Lin v Minister for Immigration

[2016] FCCA 554

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 554

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359C, 360, 363, 379

Migration Regulations 1994 (Cth), cl.857.221

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26

First Applicant: NAISHU LIN

Second Applicant: YANQIN HUANG

Third Applicant: ZHANG LINMIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 408 of 2014

Judgment of: Judge Barnes

Hearing date: 11 March 2016

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 408 of 2014

NAISHU LIN

First Applicant

YANQIN HUANG

Second Applicant

ZHANG LINMIN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 10 February 2014, affirming a decision not to grant the Applicants Employer Nomination (Residence) (Class BW) visas. 

2. The Applicants are citizens of People’s Republic of China.  The First and Second Applicants are husband and wife.  The third named Applicant is their adult child.  For convenience, future references to the Applicant are to the First Applicant.

3. The application for the Employer Nomination visa was made on 28 February 2011 on the basis of the Applicant’s proposed employment as a cook with WXZ Enterprises Pty Limited (WXZ). The position of cook was nominated for approval as an approved appointment under reg.5.19 of the Migration Regulations 1994 (Cth) (the Migration Regulations) by WXZ (the WXZ nomination).

4. However on 17 April 2012 the WXZ nomination was refused by a delegate of the First Respondent on the basis that the nomination did not satisfy the requirements of reg.5.19(4). The Applicant’s visa application was also refused on 17 April 2012. Because the nomination of the position had not been approved, the Applicant could not meet the criterion in cl.857.221 for the visa. The delegate also found that in the absence of exceptional circumstances the Applicant did not meet a criterion in relation to his age and functional English in cl.857.213(b)(ii) in Schedule 2 to the Regulations.

5. The Applicants applied to the Tribunal for review of the delegate’s decision.  In the application for review, they appointed a migration agent as their representative and authorised that person to receive correspondence from the Tribunal in relation to the application.  Contact details for the representative (including a facsimile number) were provided.  The representative and each of the Applicants signed the application form.  WXZ also sought review of the nomination refusal. 

6. On 20 January 2014 the Tribunal wrote to the Applicants by letter sent by facsimile to their authorised recipient inviting them to comment or respond in relation to the fact that on 9 January 2014 the Tribunal had decided to affirm the decision to refuse approval of WXZ’s nomination application for the position in which Mr Lin was proposing to be employed. 

7. As the Tribunal explained in its letter, that meant there was no approved appointment by WXZ of the Applicant in its business as required under the criteria for the subclass of visa for which he had applied and would be the reason or part of the reason for the Tribunal finding that the Applicant was not the subject of an approved nomination for appointment in the business of WXZ and it would follow that he did not meet the requirements in cl.857.221 in Schedule 2 to the Migration Regulations.

8. Included in the Courtbook is a copy of a transaction report recording that the facsimile was transmitted to the facsimile number provided for the authorised recipient.

9. The Tribunal did not receive a response to this letter.  Accordingly, it made its decision on 10 February 2014.  It recorded that the visa application was made on the basis of the Applicant’s employment in a position of cook nominated for approval as an approved appointment by WXZ; that the delegate had not approved the appointment of WXZ; that WXZ (as well as the Applicant) had sought review; and that the Tribunal had affirmed the decision to refuse the nomination made by WXZ in respect of the Applicants. 

10. The Tribunal also referred to the fact that it had written to the Applicants on 20 January 2014 inviting them to comment on the fact that the appointment had not been approved and had advised them that if the comments were not provided by 3 February 2014 the Tribunal may make a decision without taking further steps to obtain the comments and that the Applicants would lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments. 

11. The Tribunal found that its records confirmed that the facsimile was successfully transmitted; that no comments or response had been provided within the prescribed period; and that no extension of time had been sought or granted. Hence it found that under s.359C of the Migration Act 1958 (Cth) (the Act) it may make a decision without taking any further action to obtain the Applicants’ views on the information and that under s.360(3) of the Act, the Applicants were not entitled to appear at a Tribunal hearing (and see s.363A of the Act). The Tribunal decided to proceed to a decision without taking further steps to obtain the comments or response.

