Luo v Minister for Immigration
[2020] FCCA 575
•17 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUO v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 575 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – ground not made out – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338, 357A, 360, 360A, 361, 362B, 363, 476, pt.5, div.5 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 |
| Applicant: | HQ LUO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRTAIVE APPEALS TRIBUNAL |
| File Number: | SYG 40 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 March 2020 |
| Date of Last Submission: | 4 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2020 |
REPRESENTATION
| Representative for the Applicant: | Mr N. Daawar |
| Solicitors for the Applicant: | Ariana Defence Lawyers |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 6 January 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 40 of 2017
| HQ LUO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRTAIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 January 2017, by Mr Hq Luo, (“the applicant”) seeking review of the decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 2 December 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant Ms Eiawbandansuk (the visa applicant) and her partner, Mr Witoon, the Temporary Work (Skilled) visas (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents, filed and tendered by the Minister (“CB1”–“RE1”), and the affidavit of Ada Oi-Yee Wong, solicitor made on 26 February 2020.
Background
Ms Eiawbandansuk was the primary applicant for the visa. She applied for the visa on 6 February 2015 (CB 1–CB 14 and [2] at CB 137). She was nominated for the relevant employment position by her sponsors Hq Luo and F Zhang (“the visa sponsors” and “the review applicants” before the Tribunal) of Raw Espresso Bar and Cafe (CB 10 and CB 82).
Mr Hq Luo’s and F Zhang’s (“the visa sponsors”) nomination application was approved on 7 July 2015 (see [3], and Annexure “A”, to Ms Wong’s affidavit). This nomination was valid for a 12 month period, and expired on 7 July 2016 ([3]-[4] of Ms Wong’s affidavit).
Relevant Legislation
Subclause 457.221A of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) was at the relevant time in the following terms:
“If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:
(a) the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or
(b) if the applicant does not hold a substantive visa at the time of the decision on the application:
(i) the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and
(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.”
Criterion 3004 of Schedule 3 to the Regulations was at the relevant time in the following terms:
“If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.”
That part of section 362B of the Act, relevant to the current case, was at the relevant time in the following terms:
“(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.
Before the Delegate
On 25 February 2015, the delegate wrote to Ms Eiawbandansuk, through her then representative (CB 38–CB 51). The correspondence advised her that more information was required to assist in the consideration of the visa application. Specifically, the delegate requested further information on her health insurance, evidence of her having undertaken health checks, evidence of her relationship with her de facto partner, and the requirement of a (at CB 45):
“…statement that states:
• the factors that caused you to become a person without a substantive visa and the reasons why these factors were beyond your control; and
• the compelling reasons that exist to grant you a visa; and
• that you have substantially complied with the conditions on your previous visa; and
• that you intend to comply with the conditions on this visa, should it be granted.”
On 25 March 2015, Ms Eiawbandansuk provided the delegate with a statement addressing her lack of a substantive visa at the relevant time (CB 60–CB 63). She explained that she initially had a student visa subclass 572, and she subsequently applied for a skilled Independent Visa Subclass 485/885.
After her student visa expired she was granted a Bridging Visa WA, while she waited for the outcome of the application for the skilled visa. Her application for the skilled visa was refused by the delegate on 24 January 2014. She subsequently applied to the then Migration Review Tribunal, and then to the Federal Circuit Court for review. While her case was before the Federal Circuit Court, Mr Luo offered to sponsor her for the visa. This prompted her to apply for the 457 visa.
Ms Eiawbandansuk outlined numerous compelling reasons for the visa to be granted (at CB 61). For example, she and her partner had been living in Australia for more than ten years, and had become “accustomed to Australian life and culture”. If the sponsors were to train another employee to replace her they would “incur extra cost and time”, while her being granted the visa would “benefit the business [and] also the local community”.
On 27 March 2015, Mr Luo also wrote to the delegate stating why his business required Ms Eiawbandansuk (CB 74–CB 75). He listed reasons such as her good cooking, that she had assisted in the business obtaining a good reputation, and that he required her to train people he was intending to employ for the businesses’ second site.
The delegate refused Ms Eiawbandansuk’s application on 15 July 2015 (CB 76–CB 86). The delegate found that she did not meet the requirements of criterion 3004 of Schedule 3 to the Regulations or cl.457.221A(b)(ii) of Schedule 2 to the Regulations.
The Tribunal
Ms Eiawbandansuk applied to the Tribunal for review of the delegate’s decision on 3 August 2015 (CB 87–CB 98). On 19 February 2016, a Tribunal officer wrote to Ms Eiawbandansuk informing her that the sponsors had standing to apply to the Tribunal for review, and she did not (CB 101).
The Tribunal subsequently explained the reasons for this in its decision record (see [13]–[14] at CB 138–CB 139). Mr Luo does not now assert any error in the Tribunal’s consideration and findings in this regard.
Ultimately, Mr Luo and F Zhang made a valid application seeking review of the delegate’s decision (CB 107–CB 110) (see further below).
On 20 October 2016, the Tribunal wrote to Ms Eiawbandansuk who appeared to be authorised to receive correspondence on behalf of the visa sponsors, and invited Mr Luo and F Zhang to attend a hearing on 1 December 2016 (CB 111–CB 118). The invitation informed Mr Luo of the following:
“…We have considered the material before us but we are unable to make a favourable decision of this information alone.
