Kumar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1269
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1269
File number(s): ADG 222 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 28 November 2024 Catchwords: MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – whether the Tribunal failed to consider information – whether the applicant was given sufficient time to respond – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 359B, 359C, 359C(2), 360, 360(1), 360(2)(c), 360(3), 363A, 476
Migration Regulations 1994 (Cth) r 5.19(4), r 5.19(4)(a)(ii), 5.19(4)(h)(ii), sch 2 cll 187.233, 187.233(3)
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Vo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 447
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 2 August 2024 Date of hearing: 7 November 2024 Place: Adelaide Applicants: Self-represented Counsel for the First Respondent: Tara Rossetto Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 222 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANJEEV KUMAR
First Applicant
NEELAM RANI
Second Applicant
ANIKA CHOUDHARY
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
28 NOVEMBER
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
Mr Kumar and Ms Rani (the applicants) seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Employer Nomination (Subclass 187) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal decision. On that basis, the application cannot succeed.
BACKGROUND
The applicants are citizens of India (CB 1-4). Mr Kumar first arrived in Australia on 3 June 2009 as the holder of a student visa (CB 14). Ms Rani first arrived in Australia on 7 December 2014 as the holder of a tourist visa (CB 14).
The third applicant is the child of the applicants and was born in Australia on 17 July 2016 (CB 5).
On 27 September 2018, the applicants applied for the visas (CB 1-19). In their accompanying application, OM Cleaning Services SA Pty Ltd (the sponsor) listed the applicant as their nominee (CB 47). Mr Kumar was nominated for the position of Customer Service Manager (CB 8).
On 24 July 2019, a delegate of the Minister wrote to the applicants requesting further information in relation to various issues (CB 34-46).
On 27 August 2019, the delegate wrote to Mr Kumar advising that the nomination application submitted by the sponsor had been refused. The delegate invited him to provide comment or withdraw the application, noting that if he did not withdraw or respond within 28 days, the application would be refused (CB 47-49).
On 26 September 2019, the delegate refused to grant the applicants the visas. The delegate was not satisfied that Mr Kumar met cl 187.233 of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 56-60). That criterion provides:
(1)The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) sub-paragraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who mad ethe nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
On 15 October 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 61-63).
On 16 October 2019, the Tribunal wrote to Mr Kumar requesting further information in writing in respect of his nomination by 30 October 2019 (CB 67-68). There is no evidence before the Court to suggest that he responded to this invitation.
On 20 April 2020, the Tribunal wrote to Mr Kumar pursuant to section 359A of the Act inviting him to comment on or respond to the following (CB 70-72):
The application for approval of the nominated position made by OM Cleaning Services SA Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but they have now withdrawn that application for review. This means that the nominator’s application for the nominated position has not been approved.
There is no evidence before the Court to suggest that Mr Kumar responded to this invitation.
On 20 May 2020, the Tribunal wrote to Mr Kumar advising that it had affirmed the delegate’s decision not to grant the applicants the visas (CB 73-74). On that same day, the Tribunal provided its reasons in writing (CB 75-79).
On 5 June 2020, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 5 pages long and spans 22 paragraphs, including an attachment setting out cl 187.233 of Schedule 2 to the Regulations (CB 75-79).
The Tribunal began by identifying the visa under review, noting that the applicants applied for the visas on 27 September 2018. The Tribunal observed that, at the time of application, the visa contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme) (at [2]).
The Tribunal outlined that the criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Regulations. It outlined that the primary criteria must be satisfied by at least one applicant, whilst the other members of the family unit must satisfy only the second criteria. It outlined that to satisfy the primary criteria, the applicant must meet the Common criteria, as well as one of either the Temporary Residence Transition stream or the Direct Entry stream (at [3]). It confirmed that Mr Kumar is seeking the visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager (at [4]).
The Tribunal explained that a delegate of the Minister refused to grant the visas because Mr Kumar did not meet cl 187.233 of Schedule 2 to the Regulations, as the nomination was not approved (at [5]). It noted that the issue presently before it was whether the nomination had been approved (at [7]).
The Tribunal confirmed that the applicants relied upon evidence they gave at the hearing, together with written submissions and supporting evidence provided to the Tribunal, and previously to the Department (at [9]).
The Tribunal summarised that on 27 September 2018, OM Cleaning Services applied for approval for a nomination of Mr Kumar for the position of Customer Service Manager. It then summarised that on 27 August 2019, the Department refused their application, and in a separate decision, refused Mr Kumar’s application on the basis that OM Cleaning Services’ nomination was not approved (at [10]). The Tribunal confirmed that both Mr Kumar, as well as OM Cleaning Services, applied to the Tribunal for review of the Department’s decisions (at [11]).
The Tribunal outlined that it wrote to Mr Kumar on 16 October 2019, requesting information regarding the status of the nomination, with a written reply requested by 30 October 2019. It confirmed that no response was received by the requested date, or at the time of writing its decision (at [13]).
The Tribunal confirmed that it accepted OM Cleaning Services’ Request for Withdrawal from the review on 21 October 2019. Accordingly, it confirmed that Mr Kumar’s application for review was no longer valid, and the decision by the Department to refuse the employer nomination still stood, so there could be no valid employer nomination (at [12]).
The Tribunal set out, in full, the invitation to comment on or respond to information that it sent to Mr Kumar on 20 April 2020. It highlighted that the particulars of the information were that the application for approval of the nominated position by OM Cleaning Services was refused, and that they had withdrawn their application for review, so their application for the nominated position had not been approved (at [14]). It confirmed that, at the time of making its decision, Mr Kumar had not responded to the invitation (at [15]). It set out that because he did not provide the requested information within the prescribed period, and had not sought an extension of time, he was not entitled to appear before the Tribunal. It confirmed that it proceeded to making a decision without taking further steps to obtain the information (at [16]).
