Khan v Minister for Immigration
[2019] FCCA 701
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 701 |
| Catchwords: MIGRATION – Regional Employer Nomination (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) Visa Application – review of a decision of the Administrative Appeals Tribunal – Tribunal hearing by telephone – no adjournment granted – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.338(9), 360A, 366 Migration Regulations 1994 (Cth), regs.4.02(4)(e), 4.10, sch.2, cl.187.233 |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 CGX16 v Minister for Immigration & Border Protection & Anor [2018] FCCA 2819 Craig v State of South Australia (1995) 39 ALD 193 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 Singh v Minister for Immigration & Anor [2018] FCCA 1215 Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 |
| Applicant: | IFTIKHAR KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2361 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 February 2019 |
| Date of Last Submission: | 28 February 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr D. Kiel |
| The Second Respondent:: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicant’s application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 2361 of 2017
| IFTIKHAR KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
Mr Khan seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 18 October 2017.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant Mr Khan a Regional Employer Nomination (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa (the “visa”).
The application for judicial review was filed in the Melbourne Registry of this Court on 2 November 2017. Mr Khan advances two grounds of review as follows:
1. The Tribunal did not give me a fair chance in that the hearing was conducted over the telephone. Therefore I could not present particulars of my case fairly if the hearing was conducted in person.
2. The Tribunal failed to take into account my employer’s personal circumstances. My employer was busy taking care of his father in law, who was very unwell at the time and passed away from his sickness. Therefore, my employer could not lodge a review application to the Tribunal or make a new application for nomination.
By a response dated 5 December 2017, the Minister opposed the grant of relief on the basis that the application failed to establish any jurisdictional error in the Tribunal’s decision.
On 11 July 2018, orders were made by a Registrar of this Court, by consent, that the proceeding be listed for a show cause hearing. Those orders allowed Mr Khan to file any amended application, evidence and submissions.
Mr Khan did not file any amended application or submissions in relation to this hearing.
In relation to a request for transfer from the Melbourne Registry to the Perth Registry of this Court, Mr Khan did provide a letter from his employer dated 22 June 2018, which confirmed the issues addressed by Mr Khan in relation to illness in his employer’s family.
Mr Khan also provided the Court with a copy of his PAYG payment summary for the year ending 30 June 2018 (“Group Certificate”), which evidenced that he is still employed by P & T Industries Pty Ltd (“P & T Industries”).
Request for an Adjournment
Mr Khan made a formal request that this matter be adjourned. In relation to that request, the Court notes the following chronology.
This matter was listed for a show cause hearing on 27 February 2019 at 2.15pm. On that date, the parties were contacted by telephone and asked if they were available if the matter commenced 15 minutes earlier. The parties confirmed their availability and the matter was relisted to 2:00pm.
Mr Khan did not appear at the hearing at 2:00pm and the matter was stood down to 2:15pm. Mr Khan did not appear at 2:15pm and the matter was subsequently adjourned for a show cause hearing on Friday, 1 March 2019 at 9:00am. The Court made the decision to adjourn the matter because there was some concern expressed by Counsel for the Minister that, as a result of a demonstration in Perth, Mr Khan might be delayed.
It appears that that was not the reason for Mr Khan’s non-appearance before this Court. It is now clear that Mr Khan was, in fact, in the Federal Court building in Perth. He attended at the Perth Registry and was directed by Registry staff to the wrong hearing room.
This is unacceptable. The Court extends its apologies to Mr Khan for his time wasted. Applicants deserve much better. Mr Khan had taken time off work to attend the Court. He did attend, and the matter was not able to proceed through no fault of his own.
The matter was subsequently listed for a show cause hearing on 28 February 2019 at 2:00pm. A notice of listing was sent to the parties. Mr Khan responded to that notice and provided the Court with what seemed to be a request for an adjournment. He indicated that the matter had been delayed and that he was now leaving the country on the Saturday following the hearing because he was getting married. The Court does not doubt Mr Khan in that regard.
In the circumstances, the Court asked the Counsel for the Minister whether it would agree to the adjournment. The Court was advised that the Minister did not consent because there was no acceptable evidence before the Court that Mr Khan was unable to attend the hearing as scheduled. The Court spoke to Mr Khan about the matter at hand and asked him to explain why an adjournment should be granted. In effect, Mr Khan repeated the evidence that was before the Court in relation to his pending marriage ceremony.
The Court notes the principles articulated in CGX16 v Minister for Immigration & Border Protection & Anor [2018] FCCA 2819 per Judge Lucev in relation to requests for an adjournment as follows.