HQ LUO & F ZHANG is invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
Please note that we will only change this date if satisfied that HQ LUO & F ZHANG has a very good reasons for being granted an adjournment.
…
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable HQ LUO & F Zhang to appear…”.
On 25 November 2016, Mr Daawar, wrote to the Tribunal to advise that he had been appointed as Ms Eiawbandansuk’s migration agent (CB 119–CB 120). He further, informed the Tribunal that Ms Eiawbandansuk was (at CB 119):
“…very ill due to her recent surgical operation and she is due to see her surgeon on the 1st or 2nd of December and unfortunately she is also listed for the hearing of her review application before AAT…”.
On 28 November 2016, an email from a Tribunal officer addressed to Mr Luo was sent to Ms Eiawbandansuk’s email address (CB 121). The email advised that Ms Eiawbandansuk’s appointment of representative form had been received. However, the Tribunal noted that she was not the review applicant before the Tribunal. The Tribunal, further noted that as it was the visa sponsors who had been invited to the hearing, and not her, the hearing would proceed on 1 December 2016.
On 29 November 2016, Mr Dawaar again emailed the Tribunal, attaching a doctor’s letter confirming Ms Eiawbandansuk had an appointment on 2 December 2016 (CB 122–CB 124). The correspondence reiterated that Ms Eiawbandansuk would not be able to attend the hearing because she was in pain, and again requested that the hearing be relisted.
Following the receipt of this email from Mr Dawaar, a Tribunal officer called him (CB 125). The Tribunal officer informed him that the visa sponsors had been invited to the hearing, as they were the review applicants before the Tribunal. Mr Daawar, informed the Tribunal that as he had been instructed in the matter only recently, he had been of the understanding that Ms Eiawbandansuk was the review applicant.
In context, following this telephone conversation, (in reply to the email from the Tribunal addressed to Mr Luo on 28 November 2016 (as set out above)) an email was received from Ms Eiawbandansuk’s email address, said to be from Mr Luo (CB 126). The email advised the Tribunal, that Mr Daawar was now representing him, and he would provide the Tribunal with a completed Notification of Representative form in due course. It further stated that he consented to the earlier request made for the adjournment.
In response to the receipt of this email, the Tribunal sent an email to Ms Eiawbandansuk, informing her that the Tribunal “carefully considered the request for a postponement”. However, it did not agree to the request (CB 127). The correspondence, noted that the visa sponsor had been invited to the hearing, and the hearing would proceed.
On 30 November 2016, another email was received by the Tribunal from Ms Eiawbandansuk’s email address, but said to be from Mr Luo (CB 128). The email, again requested that the hearing be postponed, as the “main witness”, Ms Eiawbandansuk was “severely ill”. It appears as though Mr Luo was of the understanding that if the matter were to proceed on 1 December 2016, it would only be part heard, due to Ms Eiawbandansuk’s absence, and that he would have to attend on a second occasion.
The email further noted that:
“…attending just a hearing without any utility will badly disturb our business and our lives financially attending twice at the Tribunal and it will take two unnecessary days out of work due to Kulchalee’s absence from the hearing.”
On 30 November 2016, a Tribunal officer responded to the correspondence set out directly above (CB 129). The email advised that the Tribunal had “carefully considered” the request for postponement, however, did not agree to it, and that the hearing would occur as scheduled.
The Tribunal Decision
On 1 December 2016, the review applicants did not attend the Tribunal hearing (CB 130–CB 132). The Tribunal made its decision without providing them with another opportunity to appear before it. ([28] at CB 140–CB 141). On 2 December 2016, the Tribunal affirmed the delegate’s decision (CB 133–CB 144).
The Tribunal identified that pursuant to cl.457.221A of Schedule 2 to the Regulations, Ms Eiawbandansuk, as the visa applicant, was required to hold a substantive visa at the time of making the application as she was offshore when the visa application was made on 6 February 2015, but onshore when the delegate’s decision was made ([14] at CB 138–CB 139 and [30] at CB 141, see also reg.4.02(4)(L)(i) and reg.4.02(5)(K).
The Tribunal noted that Ms Eiawbandansuk’s last substantive visa expired on 28 February 2013 ([32] at CB 141). The Tribunal noted that Ms Eiawbandansuk as the applicant, therefore met criterion 3004(a) to Schedule 3 of the Regulations, and consequently was required to meet criterion 3004(c)-(h) of Schedule 3 to the Regulations ([33] at CB 141).
Initially, the Tribunal considered whether Ms Eiawbandansuk met criterion 3004(d) to Schedule 3 of the Regulations ([34]–[40] at CB 141–CB 142). This criterion required there to be compelling reasons for the relevant visa to be granted. The Tribunal took into consideration Mr Luo’s letter to the Department which indicated that Ms Eiawbandansuk was a good cook, and if he were to lose her as an employee, it would have a negative impact on his business ([35] at CB 141–CB 142). The Tribunal was not satisfied on the evidence, that the need for Ms Eiawbandansuk to work in Mr Luo’s business constituted a compelling reason for the visa to be granted ([36] at CB 142).
The Tribunal did not accept Ms Eiawbandansuk’s submission that residing in Australia for over 10 years was a compelling reason ([37] at CB 142). The Tribunal found that she had only held temporary visas in Australia, and therefore could not have expected to remain here permanently.