The Tribunal explained that 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)(ii) of the Regulations (a Direct Entry nomination in regional Australia), or under r 5.19(4) as it was prior to 1 July 2012 (a Regional Sponsored Migration Scheme nomination). It also explained that the position must be one that was the subject of the declaration required as part of the current visa application, and that the position must be one in relation to which the applicant is identified in that nomination under r 5.19(4)(a)(ii) (at [17]).
The Tribunal also summarised other requirements of this criterion as follows (at [18]):
•The person who will employ the applicant is the person who made the 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 of 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.
The Tribunal found that Mr Kumar could not satisfy an essential criterion as the nominated position was not approved, so he was unable to satisfy cl 187.233(3) (at [19]). Consequently, it found that cl 187.233 is not met (at [20]).
The Tribunal noted that Mr Kumar had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. It confirmed that no claims had been made in respect of the other visa streams, and as the requirements that must be met by a person seeking the Direct Entry stream visa had not been met, the decision under review must be affirmed (at [21]).
Accordingly, the Tribunal affirmed the delegate’s decision (at [22]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 5 June 2020 sets out the following grounds (without alteration):
1.Administrative Appeal Tribunal made Jurisdictional error not considering documents which I have provided during the lodgement of nomination and visa application.
2.Administrative Appeal Tribunal made Jurisdictional error by not giving us enough time to respond.
The applicants filed an affidavit with that judicial review application which annexed copies of the Tribunal’s decision, the delegate’s decision and their passports.
The applicants appeared before the Court without legal representation. The Court confirmed with Mr Kumar that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit affirmed by the applicants on 15 June 2020 (the affidavit being taken as read and in evidence at the hearing on 7 November 2024), a Court Book numbering 79 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 2 August 2024.
The applicants were not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 7 November 2024, Mr Kumar was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).
However, it was also explained to Mr Kumar that this was not an exhaustive list and he should attempt to tell the Court what he said the Tribunal did wrong.
CONSIDERATION
As outlined above, there are two grounds of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In this matter, the application includes two unparticularised but clear grounds.
Ground one
Through ground one, Mr Kumar argues that the Tribunal failed to consider relevant documents provided through the lodgement of his nomination and visa application. These documents were not particularised in the application, however at the hearing he clarified that the relevant documents he was referring to were the sponsor’s financial documents.
In response, the Minister submitted that in his visa application, Mr Kumar provided identity and academic documents, but no financial documents. The Minister further submitted that the determinative issue before the Tribunal was whether Mr Kumar was the subject of an approved nomination pursuant to cl 187.233 of the Regulations, and in circumstances where the sponsor withdrew its review application to the Tribunal, the Tribunal correctly found that there was no valid nomination.
The Court accepts the Minister’s submissions in relation to this. It is clear that the Tribunal considered the documents provided to it, and previously to the Minister, at [9] of its reasons. As explained by this Court in Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [81], citing Vo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 447, the Tribunal has a discretionary power to seek information that it considers may be relevant to the review, however there is no duty placed upon the Tribunal (by s 359 of the Act) to do so. It is not required to make inquiries for further information and documents (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [18]-[25]). Thus, the Tribunal had no duty to seek further information, particularly where the determinative issue was whether Mr Kumar was the subject of an approved nomination.
In any event, the Tribunal considering financial documents would not have impacted its decision, where it made the only decision available to it, in accordance with cl 187.233.
No jurisdictional error is made out in respect of ground one.
Ground two
Through ground two, Mr Kumar argues that the Tribunal did not provide him sufficient time to respond.
In response, the Minister submitted that the applicant was afforded several opportunities to provide information to the Tribunal. The Minister submitted that the Tribunal first requested information from the applicant on 16 October 2019, and again on 20 April 2020, pursuant to s 359A of the Act. In circumstances where the applicant did not respond to the s 359A invitation, and there is nothing to indicate on the evidence that he sought further time to respond, the Minister submitted that the Tribunal was not required to invite the applicants to appear at a hearing.
The relevant statutory provisions are set out as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
…
359B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
…
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Where the Tribunal wrote to Mr Kumar in accordance with s 359A, and he did not seek further time to respond, nor does he assert such a claim, the Tribunal correctly proceeded to determine the review without inviting the applicants to a hearing or taking further steps to obtain information.
The Court accepts that when s 359C(2) applies, s 360(2)(c) relieves the Tribunal of the obligation to invite the applicant to appear before it under s 360(1), and s 360(3) results in the applicant losing any entitlement to appear before the Tribunal. Once the applicant loses this entitlement, pursuant to s 363A, the Tribunal does not have the power to invite the applicant to appear before it. This is explained in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [27]-[29], where the appellant’s failure to comment or respond to the s 359A invitation meant that the appellant could not appear before the Tribunal, nor could the Tribunal permit the appellant to appear at an oral hearing.
In the circumstances of this matter, because Mr Kumar did not respond to the s 359A invitation, either by providing information or requesting an extension of time, the applicants lost their right to a hearing. Consequently, the Tribunal made the only decision available to it in circumstances where there is no approved nomination.
No jurisdictional error is made out in respect of ground two.
The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.
The Court is satisfied that, even adopting the broad approach referred to in [37] of these reasons, no jurisdictional error is apparent.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions advanced by Mr Kumar at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 28 November 2024
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