Kumar v Minister for Home Affairs
[2019] FCCA 1594
•11 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1594 |
| Catchwords: MIGRATION – Temporary Work (Skilled) (subclass 457) visa – review of decision of Administrative Appeals Tribunal – where applicant failed to appear at Tribunal hearing – where remittal would be futile in any event – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.360A, 362B, 362C, 379A, 476 Migration Regulations 1994 (Cth), cl.457.223 |
| Cases cited: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 |
| Applicant: | ROMAS KUMAR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 398 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 June 2019 |
| Date of Last Submission: | 10 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 10 June 2019)
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 398 of 2018
| ROMAS KUMAR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written reasons for judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $5,000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 10 June 2019.
Background
By application filed in this Court on 20 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal) dated 28 June 2018.
The applicant had applied to the Tribunal for review of a decision of the delegate of the now Minister for Home Affairs (the “Minister) to not grant the applicant a Temporary Work (Skilled) (subclass 457) visa (the “visa”).
On 28 June 2018, the Tribunal dismissed the applicant’s application pursuant to s.362B(1A)(b) of the Act (the “Non-Appearance Decision”).
On 23 July 2018, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”).
It should be noted that the applicant filed his judicial review application in this Court prior to receiving the Confirmation Decision (indeed, prior to the Confirmation Decision even being made). He sought judicial review of the Non-Appearance Decision. Despite this, the Court will address both decisions for the sake of finality.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court references a Court Book (“CB”) numbering 103 pages (marked as Exhibit 1), an affidavit from the applicant affirmed 20 July 2018 and the Minister’s submissions dated 29 May 2019.
The Minister’s submissions at [3]-[9] provide an accurate summary of the background to this matter. That summary was not disputed and the Court adopts that summary as its own. It provides as follows.
The applicant, a citizen of India, lodged an application for the visa on 27 May 2015 (CB 1-11).
On 19 February 2016, the applicant was invited to comment on information that his sponsor did not have an approved nomination in respect of the applicant. The applicant did not respond to that invitation (CB 57-59).
On 14 June 2016, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant was the subject of an approved nomination and therefore found that he did not meet the requirements of cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 60-64).
On 2 July 2016, the applicant lodged an application for review of the delegate’s decision to the Tribunal (CB 65-66). The only subsequent contact the applicant had with the Tribunal was to inform them he was not attending the hearing scheduled for 15 March 2017 (CB 68). The Tribunal proceeded to determine the matter in his absence and affirmed the decision under review (CB 71-76 at [5]). However, on 13 July 2017, this Court remitted the matter back to the Tribunal by consent (CB 77-78).
On 27 July 2017, the Tribunal notified the applicant that it would reconsider his application for review (CB 80-81)
On 4 June 2018, the Tribunal invited the applicant to attend a hearing (CB 82-84). The applicant neither responded to that hearing invitation nor attended the hearing (CB 85).
On 28 June 2018, the Tribunal dismissed the application pursuant to s.362B(1A)(b) of the Act (CB 91) (the Non-Appearance Decision). The applicant did not apply for reinstatement before the 11 July 2018 deadline and the Tribunal confirmed the non- appearance decision (the Confirmation Decision) (CB 96-97).
Tribunal Decisions
The Non-Appearance Decision
The Non-Appearance Decision is dated 28 June 2018. In its entirety, it provides:
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 28 June 2018 at 9:30 am (Western Australia time) by video conference. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. No adjournment request had been made before the scheduled hearing date and time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision is dated 23 July 2018. In its entirety, it provides:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 June 2016 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under the Migration Act 1958 (the Act).
2.On 28 June 2018 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
5.The Tribunal confirms the decision to dismiss the application.
Judicial Review Application
The applicant’s judicial review application and affidavit contained the same four paragraphs or “grounds” of review:
1. I was born on 02/05/1988
2. I am currently on Bridging visa A
1. I Romas Kumar has applied for a Temporary Business visa (UC 457) on 27th May 2015 . The visa application was refused by DIBP on 14th June 2016 and affirmed by Administrative Appeals Tribunal on 28th June 2018
2. In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances (sic).
The applicant appeared before this Court without legal representation.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include 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 (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]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; 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] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court could not engage in “merits review” of the Tribunal’s decision.
The applicant indicated to the Court that he understood the information that had been given to him by the Court.
When asked to elaborate on his grounds of review, the applicant simply advised the Court that, in effect, he did not attend at the Tribunal or apply for reinstatement because his migration agent told him he did not need to do so.
This issue is addressed below in assessing the applicant’s grounds of review.
The “grounds” of review
Grounds 1-3 of the applicant’s grounds of review offer no more than a factual overview of the factual matters relevant to this hearing. These matters are not disputed by the Minister. They are not, however, grounds of review and they fail to identify any jurisdictional error.
Insofar as ground 4 refers to the “DIBP”, which the Court assumes to be the Minister, the Court does not have jurisdiction to review that decision: s.476(2) and (4) of the Act.
Insofar as ground 4 refers to the Tribunal, the Court agrees that the Tribunal overlooked the applicant’s circumstance. This is so because the applicant did not attend the hearing. As such, the Tribunal did not turn to consider the merits or “circumstances” surrounding the applicant’s visa. There was not, however, any “judicial error” in its failure to do so.