The Tribunal was unable to gain further information about the costs that Mr Luo would incur to train a new employee as he did not attend the hearing ([38] at CB 142). On the evidence, the Tribunal was not satisfied that Ms Eiawbandansuk’s employment was a compelling reason ([38] at CB 142).
After considering Ms Eiawbandansuk’s claims both individually, and cumulatively, the Tribunal was not satisfied that that there were compelling reasons for granting the visa ([40] at CB 142).
The Tribunal also considered whether Ms Eiawbandansuk met criterion 3004(c) to Schedule 3 to the Regulations ([41]–[45] at CB 142–CB 143). The Tribunal did not find her justification for not having a substantive visa satisfactory. The Tribunal did not accept that Ms Eiawbandansuk’s “failure to lodge the Subclass 457 visa application, before her previous substantive visa ceased, was a factor beyond the applicant’s control” ([45] at CB 143). Therefore, the Tribunal found that Ms Eiawbandansuk did not satisfy criterion 3004(c) ([45] at CB 143).
The Tribunal also considered criterion 3004(f) of Schedule 3 to the Regulations ([46]–[47] at CB 143). The Tribunal was unable to receive evidence on whether the visa sponsors had nominated the occupation of “Cook” by 28 February 2013, being the last day on which Ms Eiawbandansuk held a substantive visa, as the visa sponsors did not attend the hearing to provide such evidence. The Tribunal was consequently not satisfied that Ms Eiawbandansuk met criterion 3004(f) ([47] at CB 143).
The Tribunal concluded that because Ms Eiawbandansuk did not meet criterion 3004(c), (d) and (f), she therefore did not meet criterion 3004 ([48] at CB 143). Further, the Tribunal found that Mr Witoon did not meet the primary criteria for the visa ([49] at CB 143). Therefore, the Tribunal affirmed the delegate’s decision ([50] at CB 144).
Before the Court
Mr Luo made his application to the Court on 6 January 2017. He was represented by Mr Daawar, solicitor (who appeared at the final hearing). Although there were two review applicants before the Tribunal (Mr Luo and F Zhang) there is only one applicant before the Court.
On 14 October 2019 both parties were advised that the listing for the final hearing of this matter was proposed for 4 March 2020.
In subsequent email correspondence with the Court Mr Daawar indicated that he had been unable to file a Notice of Intention to Withdraw/Withdrawal of Lawyer form with the Court’s Registry, as he had been unable to serve the notice of intention to withdraw on “the applicant”, as required.
In light of this, the matter was listed for directions on 13 November 2019. At directions, Mr Daawar informed the Court that he had received no further instructions, and was unable to contact his client. I granted leave for Mr Daawar to file and serve a notice of withdrawal pursuant to Rule 9.03(2) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Further, I dispensed with the requirement for a notice of intention to withdraw, pursuant to Rule 1.06 of the Rules. At that time the Court proceeded on the assumption that references to “the applicant” or his client, by Mr Daawar were references to Mr Luo, not Ms Eiawbandansuk.
Subsequently, Mr Daawar filed a notice of withdrawal with the Court’s Registry. In the notice, he confirmed that he had made numerous attempts to contact “her” by calling “her phone number” and “her educational agent”. It was clear that Mr Daawar had been engaged by Ms Eiawbandansuk in relation to the current proceedings, not Mr Luo.
On 18 November 2019, a Notice of Address for Service was filed by Mr Daawar on behalf of Mr Luo.
On 25 November 2019, orders were made listing the matter for final hearing on 4 March 2020. Orders were also made requiring Mr Luo to file and serve written submissions on or before 19 February 2020, and the Minister to do the same by 26 February 2020. The Minister filed submissions on 26 February 2020, Mr Luo did not file written submissions by the date required.
At the final hearing, the Minister was represented by his counsel. Mr Daawar appeared. He was accompanied by Ms Eiawbandansuk. Mr Luo was not present in Court.
Given what is set out above, (at [39]–[43]) I asked Mr Daawar when he had last spoken to the applicant, his client, Mr Luo. He stated that this had occurred some two and a half months ago. Amongst other things the written submissions which Mr Daawar filed at 6:33PM on the evening before the hearing appeared not to have been drafted on instructions from Mr Luo.
I adjourned the hearing to allow Mr Daawar to speak to Mr Luo by telephone. On resumption Mr Daawar advised that he had spoken to Mr Luo who confirmed that Mr Daawar was to take instructions from Ms Eiawbandansuk who acted on authority from Mr Luo. Further, he understood that if the application was unsuccessful he may be called upon to pay the Minister’s legal costs.
The hearing proceeded on that basis. References in this judgment to Mr Luo’s submissions and arguments are to be understood as references to Mr Daawar’s submissions and arguments as arising from instructions from Ms Eiawbandansuk, whom Mr Daawar reported had authority from his client, Mr Luo, to give such instructions.
Application to the Court
The sole ground of the application to the Court is in the following terms:
“1. Breach of Procedural Fairness
The First Respondent had breached procedural fairness by not given reason opportunity and reasonable chance to the applicant to put their case before the Tribunal.