12. The Tribunal recorded that what was in issue was whether, at the time of its decision, the nomination by WXZ of the Applicant to the position of cook had been approved. It found that the appointment nominated by WXZ was not approved and that that decision had been affirmed on review by the Tribunal. Hence, it found that the Applicant did not satisfy the time of decision criterion in cl.857.221 that the appointment for which he had been nominated had been approved. As the Applicant failed to satisfy the primary criteria, the Tribunal also found that the Second and Third Applicants did not meet the secondary criteria. Accordingly the Tribunal affirmed the decision.

13. The Applicants sought review by application filed in this Court on 21 February 2014.  On 15 October 2014, the Applicant filed an affidavit sworn by him on that date to which was attached a copy of the original application which had been annotated and was described as an Amended Application, as well as a copy of a document described as a statement which was also attached to the original application, and an annexure which appeared to indicate that WXZ had attempted to seek judicial review of the Tribunal decision in relation to its nomination application.

14. When this matter originally came before the Court for hearing on 23 July 2015, it was adjourned twice for clarification of whether WXZ had sought judicial review.  It emerged that while it had not successfully done so initially, WXZ did subsequently file an application for judicial review in the Melbourne registry of this Court.  These proceedings were then further adjourned in order to await determination of those proceedings. 

15. The matter was listed before me for directions on 3 March 2016. On that date, the solicitor for the Minister advised the Court (and the Applicant) that WXZ’s application for judicial review had been dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) in Melbourne on 3 February 2016, the date which the matter had been adjourned after an initial failure by WXZ to appear on the first court date of 20 January 2016. In those circumstances, the Applicants’ application for judicial review was listed for hearing today.

16. At the start of the hearing today, the Applicant repeatedly sought a further adjournment on the basis that, contrary to what he had been told on 3 March 2016 when the matter was last before the Court, he believed that the judicial review proceedings of WXZ were still on foot. 

17. The Minister tendered a copy of the orders of this Court made in Melbourne on 3 February 2016 dismissing the application of WXZ pursuant to rule 13.03C(1)(c) and ordering that WXZ pay the Minister’s costs. The Minister also tendered a copy of a printout from the relevant part of the Commonwealth Courts Portal in relation to those proceedings, which indicated that the review application was filed on 28 July 2015 and “closed” on 3 February 2016, having been adjourned on 20 January 2016 and dismissed on 3 February 2016.  Relevantly, I also note that the printout from the Commonwealth Court Portal indicates that no documents have been filed since 3 February 2016.  In other words, there has been no application to reinstate the proceedings.  The only documents filed by WXZ were the affidavit and application filed on 28 July 2015. 

18. I refused the adjournment application. 

19. In oral submissions today the Applicant reiterated that he needed time to find out what was happening, apparently on the basis that he had been told (incorrectly) that the Melbourne proceedings were still on foot.  I again refused what I took to be a further adjournment application.  When the matter was before the Court a week ago the Applicant was informed that WXZ’s application had been dismissed and that the hearing would proceed today. 

20. The Applicant has not filed written submissions. I gave him the opportunity to address the ground in the amended application today or to raise other issues of concern about the Tribunal decision or procedures. Perhaps understandably, the Applicant expressed some concern and confusion on the basis that he had been a good employee for many years and did not understand why he was not given the chance to work. However, as the Tribunal decision recorded, the nomination of the position by WXZ did not meet the requirements in reg.5.19(4) of the Migration Regulations and in the absence of approval of a position to be filled by the visa applicant, the visa application could not succeed.

21. The concerns the Applicant raises about his personal situation, while understandable, do not establish any jurisdictional error on the part of the Tribunal.  Similarly, if he has been told (wrongly) that the proceedings in Melbourne started by WXZ are still on foot, that does not either warrant a further adjournment or demonstrate any jurisdictional error on the part of the Tribunal.