14. The Court has a broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The primary consideration remains the interests of the administration of justice, which includes taking into account issues associated with case management and wastage of public resources: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”).
While the Court is sympathetic to the concerns Mr Khan raised and has no doubt that he is, as he indicated, worried about whether or not he will have time to file an appeal should a negative finding be made by this Court, the Court does note that the request for an adjournment was made very late in the piece. Further, this matter has been on foot since 2017. Mr Khan was certainly aware, and has certainly been aware for some time, that his marriage was going to occur. While sympathetic, the Court is not satisfied that there is any acceptable evidence before this Court which explains why the hearing cannot proceed today. The request for an adjournment is, consequently, denied.
Show Cause Hearing
Mr Khan was unrepresented in this Court. In the circumstances, the Court explained to Mr Khan what the Court could and could not do and what was required of him if he was to succeed before the Court in a show cause hearing.
The Court, noting the principles articulated by Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, accepts that hearings of this sort are stressful for an applicant, particularly one who is not legally represented. The Court indicated to Mr Khan that, in the circumstances, it would do what it could to assist him in understanding the legal language used by the Court, particularly as it relates to jurisdictional error.
The Court highlighted the overview provided by Judge Kelly of this Court in Singh v Minister for Immigration & Anor [2018] FCCA 1215 (Singh), wherein Judge Kelly noted (at [22]-[23]) as follows.
Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) regulates the conduct of a show cause hearing and confers a broad discretion on the Court to dismiss, adjourn or make final orders in an application, depending on whether it is satisfied that the application has raised an arguable claim for the relief sought. Even where the Court is not satisfied that the application has raised an arguable claim for relief, the Court retains a residual discretion to not order that the proceeding be dismissed: Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328 (“Siddique”) at [19] and SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [40].
In Siddique, Gilmour J (at [19]) stated that:
19. The power in r 44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application: SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [20].
For those reasons, his Honour concluded in Siddique (at [20]) that it would be wrong to proceed on the basis that the application should be dismissed merely because the Court was not satisfied that the application had raised an arguable case for relief. The exercise of the power conferred by r 44.12(1)(a) further requires the Court to consider whether the discretion conferred by this rule should be exercised.
Further, in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 (“CAL15”), Mortimer J held (at [4]) that the consideration of the merits of the application was important to the determination of an application for reinstatement because of the interests of the administration of justice, stating:
… [It] is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
(Emphasis added)
Like Judge Kelly in Singh, this Court adopts this reasoning as informing a show cause hearing.
As Judge Kelly also explains, in CAL15 Mortimer J further held (at [5]) that the exercise of the discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as applicable to a final hearing of an application for judicial review (citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]). Rather, on an application for reinstatement, the threshold for consideration of the merits of the application is whether the grounds of judicial review are shown to be “arguable” (at [6]).
Earlier, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (“Ex parte Marks”), McHugh J stated (at [18]) that, while the threshold for obtaining an order nisi was a low one, nevertheless, Courts should not be burdened with cases where it is clear that they do not enjoy any prospects of success. His Honour dismissed that application (at [19]) on the basis that the applicant had no arguable claim for relief.
This Court is bound by the guidance provided in these decisions.
Factual Background
To determine whether Mr Khan has shown cause, it is useful to outline the factual background to this matter and the Tribunal’s decision.
The Court has reviewed the factual material provided by the Minister and adopts the overview provided as accurate. This overview has not been disputed and provides relevantly as follows.
Mr Khan is a citizen of Pakistan. He applied for the visa on 28 September 2016. He indicated on the application form that he sought to come within the Direct Entry stream. It was a criterion for grant of the visa under this stream that Mr Khan be the subject of an approved nomination, pursuant to cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”).
Mr Khan was the subject of a nomination application made by P & T Industries on 28 September 2016.
That nomination was subsequently refused on 26 April 2017.
Mr Khan was invited to comment on this by letter dated 26 April 2017.
Mr Khan contacted the Department by telephone to ask what the letter meant, but otherwise provided no response to the letter.
The visa application was refused by a delegate of the Minister on 25 May 2017. The delegate found that cl.187.233 was not met as the nomination had been refused.
Mr Khan applied to the Tribunal for review of the delegate’s decision on 8 June 2017. He provided a copy of the delegate’s decision with his application.
Records accessed by the Tribunal show that the nomination lodged by P & T Industries with respect to Mr Khan was refused on 26 April 2017. No application was made for merits review of that decision.
Mr Khan appeared by telephone at a hearing before the Tribunal on 16 October 2017 (CB 84-85).