The Tribunal did not act fairly in reaching to the unfair decision in the absence of the applicant and their main witness, the visa applicant, while it has been notified that the main witness who is the visa applicant is ill due to the surgical operation she had and won’t be able to attend the hearing and therefore requested the hearing to be relisted. The decision maker did not accept the evidentiary evidence and explanation provided, and denied the request of relisting the hearing. Therefore failed to protect the very well established notion of natural justice that could be facilitated by an easy administrative exercise of relisting the hearing and providing the review applicant a reasonable opportunity to properly present their case to the Tribunal. Consequently reached decision in the absence of a relevant and crucial witness for the hearing and without that witness the hearing had no utility.
This decision was taken in the absence of the applicant and the main witness, the visa applicant and therefore breached the principle of Procedural Fairness.
Particulars:
The First Respondent had breached procedural fairness by not given reason opportunity and reasonable chance to the applicant to put their case before the Tribunal.
The review applicant made a review application being the business owner where the visa applicant works. The application was made base on the oral evidence of the visa applicant Ms Kulchalee Eiawbandansuk. Tribunal did not act fairly in reaching to the unfair decision in the absence of the applicant and their main witness, the visa applicant, while it has been notified that the main witness who is the visa applicant is ill due to the surgical operation she had and won’t be able to attend the hearing and therefore requested the hearing to be relisted. The decision maker did not accept the evidentiary evidence and explanation provided, and denied the request of relisting the hearing. Therefore failed to protect the very well established notion of natural justice that could be facilitated by an easy administrative exercise of relisting the hearing and providing the review applicant a reasonable opportunity to properly present their case to the Tribunal. Consequently reached decision in the absence of a relevant and crucial witness for the hearing and without that witness the hearing had no utility.
This decision was taken in the absence of the applicant and the main witness, the visa applicant and therefore breached the principle of Procedural Fairness.”
Consideration
Mr Luo’s ground asserts that he was denied procedural fairness by the Tribunal because it failed to adjourn the hearing when it had been asked to do so because Ms Eiawbandansuk, the principal visa applicant, was unable to attend the hearing because of illness.
Mr Luo has, with the benefit of legal representation, focused his ground on a denial of procedural fairness. That is, that he was not given a reasonable opportunity to put his case before the Tribunal, because the Tribunal made its decision without hearing from Ms Eiawbandansuk who was described as the “main witness”.
The ground itself does not seek to engage with the relevant statutory context.
The written submission, filed literally on the eve of the hearing, made reference to s.363(1)(b) of the Act, but did not satisfactorily engage with the relevant statutory context, and made no reference to any relevant authority in support of the argument said to arise from the ground.
Notwithstanding that given the late filing of submissions, Mr Daawar had had the benefit of the Minister’s written submissions, he commenced his oral submissions before the Court by confirming that Mr Luo’s ground, and argument in explanation, alleged a breach of procedural fairness at common law.
The following matters arising from the evidence before the Court provide context for the proper disposition of Mr Luo’s sole ground of his application to the Court.
Section 360 of the Act compels the Tribunal, in matters of this type, to invite the review applicant to a hearing. On the evidence before the Court, there appears to have been some confusion on the part of Mr Luo and Ms Eiawbandansuk, and initially Mr Daawar acting as a registered migration agent, as to who was the appropriate applicant before the Tribunal.
As set out above, Ms Eiawbandansuk (and her partner) applied for a Temporary Work (Skilled) Visa (subclass 457 visa) on 6 February 2015 (CB 1–CB 14 and [2] at CB 137). They were sponsored for that visa by Mr Luo and F Zhang trading as “Raw Espresso Bar and Cafe”, of which Mr Luo was the operator.
As set out above, Mr Luo and F Zhang had applied for an approval to nominate Ms Eiawbandansuk for an employment position as cook with their business. This was approved. However, Ms Eiawbandansuk’s (and her partner’s) application was refused. The background to this, as set out above, was that at the time of making the application for the visa Ms Eiawbandansuk was not the holder of a substantive visa as was required by the relevant regulatory criteria for the grant of the visa.
Further, as she was outside Australia at the time of making the application, but within Australia at the time of decision, Ms Eiawbandansuk was required to satisfy criterion 3003, 3004 and 3005 of Schedule 3 to the Regulations (see cl.457.221A of Schedule 2 to the Regulations). The delegate found that Ms Eiawbandansuk did not meet criterion 3004(c) because Ms Eiawbandansuk did not hold a substantive visa, and this was not due to circumstances beyond her control.
As also set out above, Ms Eiawbandansuk lodged an application for review of the delegate’s decision with the Tribunal. The Tribunal advised Ms Eiawbandansuk that as she was not in Australia as at the time of making that application, the appropriate applicant for review, was the sponsor for the visa (with reference to reg.4.02(4) and (5) as they then were, and s.338(9) of the Act).
A Tribunal officer contacted Ms Eiawbandansuk by email on 19 February 2016, and advised her that her sponsors could seek review, and she could not (CB 101). On 4 March 2016 and 5 April 2016, Ms Eiawbandansuk provided the Tribunal with the necessary forms to indicate that Mr Luo (and F Zhang) was applying for review to the Tribunal (CB 102–CB 103 and CB 105–CB 106).
On 5 April 2016, a Tribunal officer wrote to Mr Luo and F Zhang acknowledging their application for review (CB 107–CB 110). The letter was sent to Ms Eiawbandansuk who apparently had been nominated to receive correspondence on their behalf.
The Tribunal’s findings in this regard as expressed in its decision record were not the subject of any satisfactory criticism or dispute by Mr Luo before the Court (see [14]–[15] at CB 138–CB 139).
