, as he is not the subject of an approved nomination. The withdrawal of the Sponsor’s Nomination Application was fatal to the applicant’s Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa Application. No error is apparent in the Tribunal’s decision.
Consideration
Grounds one to three can be dealt with together to a large extent. These grounds centre on the claim by the applicant that he was not informed by the Department that the business had been closed and his nomination withdrawn. There is clear evidence in the Court Book, which is referred to above, which indicates that this material was put to the applicant via his nominated contact, being his migration agent, prior to the delegate’s decision being made. The applicant did not respond to this invitation. Ground one is merely a narrative statement, complaining about the alleged failure to inform the applicant and alleging unfairness. No jurisdictional error is detailed, nor is any established.
Ground two, makes complaints about the Department of Home Affairs. The actions of the Department are not reviewable by the Court, which must restrict its consideration to the Tribunal. The Court does not accept that it was a ‘core function’ of the Tribunal, to rectify the error complained of, and that a failure to do so would result in legal unreasonableness as detailed in Li. The role of the Tribunal is to conduct a de novo merits review of the delegate’s decision. The Tribunal did this. For the reasons, that the Tribunal gave, it came to a conclusion that the applicant could not qualify for the Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa he sought, as the business that was the sponsor for the nomination, had closed. There is nothing legally unreasonable in the way the Tribunal went about its task, or the conclusion it came to.
In relation to ground three, the Court agrees with the first respondent that it is irrelevant, even if the applicant was only notified that the nomination was withdrawn at the Tribunal hearing. The business which purported the sponsor of the applicant had closed and had been deregistered. The applicant had been advised of this prior to the delegate’s decision. The applicant chose not to respond to this information. In these circumstances, it seems somewhat unusual that the applicant would now be asserting that he had not been informed that the application had been withdrawn.
Ground four asserts that the delegate found the applicant had made misleading statements. The Tribunal did not make this finding. In so doing, the Tribunal failed, according to the applicant, in what was a “core function” to correct that error. This notion appears to confuse the notion of judicial review, with de novo merits review. The Court undertakes judicial review, which involves the requirement to review a decision for jurisdictional error. Where jurisdictional error is found, the Court will remit the matter for the decision to be remade according to law. It is this procedure that involves the correction of error. The Tribunal on the other hand undertakes merits review. There is no requirement to correct any error on the part of the delegate, rather, on the basis of the evidence before it, the Tribunal was required to make a fresh decision. Ground four does not disclose any jurisdictional error on the part of the Tribunal.
Grounds five and six allege error of the type identified by the Full Court in DFQ17. The complaints are misconceived. The Tribunal found it had a valid application for review before it, and proceeded to undertake that review. DFQ17 dealt with cases where the Tribunal found incorrectly, had no jurisdiction to undertake the review. This case is distinguishable in the current circumstances from DFQ17. No error of law is apparent. The Court rejects the assertion of the applicant that the Tribunal had no jurisdiction to deal with the matter as time had yet commenced to run, for the lodgement of an application to the Tribunal for review. By lodging an application and the Tribunal accepting it and then proceeding to conduct a review, no injustice to the applicant has been occasioned.
The Court is not satisfied that the decision of the Tribunal to proceed with the matter and conduct the review, discloses any legal unreasonableness as contemplated by the High Court in Li. No jurisdictional error is disclosed in relation to these two grounds.
Conclusion
The application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 22 May 2020
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