The Tribunal’s decision relevantly provides (CB 113-115):
10. The issue in the present case is cl.187.233.
11. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
12. In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made nomination
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.
13. The Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him. As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination was refused and therefore is no longer available to him. The applicant understood that the nomination was not approved and he therefore does not have an approved nomination for the 187 visa.
14. The applicant said that when his nomination was refused his employer had personal family problems and did not appeal the nomination refusal. His employer’s father-in-law was sick and later died. The applicant asked for more time for his employer to lodge an appeal (to review the nomination refusal) and said his future depends on the Tribunal’s decision. He said this is his only chance. The Tribunal explained the time period in which to apply for review are prescribed and it does not have the power to grant his employer additional time to lodge an appeal. The applicant said he understood that the time period for lodging a review of the nomination refusal has ceased but repeated that his employer had family problems and his employer needed more time. The applicant said he is still working for the same employer full time and is based in a regional area.
15. Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.
16. Therefore, cl.187.233 is not met.
17. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
18. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Proceedings in this Court
Mr Khan’s application contains two grounds of review as noted above at [3].
The Court had before it a Court Book numbering 115 pages, written submissions from the Minister, the letter from Mr Khan’s employer (noted above at [7]), and the Group Certificate provided by Mr Khan. This evidences that a member of Mr Khan’s employer’s family was unwell at the time the employer should have made an application for review in relation to the nomination application and, further, that Mr Khan was, and is still, employed by the same company.
If Mr Khan is to succeed in relation to the “show cause” hearing, he must show that he has an arguable case. He must show, in effect, that the Tribunal’s decision was affected by error.
As Mr Khan was not legally represented, the Court explained to him that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question (see Craig v State of South Australia (1995) 39 ALD 193 (“Craig”) at 198).
b)Where the decision maker ignores relevant material (see Craig at 198).
c)Where the decision maker relies on irrelevant material (see Craig at 198).
d)Where the decision maker fails to follow mandatory procedures (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208]).
e)Where the decision maker shows actual or apprehended bias (see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17]).
f)Where the decision is illogical, irrational or unreasonable (see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]).
Mr Khan was also advised that this Court could not engage in “merits review” of the Tribunal’s decision. The Court also explained what merits review means: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Court concluded that Mr Khan understood what was outlined above.
Mr Khan was asked to outline what, in his opinion, he felt the Tribunal did that was “wrong”. He did so, as discussed below.
Did the Tribunal fall into Jurisdictional Error?
Ground 1
The Tribunal did not give me a fair chance in that the hearing was conducted over the telephone. Therefore I could not present particulars of my case fairly if the hearing was conducted in person.
In relation to ground 1, the Minister contended (at [12]-[16]):
a)Section 366 of the Migration Act 1958 (Cth) (the “Act”) expressly permits the Tribunal to conduct hearings by telephone.
b)The fact that the Tribunal holds a hearing by telephone will not, of itself, establish any jurisdictional error.
c)Mr Khan was validly invited to a hearing by way of a notice that complied with the requirements of s.360A of the Act (CB 84-85), which specified the place at which the hearing would be conducted was Melbourne and that Mr Khan (who resided in Perth) was permitted to appear by telephone. Mr Khan, who was professionally represented in relation to the review by a registered migration agent, did not raise any objection to appearing by telephone.
d)To the extent that Mr Khan suggests that his evidence was not understood because of the hearing being by telephone, this cannot be sustained. The Tribunal plainly understood Mr Khan’s request for an adjournment to allow his employer to apply for merits review of the nomination refusal and Mr Khan’s evidence on which it was based, but decided not to grant the adjournment because the Tribunal did not have the power to grant his employer additional time to lodge an application for merits review.
e)There is nothing to suggest that the Tribunal exercised its power to conduct a telephone hearing under s.366 unreasonably or that its discretion miscarried in any way.
Mr Khan was asked to elaborate or explain his concerns in relation to the telephone hearing. He repeated, in effect, what he had said in his first ground of review – that is, he felt he was disadvantaged because he appeared by telephone.
This Court is not unsympathetic to the concerns that Mr Khan and other applicants in his position feel. Appearing by telephone is not ideal. The fact that this Court has that personal view, however, does not mean that this procedure points to jurisdictional error.
As correctly outlined by the Minister, there is nothing that prohibits the Tribunal from conducting hearings by telephone: s.366 of the Act; Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81 at [16]; Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 at [28]; SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]; MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 at [30]; SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49].