As set out above, the Tribunal invited Mr Luo and F Zhang, as the review applicants with standing to seek review of the delegate’s decision, to a hearing scheduled for 1 December 2016 (CB 111–CB 118). The invitation letter was sent to Ms Eiawbandansuk as the authorised recipient.
The invitation attached a “Response to hearing invitation” form and asked that they read it, explanatory material was also attached (see CB 114.7 and CB 115–CB 118).
On 25 November 2016, Mr Dawaar advised the Tribunal that he had been “appointed as a migration agent in this matter by Ms Kulchalee Eiawabandansuk” (CB 119). A formal notice of “Appointment of Representative” and “Authorised Recipient” was attached (CB 120).
The letter from Mr Daawar also stated (at CB 119):
“…Further my client is currently very ill due to her recent surgical operation and she is due to see her surgeon for on the 1st or 2nd of December and unfortunately she is also listed for the hearing of her review application before AAT.
I have been instructed that the applicant is not able to attend the hearing due to her medical condition and appointment. Accordingly I would like to kindly request Registerer of the Tribunal and the member of the tribunal in this matter to relist this matter to a future suitable date so my client can properly attend hearing without any difficulties and health risk.
I thank you in advance on my clients behaviour and please accept our apologies for the inconvenience caused. Have a great weekend.”
On 28 November 2016, an officer of the Tribunal directed an email to Mr Luo (the review applicant) again sent to Ms Eiawbandansuk as his authorised recipient, in the following terms (CB 121):
“Dear Mr Luo,
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
An appointment of representative form has been received by the tribunal for Kulchalle Eiawbandansuk. However, Kulchalee Eiawbandansuk is not the review applicant. As a part of the appointment of representative notification a postponement of the hearing has been requested because of the visa applicant’s medical condition but the hearing will proceed on 1 December 2016 as it is HQ Luo & F Zhang who have been invited to attend the hearing…”.
A response was received from Mr Daawar on 29 November 2016 (CB 122):
“…Thank you for your email and consideration. Please find attached the doctors letter confirming appointment. Further I am instructed that there is a complication in the procedure and due to that complication our client is in severe pain and discomfort. Accordingly she won’t be able to attend the hearing as she is a severe pain.
Further I have been advised that your office have sent a communication to her informing her that the hearing will proceed. I don’t understand this. She is in pain and now very distress for tomorrow because of your email.
I kindly request your office to relist the hearing as she won’t be in a position to attend the hearing due to the severe pain and she will be at risk due to the nature of surgery. I am have been instructed the any movement is causing her pain even walking and sitting in the chair.
Thank you for your assistance and cooperation. I thank you on behalf of my client. Apologies for the inconvenience caused. I am just instructed in the matter and this was the first opportunity to inform you and seek the relisting of the hearing.”
The attached doctor’s letter was in the following terms (CB 124):
“This is to confirm that your surgery…has been booked for Wednesday 2 November 2016.
…
Your post-operative appointment… is on Friday 2 December 2016 at 11am…”.
It is clear that despite being a registered migration agent at the relevant time Mr Daawar failed to appreciate, and address, the critical issue that, in the circumstances presented, Ms Eiawbandansuk had no review rights and that the opportunity to exercise any such rights in relation to the delegate’s decision, was at the discretion of Mr Luo (the sponsor) and F Zhang.
Before the Court, Mr Daawar submitted that he had acted on instruction from Ms Eiawbandansuk and assumed she had the capacity to seek review. That may have been the case. However, it does not explain why as a registered migration agent, Mr Daawar appears to have taken no proper steps to acquaint himself with the relevant facts.
In any event, as is also clear, before the Tribunal at that time, Mr Daawar, who said he was acting for Ms Eiawbandansuk, made no statement or gave any indication that he was also representing Mr Luo.
It is not surprising therefore that on 29 November 2016 at 2:50 PM he was contacted by a Tribunal officer who reported as follows (CB 125):
“On Member’s instruction, I called the visa applicant’s representative and informed him that, as he is not the review applicant’s representative, the tribunal is unable to provide him with information about the case. I also informed him that it is the review applicants who have been invited to the hearing set for Thursday 1 December 2016. He said that, coming recently into the matter, he had understood that his client was the review applicant. He said he would look into this now and get back to us.”
On the same day at 3:36 PM the Tribunal received an email said to be from “Luo”, sent from Ms Eiawbandansuk’s email address (CB 126):
“I confirmed that I received yesterday email in relation to our review hearing tomorrow. I would like to inform you that visa Applicant Kulchalee is very ill and she suffered some surgical complications as a result of her recent surgical operation. I would like to advise that Kulchalee is the main witness in our hearing and we require her at the hearing. I am now aware that she has a Legal representative Dr Nazir Daawar from Ariana Defence Lawyers who is also my lawyer in this matter and he requested an adjournment of the hearing due to Kulchalee’s ill health conditions. Hereby I inform you that Dr Daawar is our lawyer and I will go to his office soon to sign the required form so he can send it to your office. However meanwhile due to the time restraint I inform you that he is our lawyer and I instruct him now to communicate with you and I consent to his early requested for the adjournment in this matter.
Thank you for your help and consideration.
Luo”.
While this letter made reference to the Tribunal’s email of, in context 28 November 2016 (see [67] above), it made no reference to the Tribunal officer’s conversation with Mr Daawar which occurred a little earlier on the same day. The email said to be from “Luo” was transmitted from an email address which Ms Eiawbandansuk had provided as her email address in her invalid “review” application to the Tribunal (CB 93).