22. The Applicant also claimed that he didn’t know much, that he was only an employee, that he just listened to the company lawyer and that he didn’t know about s.359A of the Act. Insofar as this may be intended to suggest that the Applicant was not aware of the letter sent under s.359A of the Act, that in itself is not indicative of jurisdictional error. As the First Respondent submitted, the letter was sent to the Applicants’ authorised recipient and in the absence of a response, the Tribunal was correct in taking the view that it was open to it to proceed to make a decision without taking further action to obtain comments or a response and not to give the Applicants an opportunity to appear before it.

23. In the s.359A letter the Tribunal identified that the refusal of the appointment nomination was information for the purposes of s.359A (consistent with SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26). The letter set out clear particulars of the information the Tribunal considered would be the reason or part of the reason for affirming the decision, why it was relevant and the consequences of it being relied on.

24. In accordance with the requirements of the Act (see, in particular, ss.359A(2)(a) and 379A(5)) the letter was transmitted by facsimile to the last facsimile number provided to the Tribunal for corresponding with the Applicants for the purposes of the review (that is, to the authorised recipient’s facsimile number). Pursuant to s.379C(5) of the Act, the Applicants were deemed to have received the s.359A letter, even if they did not in fact, receive it, on the day the facsimile was transmitted, being the end of 20 January 2014.

25. As the Applicants did not respond to that letter within the time provided for, pursuant to s.359C(2) of the Act the Tribunal could make a decision on the review without taking further action to obtain the Applicants’ comments or respond. The obligation under s.360(1) of the Act to invite the Applicants to a hearing did not apply (see ss.360(2)(c) and 360(3) of the Act). The Tribunal correctly found it had no power to afford the Applicants such a hearing (see s.363A of the Act and Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40).

26. The Tribunal also correctly identified as the issue before it whether the Applicant had been nominated by an employer for an appointment in the business, and that nomination been approved. As the WXZ nomination had been refused by a delegate and that decision affirmed on review, the Tribunal correctly found that the Applicant did not meet the criterion in cl.857.221.

27. The ground relied on by the Applicant in the Amended Application is that the First and Second Respondents did not provide procedural fairness and that his evidence and arguments were not heard or assessed. Insofar as the Applicants take issue with the approach taken by the delegate, the Court does not have jurisdiction to review the delegate’s decision as it was a primary decision (see s.476(2)(a) of the Act).

28. The Tribunal met its procedural fairness obligations under the Migration Act. In circumstances where there was no response to the s.359A letter, the Tribunal was correct to proceed to make a decision without taking further action to obtain the Applicants’ comments or to allow the Applicants to appear before it. There has been no denial of procedural fairness established, whether consisting of a failure to comply with the Tribunal’s obligations under the Migration Act or otherwise.

29. In the statement annexed to the Amended Application, a number of sections extracted of the Migration Act in relation to the Tribunal obligations are listed, in particular s.360 and s.362B. Section 362B is not relevant because there was no hearing invitation and, as indicated, the Tribunal’s obligation under s.360(1) to invite the Applicants to a hearing did not apply in the circumstances of this case, because s.359C(2) applied in that the Applicant had been invited to provide comments under s.359A and had not given those comments. Under s.363A of the Act, the Applicants were not in these circumstances entitled to appear before the Tribunal.

30. The other issue raised in the statement annexed to the original application and the Amended Application annexed to the affidavit of 15 October 2014 is a claim that the Applicant’s employer WXZ had lodged an application for judicial review of the Tribunal decision.  As indicated, an application was not successfully lodged until July 2015.  That application was dismissed on 3 February 2016.  There is no longer any proceeding by WXZ before the Court.  The Applicants’ reliance on such proceedings does not establish a jurisdictional error on the part of the Tribunal or any other basis on which he can succeed in his application to this Court. 

31. As no jurisdictional error has been established, the application must be dismissed.

32. The Applicants have been unsuccessful.  The Minister seeks costs in the sum of $6,646.  There is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful Applicants should meet the costs of the First Respondent.  The Applicant again asserted that he did not know that the proceedings in Melbourne had been dismissed, despite the fact that, a week ago, he was told in the directions hearing of 3 March 2016 that this had occurred.  This contention is not a reason for departing from the normal principle in relation to costs.  The amount sought is reasonable in light of the nature of this and other similar matters.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  22 March 2016