Lest it be suggested that the applicant is referring here to the fact that his migration agent advised him that he did it need to attend, in addition to what is stated above, the Court notes that there is no evidence before it that the applicant was represented by an agent or that anyone (an agent or otherwise) contacted the Tribunal to seek an extension of time or advise of evidence or circumstances it sought to have considered.
The Tribunal dismissed the applicant’s review application for non-appearance, and it confirmed that decision in the absence of the applicant applying for re-instatement. It was statutorily empowered to do so in circumstances where:
a)the applicant was validly invited to the hearing; and
b)it was reasonable to do so.
Here, the Court notes:
a)the applicant provided an email address on the Tribunal review application; and
b)the Tribunal emailed the applicant on 4 June 2018 inviting him to attend the Tribunal hearing on 28 June 2018.
The invitation sent on 4 June complied with the requirements of s.360A of the Act as:
a)it stated the day, time and location of the Tribunal hearing as required by s.360A(1);
b)it was given to the applicant (as required by s.360A(2)(a)) by email – that being one of the methods specified in s.379A(5)(b);
c)the invitation satisfied the requirements of s.360A(4) of the Act by giving the applicant 24 days’ notice of the hearing – that being 10 days more than the period prescribed by the Regulations; and
d)the invitation contained a statement outlining with clarity what would happen if the applicant did not attend the hearing and the effect of s.362B – as required by s.360A(5) of the Act.
The applicant did not attend the hearing. The Tribunal then handed delivered a Non-Appearance Decision pursuant to s.362B(1A)(b) of the Act.
In compliance with the obligations under s.362C, the Tribunal:
a)made a written statement of its decision (the Non-Appearance Decision) in accordance with s.362C(2);
b)the Non-Appearance Decision was given to the applicant on the same day of the hearing and within 14 days of the decision being made and thereby satisfying s.362C(5)(a) of the Act;
c)a copy of the Non-Appearance Decision was sent by email to the applicant (again, a method prescribed by s.379A(5), in accordance with s.362C(5)(b)); and
d)the Tribunal correctly advised the applicant that he could apply to the Tribunal, in writing, for reinstatement of the review application by 12 July 2018 and was provided a brochure titled ‘Information about dismissal of applications – MR Division’, which contained a statement describing the effect of s.362B(1B)-(1F) of the Act (as required by s.362C(6)).
Having failed to apply for re-instatement within the 14 day period, the Tribunal was mandated to dismiss the application pursuant to s.362B(1E) of the Act: AYT16 v Minister for Immigration & Border Protection [2017] FCA 252 at [10].
Procedurally, the Tribunal complied with all obligations under pt.5, div.5.
As for reasonableness, the Court notes that:
a)no information was sent to the Tribunal by the applicant after his matter was remitted to the Tribunal in July 2017;
b)the applicant was invited to provide further documents; and
c)there was no response to the hearing invitation and no explanation or indication given that the applicant would not be in attendance at the Tribunal hearing.
There was nothing before the Tribunal which might have suggested that the applicant would attend an adjourned Tribunal hearing: MZALO v Minister for Immigration & Border Protection (2016) 70 AAR 495 at [22]-[28] per Mortimer J.
The lack of previous engagement (at least since the matter was remitted) indicated that the applicant was not actively seeking to ensure he met the visa criterion or was concerned with its progress. It cannot be said to have been unexpected, “amiss” or “remarkable” for the applicant to have failed to attend.
On the basis of the above, it was reasonable for the Tribunal to dismiss the application.
Likewise, it cannot be unreasonable for the Tribunal to have affirmed the Non-Appearance Decision in the Confirmation Decision when that was, legislatively, the only decision open to it in the circumstances.
Overall, there is no jurisdictional error in the Tribunal’s decision.
Futility
Lest the Court be wrong in finding that no jurisdictional error arises on the applicant’s grounds of review, or elsewhere in the Tribunal’s decisions, the Court also notes as follows.
The applicant has sought review of a subclass 457 visa. Clause 457.223(4)(a) of the Regulations is as follows:
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and …
On the materials before the Court, it is clear that the applicant’s sponsor’s nomination was refused by the Department and the application for review of that decision was withdrawn sometime in February 2017.
In these circumstances, the applicant did not have an “approved sponsor nomination” and did not, accordingly, meet cl.457.223(4)(a) of the Regulations.
Nothing in the Court Book provides evidence that there was a later nomination approval. None, therefore, exists.
By virtue of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), subclass 457 visas have been removed, or are no longer offered. Consequential amendments have the effect that it is no longer possible for an employer to seek approval of a nomination to sponsor an applicant or proposed applicant for a subclass 457 visa.
In the absence of there being any approved or pending nomination in respect of the applicant (and noting that no nomination applications may now be lodged), the applicant can no longer be sponsored for the grant of the visa.
As the applicant can no longer be sponsored, he cannot meet cl.457.223(4)(a) of the Regulations.
As such, the Tribunal would have no choice but to affirm the decision to not grant the applicant the visa as he cannot, and will not be able to, meet a mandatory criterion.
The applicant thus faces a fundamental difficulty that, irrespective of whether the Tribunal committed jurisdictional error, he cannot be granted the visa and the Court should refuse relief on that basis.
The Court is satisfied that in these circumstances, it would be futile to remit the matter to the Tribunal.
Conclusion
The applicant has failed to identify any jurisdictional error in his application, or otherwise. In any event, it would be futile to remit the application.
The application must, accordingly, be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 11 June 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
10
4