Further, as the Tribunal noted, its email to Mr Luo sent on 28 November 2016 at 11:24 AM, to both the “authorised recipient”, and Mr Luo separately, resulted in the delivery of the correspondence to Mr Luo failing (CB 121 and CB 126 and [19] at CB 139). The other similar attempts to contact Mr Luo on 29 and 30 November 2016 also failed to be delivered ([24], [27] at CB 140 see also CB 127 and CB 129).
There is no evidence now from Mr Luo that he gave instructions to Ms Eiawbandansuk to send the email for him, or to explain why it did not come from the email address Mr Luo had provided in relation to the review (CB 103).
On 29 November 2016, at “16:47”, another Tribunal officer sent an email to Ms Eiawbandansuk, directed to the email address she had used, and stated (CB 127):
“Dear Ms Eiawbandansuk,
I am writing in relation to your e-mail request to adjourn the hearing before the AAT.
The Presiding Member has carefully considered the request for postponement but does not agree to the request. The review applicants have been invited to attend the hearing on Thursday 1 December 2016 and the hearing will proceed on that day…”.
What immediately arises is that the Tribunal officer addressed the email to Ms Eiawbandansuk. She was not a review applicant. There is no evidence before the Court now to indicate that she was acting on behalf of, or on instructions from, Mr Luo who was one of the review applicants, and to whom the hearing invitation had been, properly, issued.
The next day (30 November 2016 at 1:05 PM) the Tribunal received another email. It was also said to be from “Luo”, but again was sent from Ms Eiawbandansuk’s email address (CB 128):
“…I understood that the Tribunal Member did not accept our request for an adjournment. But I did not understand why the member did not adjourn the hearing when the main witness we rely upon is severely ill and there is no utility we attend the hearing in her absence. This is a situation that at no circumstances the hearing will finish tomorrow but be part-heard as we are relying on Kulchalee’s evidence before the Tribunal and this is our right to put our case before the Tribunal and we believe the Tribunal should give us the opportunity to present our evidence to the Tribunal and this is our natural justice right and it is also dictated by the notion of fairness. And if we are not given this right that means the law hasn’t been considered properly and it will amount to the breach of procedural fairness and natural justice principle. And consequently a ground for appeal in court.
Further we kindly request the member to reconsider our request for an immediate and necessary adjournment of the hearing. As you are aware Kulchalee she is the cook of our restaurant and she is very ill and currently can’t attend her duties due to her ill health and surgical complications and consequently this puts a great deal of stress on us and our business. In fact we are hardly replacing her at the business by performing her duties ourselves. And accordingly attending just a hearing without any utility will badly disturb our business and our lives financially attending twice at the Tribunal and it will take two unnecessary days out of work due to Kuchalee’s absence from the hearing…”.
A Tribunal officer responded by email sent at “14:48” PM on the same day, to Ms Eiawbandansuk’s email address. What is apparently not explained is why, and as late as this time, the Tribunal officer engaged in correspondence with Ms Eiawbandansuk, who was not the review applicant.
In any event, the response is in the following terms (at CB 129):
“Dear Ms Eiawbandansuk,
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
The Presiding Member has carefully considered the latest request for a postponement but does not agree to it. As previously stated the hearing will proceed on 1 December 2016 at 11.:30am as scheduled…”.
At the scheduled hearing neither of the review applicants (Mr Luo or F Zhang) attended (CB 130–CB 132).
The events set out above were considered by the Tribunal in its decision record ([16]–[28] at CB 139–CB 141). The Tribunal considered the various requests for the adjournment. Its decision record provides relevant reasons to explain its conclusion to proceed pursuant to s.362B of the Act to determine the application for review without taking any further action to enable the review applicants (Mr Luo and F Zhang) to appear before it ([28] at CB 140–CB 141).
As set out above, Mr Luo has framed his ground as being one of a denial of procedural fairness at common law. The basis for that ground cannot be sustained in circumstances where the Tribunal’s relevant procedural fairness obligations are not at common law, but derived from the relevant parts of the Act (see s.357A of Division 5 of Part 5 of the Act).
After some prompting by the Court, Mr Daawar agreed that the legal error which the sole ground of the application sought to assert was that the Tribunal’s consideration of the exercise of its discretion, pursuant to s.363(1)(b) not to adjourn the hearing, was legally unreasonable.
Before the Court, Mr Daawar submitted that the Tribunal’s refusal to adjourn the hearing was unreasonable because the Tribunal did not give “proper weight” to the medical evidence and the fact that the “main witness” (Ms Eiawbandansuk) was ill and unable to attend the hearing. Further, it was unreasonable of the Tribunal to proceed with the scheduled hearing date in circumstances where given that she was the “main witness” it would have been of “no utility”, that is futile, for Mr Luo to attend without Ms Eiawbandansuk.
There is no question that the Tribunal’s consideration of the exercise of its discretion in this regard must be legally reasonable (Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [23]–[26], [29], [63] and [88]–[89] and
Further, the Court’s consideration must be shaped by the relevant statute. That is, its terms, scope and purpose (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] and [90], Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [54] –[60] and [78]–[79] and [135]).