Further, as also highlighted by the Minister, there is no evidence before the Court that Mr Khan objected to a telephone hearing – either before or during the telephone hearing. There is also no evidence that the telephone link, in question, was in any way inadequate. The procedures followed by the Tribunal (as noted, for example, at CB 83) all adhered to the requirements that the Tribunal must address in relation to telephone hearings of the sort used here.
The Court is satisfied that Mr Khan was given an opportunity to present evidence that would assist him.
No jurisdictional error arises in relation to ground 1.
Ground 2
The Tribunal failed to take into account my employer’s personal circumstances. My employer was busy taking care of his father in law, who was very unwell at the time and passed away from his sickness. Therefore, my employer could not lodge a review application to the Tribunal or make a new application for nomination.
In relation to ground 2, the Minister contended as follows (at [17]-[21]) in written submissions:
a)It was open to the Tribunal not to adjourn the review and that the Tribunal’s exercise of its discretion was not legally unreasonable.
b)The basis of Mr Khan’s adjournment request was that his employer would seek review by the Tribunal of the nomination refusal. The Tribunal plainly understood this, and understood Mr Khan’s submissions as to the personal circumstances of his employer (CB 100 at [14]). Mr Khan’s contention that the Tribunal did not take into account these matters cannot be sustained.
c)Ultimately, as found by the Tribunal, the personal circumstances of the employer were not relevant as the Tribunal would have no power to extend time for the employer to lodge a merits review application, no matter how compelling his circumstances were.
d)To the extent Mr Khan asserts that his employer was unable to lodge a new nomination application, this was not Mr Khan’s case before the Tribunal. Mr Khan asked for an adjournment to allow his employer to lodge a review application, not to allow for a fresh nomination application to be lodged. The Tribunal considered the request as it was made by Mr Khan at the time. The Tribunal could not have erred in not considering a matter which was not put to it.
e)The Tribunal’s decision record provides an intelligible justification for its refusal of Mr Khan’s adjournment request.
Before this Court, Mr Khan highlighted his employer’s personal circumstances.
The Court is not unsympathetic to the concerns raised by Mr Khan. However, the Court agrees with the written submissions made by the Minister (at [21.1]-[21.2]).
In particular, as noted by the Minister, the nomination refusal was reviewable by the Tribunal pursuant to s.338(9) of the Act and reg.4.02(4)(e) of the Regulations. Pursuant to reg.4.10, an application for review of the nomination refusal needed to be lodged with the Tribunal within 21 days of the date on which notification of the nomination refusal is received. The nomination refusal was dated 26 April 2017. Mr Khan’s hearing was on 16 October 2017, some six months later.
As correctly outlined by the Minister, the time for lodging a review application with respect to the nomination refusal had passed and the Tribunal does not have any discretion to extend the time within which a review application needs to be made. Any application made by Mr Khan’s employer to seek review of the nomination refusal would have resulted in a finding that the Tribunal had no jurisdiction. It was open to the Tribunal to refuse to adjourn its proceedings to allow the employer to lodge a review application as any such adjournment would have been futile.
In the circumstances of this matter, regardless of how unfair it might seem, the relevant provisions in the Act are strict. The Tribunal has no discretion to extend the time within which to file a review application of the sort seen here.
Overall, the Court agrees with the Minister that the decision to affirm the delegate’s decision was sound. That decision was open on the evidence before the Tribunal. Indeed, it was the only decision the Tribunal could make. The Tribunal had no discretion to extend time and was left in a position where it had no choice but to deny Mr Khan the visa he sought.
The Court finds that ground 2 discloses no jurisdictional error.
Futility Argument
Counsel for the Minister also outlined concerns in relation to futility.
Specifically, it was stressed that the Court should refuse relief in its discretion as it would be futile to remit the matter to the Tribunal: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82] (Singh FCAFC), and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”).
The Court agrees. As accurately outlined by the Minister, cl.187.233(3) of Schedule 2 to the Regulations requires Mr Khan to have, at the time of decision, an approved nomination. This criterion can only be satisfied by approval of the original nomination which accompanied the visa application; it cannot be assessed against a new nomination application subsequently lodged by the employer: Singh FCAFC at [82]-[90]. As the relevant nomination was refused on 26 April 2017 and no application for merits review of that decision was made, on remittal Mr Khan could never satisfy cl.187.233.
Having assessed the evidence as a whole and applying the principles in Singh FCAFC and SZBYR, the Court finds that if this Court were to find jurisdictional error (which it does not), it would be futile to remit the matter back to the Tribunal for a hearing because the Tribunal is not now in a position to assist Mr Khan.
Conclusion
For the above reasons, the Court finds that this application should be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 20 March 2019
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