Koirala v Minister for Immigration

[2017] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOIRALA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2332

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) visas – Tribunal affirmed decision to refuse the nomination by the nominator – Tribunal wrote to the applicant pursuant to s.359A – no comments or response to the information was received by the Tribunal and no extension was granted – the applicants were not entitled to appear before the Tribunal under s.360(3) – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359C, 360(3), 363A, 476

Migration Regulations 1994, cl.187.311, 187.233 of Schedule 2

First Applicant:

Second Applicant:

Third Applicant

ALOK KOIRALA

LAXMI KATUWAL

AAHANA KOIRALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1097 of 2017

Judgment of: Judge Street

Hearing date: 25 September 2017

Date of Last Submission: 25 September 2017

Delivered at: Sydney

Delivered on: 25 September 2017

REPRESENTATION

The First and Second Applicants appeared in person.

Solicitors for the Respondents: Ms M Donald
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1097 of 2017

ALOK KOIRALA

First Applicant

LAXMI KATUWAL
Second Applicant

AAHANA KOIRALA
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 March 2017 affirming a decision of the delegate not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

2. The first applicant is a citizen of Nepal and was the primary applicant for the visa. The second applicant is his wife, and the third applicant, their child are listed as members of the family unit in the application.

3. There are certain criteria that must be met for the grant of the present visa. In the present case, the nominated position was one which was the subject of a nominating employer, Global Scrap Metal Pty Ltd.

4. On 5 January 2016, a delegate refused to grant the visa and found that the applicant failed to meet the criteria under cl.187.223 and cl.187.311 of Schedule 2 to the Migration Regulations (“the Regulations”).

5. On 22 May 2015, the application was made by the nominator for approval of the position, and on 16 November 2015 the delegate refused that nomination. The nominator applied for review on 6 March 2017. The Tribunal affirmed the decision to refuse the application for approval of the nominated position.

The Tribunal’s decision

1. The applicants applied for review on 11 January 2016. On 8 March 2016, the Tribunal wrote to the applicant pursuant to s.359A inviting the applicant to provide comments or a response to the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The letter informed the applicants of the outcome of the application for the nomination of the position and the adverse decision on 6 March 2017 and explained how that impacted on the outcome or potential outcome of the current application for review.

2. The Tribunal noted that the invitation was sent to the last email address provided in connection with the review and advised that if comments or a response were not provided in writing by 22 March 2017, the Tribunal may make a decision on the review without taking further steps to obtain comments or a response, and that the applicants would lose an entitlement they might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

3. The Tribunal noted that the applicants did not provide comments or a response within the prescribed period and that no extension was granted. It was in those circumstances the Tribunal found that s.359C of the Migration Act applied and pursuant to s.360(3) of the Migration Act, the applicants were not entitled to appear before the Tribunal. Those statutory construction conclusions by the Tribunal were correct.

4. The Tribunal observed that the effect of s.363A of the Migration Act is that the applicants have no entitlement to a hearing and the Tribunal has no power to permit a hearing. In those circumstances, the Tribunal decided to proceed to make a decision without taking further steps to obtain comments or a response.

5. In the circumstances of the present case where no response had been received and the applicants had been advised as to the consequence of a failure to respond or comment, it was open to the Tribunal and the Tribunal acted reasonably in proceeding to make a decision.

6. The Tribunal was satisfied that the nomination by the nominator had not been approved. The Tribunal found that the applicants did not meet cl.187.223(3) of Schedule 2 to the Regulations and found accordingly that cl.187.233 of Schedule 2 to the Regulations was not met. It was in those circumstances that the Tribunal affirmed the decision under review.

Before this Court

1. On 18 May 2017, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The grounds of the application are as follows:-

   1. In affirming the decision of the Department of Immigration and Border Protection (DIBP) to refuse the Applicant the grant of a Regional Employer Nomination (Permanent) (Class RN) Visa, the Administrative Appeals Tribunal (AAT) made a jurisdictional error in that it denied the applicant procedural fairness in that that applicant was denied an opportunity to appear before the Tribunal to give evidence and present arguments in support of his application for review.

3. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision is affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that if it was satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if it was not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence, then hear submissions from the first applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. The first applicant confirmed that he understood the nature of the hearing as explained by the Court.

6. The Court explained that it would only hear submissions from the second applicant and explained why it was necessary for the second applicant to put submissions. No submission was advanced by or as to why the second applicant should put submissions.

Consideration

The First Applicant’s submissions from the bar table

1. The first applicant identified his child and that he believed that his migration agent had not given him appropriate advice in relation to the material that he had to put on. Negligence of the migration agent in acting for the applicants in the review is not a ground upon which any jurisdictional error can be made out against the Tribunal unless circumstances establish a fraud on the Tribunal. There is no basis in the present case to find any fraud on the Tribunal.

2. Once the decision was made in relation to the nominated position on 6 March 2017, the applicant could not possibly satisfy a mandatory criteria for the grant of a visa. In those circumstances, the application for review was thereafter doomed to failure in the absence of any further challenge to that decision.

3. The Court explained to the applicants that the Court does not have power to revisit the merits, nor can the Court decide the case on compassionate grounds. The Court explained that this Court’s jurisdiction is limited to considering whether or not the statutory requirements in the exercise of the review by the Tribunal are complied with, and whether the Tribunal complied with the requirements of procedural fairness in that process.

4. The statutory provisions govern the process to be undertaken in the review. In the circumstance of the present case, those statutory requirements precluded the Tribunal from holding a further hearing in circumstances where no comments, or a response to the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review was received and no extension was granted. The decision by the Tribunal to proceed to determine the matter cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by anything said by the applicant from the first applicant from the bar table.

The second applicant’s opportunity to put submissions

1. The second applicant was given a further opportunity to put submissions, but nothing was said by the second applicant as to why the Tribunal’s decision was unlawful or unfair.

Ground 1

1. Ground 1 asserts a denial of procedural fairness because of the lost opportunity to appear before the Tribunal. For, the reasons already given, the Tribunal was correct to hold that it did not have statutory authority to require the applicants to attend, or for the Tribunal to conduct a further hearing in the circumstances where there had been a failure to provide comments or response within the prescribed period, and no extension of time had been given.

2. Accordingly, there was no denial of procedural fairness in the circumstances of the present case by the Tribunal not conducting a hearing. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. Accordingly, the application was dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  28 September 2017