As, with respect, was made clear in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (“Singh”), whether the Tribunal’s exercise, or consideration of its power (pursuant to s.363(1)(b) of the Act) was legally unreasonable requires regard to be had to the reasons of the Tribunal, and the evidence before it.
The Tribunal’s reasons for the exercise of its power pursuant to s.363(1)(b) of the Act reflected the “evolution” of what was put before it in relation to the request for the adjournment, as set out above.
The following elements emerge from the Tribunal’s reasoning:
(1)To the extent that the request was made by Ms Eiawbandansuk, or Mr Daawar acting as her representative, then the review applicants who could make such a request were Mr Luo or F Zhang, and not Ms Eiawbandansuk or Mr Daawar acting on her behalf ([20]–[21] at CB 139).
(2)On considering the claims and evidence concerning Ms Eiawbandansuk’s medical condition, the Tribunal found that the evidence did not state that Ms Eiawbandansuk was unable to attend the hearing for medical reasons ([20] and [23] and [26] at CB 139–CB 140).
(3)The invitation to the hearing had been issued to Mr Luo and F Zhang as the review applicants. Ms Eiawbandansuk was not a review applicant. While Ms Eiawbandansuk may have been required to give evidence, as a witness, there was no medical evidence to support the claim that she was in severe pain and discomfort and could not attend the hearing to give evidence ([23] at CB 140).
(4)Further, there was no medical evidence that Ms Eiawbandansuk would be unable to give evidence, as a witness, by telephone during the hearing ([23] and [26] at CB 140).
The Tribunal’s findings in this regard which supported the exercise of its statutory discretion were all reasonably open to the Tribunal on what was before it.
As set out above, there was some indication in the various communications that the review was being prosecuted by Ms Eiawbandansuk, subsequently with her representative Mr Daawar, and not Mr Luo. However, the Tribunal made no finding in this regard. Once the Tribunal received the notification said to be from “Luo” (see [74] above) that indicated that Mr Daawar was acting for Mr Luo, the Tribunal proceeded on this basis.
There was no legal error in the Tribunal’s finding that Mr Luo and F Zhang were the review applicants, and not Ms Eiawbandansuk. The Tribunal gave cogent reasons for this finding which were reasonably open to it on what was before it (see [13]–[15] at CB 138–CB 139, and see [5] above). Nor were the Tribunal’s findings in this regard challenged by the sole ground of the application, or by any submissions before the Court.
In this light, it was reasonably open to the Tribunal to treat Ms Eiawbandansuk’s desire (and as that was expressed in correspondence from Mr Daawar, and from “Luo”) to attend the hearing, to be only in her capacity as a witness.
In this regard, the Tribunal was under no statutory or legal compulsion to take evidence from Ms Eiawbandansuk. This is because neither Mr Luo or F Zhang made any such request consistent with s.361 of the Act, which set out the Tribunal’s obligation in relation to s.360A of the Act, and the review applicant’s discretion (to be exercised within 7 days of the date of the notification of the invitation to hearing) to give written notice to the Tribunal that the review applicant wants it to take evidence from a nominated person.
There is no evidence before the Court that this occurred. In that circumstance the Tribunal cannot be said to have failed in its statutory obligation in relation to Ms Eiawbandansuk, and whether she was to give evidence as a witness. Mr Luo has not satisfactorily explained whether the Tribunal was statutorily obliged, or otherwise compelled, to invite Ms Eiawbandansuk to give evidence.
Mr Daawar’s submission that the Tribunal did not give “proper weight” to the medical evidence and related claims concerning Ms Eiawbandansuk’s medical condition cannot be accepted.
The Tribunal relevantly reasoned ([23] at CB 140):
“23. The Tribunal again considered the request for a postponement but did not agree to it. The hearing invitation was to the review applicants to attend the hearing. The letter from Dr David Joseph stating that the visa applicant had a post-operative appointment on 2 December 2016. The hearing was on 1 December 2016. Dr Joseph stated that the visa applicant’s surgery was booked for 2 November 2016 although there is no medical evidence that it took place. If it did, this was one month ago. Dr Joseph did not say that the visa applicant was unable to attend the hearing on 1 December 2016 for medical reasons. As well, it is the review applicants who were invited to attend the hearing. While the Tribunal informed the review applicants that it may wish to take evidence from the visa applicant and the Tribunal requested that they arrange for the visa applicant to attend the hearing, the Tribunal is not satisfied that the visa applicant was unable to attend because there was no medical evidence to support the claim that she was in severe pain and discomfort and could not attend the hearing to give evidence. There is no medical evidence that the visa applicant would be unable to give evidence on the telephone if the Tribunal considered that it would telephone her during the hearing.”
On the evidence before the Court, the Tribunal engaged with, and considered, the medical evidence. Its reasoning logically arose from that evidence. Its finding that there was no medical evidence to support the claim that she was unable to attend the hearing was reasonably open to it on what was before it.
Mr Daawar’s submission that it was unreasonable of the Tribunal to refuse the adjournment of the hearing because it would be of “no utility”, that is futile, to conduct the hearing without the main witness, Ms Eiawbandansuk, does not reveal jurisdictional error in the Tribunal’s decision.
As the Minister correctly submitted it is not for Mr Luo, the review applicant, (or in the current circumstances certainly not Ms Eiawbandansuk) to determine who is the “main witness”, or even, not a “witness”.
The statutory regime makes clear that this is a question for the Tribunal to determine in the proper conduct of the review.
As set out above, the review applicants (for current purposes – Mr Luo) were properly invited to a hearing pursuant to s.360 of the Act. Mr Luo was directed, by the relevant information provided, to the mechanism by which he could request the Tribunal to call a witness. He was required by statute, to do so within 7 days of the receipt of the invitation to the hearing.
That mechanism is set out at s.361 of the Act. Mr Luo did not utilise this opportunity to advise the Tribunal that he wanted Ms Eiawbandansuk to attend as a witness.
In any event, the Tribunal did not rely on any such finding in its reasoning. Rather it proceeded on the basis that Mr Luo wanted Ms Eiawbandansuk to attend, but for the reasons given was not satisfied that there was sufficient medical evidence to support the proposition that she could not.
Nor do I accept, the submission that it would have been of “no utility”, that is futile for Mr Luo to attend the hearing in the absence of Ms Eiawbandansuk.
What this submission failed to comprehend is that while Ms Eiawbandansuk was the visa applicant, the efficacy of any possible grant of the visa, depended also on the sponsorship provided, relevantly, by Mr Luo.
At [31] (CB 141) the Tribunal stated:
“31. Schedule 3 criterion 3004 requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas that were held by the applicant. In addition, the Tribunal must be satisfied that the applicant would have been able to satisfy the criteria or be granted a visa of the class applied for on the day she last held a substantive or criminal justice visa or last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and that the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia. (Schedule 3 criterion 3004 is extracted in the attachment to this decision.)”.
Further at [34] (CB 141):
“34.The Tribunal will firstly consider whether the visa applicant satisfies Schedule 3 criterion 3004(d) which requires that there are compelling reasons for granting the visa. The review applicant did not attend the hearing and the Tribunal was unable to take evidence from them about compelling reasons for granting the visa. The review applicants did not provide any evidence to the Tribunal after they lodged the application for review other than an email from Luo on 30 November 2015 stating that the visa applicant is the Cook at their restaurant and cannot attend her duties due to “ill health and surgical complications” and this has put a great deal of stress on them and their business.”
In determining whether Ms Eiawbandansuk was not the holder of a substantive visa (as otherwise required) because of circumstances beyond her control, the Tribunal also considered the evidence that had been provided by Mr Luo as the visa sponsor ([34]–[36] at CB 141–CB 142).
There were clearly matters about which Mr Luo, as the visa sponsor, and operator of the business in which the employment position which was the subject of the sponsorship was situated, could have given evidence to assist in the Tribunal’s consideration arising from the conduct of the review.
In the circumstances, it is clear that Mr Luo’s failure to attend the hearing to which he had been invited was an important element in the Tribunal’s consideration ([38] and [39] at CB 142):
“38. Whilst the Tribunal accepts that initial training of a new cook for the review applicants may incur time and money, the Tribunal did not have the opportunity of taking evidence at the hearing from the review applicant because they did not attend the hearing. The Tribunal is not satisfied on the evidence that the applicant’s employment in the review applicants’ business is a compelling reason for the grant of the visa. The Tribunal has not seen documentary evidence that the visa applicant continues to work full-time for the review applicants at the time of the Tribunal’s decision.
39. The Tribunal is not satisfied that employment in the occupation, or the employer’s support for such employment, gives rise to compelling reasons for the grant of the visa. The Tribunal considers that recruiting, training and replacing staff members is a normal aspect of the operation of almost all businesses and this occurs on an ongoing basis, and does not constitute compelling reasons.”
In short, whatever Ms Eiawbandansuk may have wanted to say at the hearing, there were clearly matters of relevance about which only Mr Luo could have given probative evidence.
In all, the Tribunal did give an “evident and intelligible justification” for its decision not to postpone or adjourn the hearing. The Tribunal’s reasoning, findings and conclusion, were within its “area of decisional freedom” (Li at [28], [66], [105], Singh at [44]).
Mr Luo has not sought to challenge any other reasoning or findings of the Tribunal. The sole ground of the application to the Court is not made out. The application is to be dismissed on that basis. The relief Mr Luo seeks is to be refused.
An Additional Matter
The Minister also argued that there is a separate and independent basis not to grant that relief, even in circumstances if the Court were to have found jurisdictional error in relation to the ground. That is, that the grant of the relief, to return the application for review to the Tribunal for reconsideration, would be an exercise in futility.
This is because of certain regulatory amendments introduced to the Regulations in 2018, by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth).
This amendment relevantly through reg.2.72 and reg.2.73 of the Regulations, introduced changes to the subclass 457 visas, the visa which Ms Eiawbandansuk (and her partner) had applied for following her employment nomination by, Mr Luo and F Zhang which had been approved on 7 July 2015.
Despite having the benefit of the Minister’s written submission, when this matter was first raised, Mr Daawar made no written submission in reply to this argument. Nor did he refer to it in his submission before the Court.
When pressed by the Court after hearing the Minister’s oral submissions (where it was again raised) Mr Daawar stated that this was not the appropriate venue in which to make any response. His argument appeared to be that if there is jurisdictional error in the Tribunal’s decision then the matter should be returned to the Tribunal.
He further stated that if the Tribunal raised the issue of the changes in the statutory and regulatory regime there were “other pathways” that would lead to the grant of the visa to Ms Eiawbandansuk and that the appropriate place to pursue this was the Tribunal, and not the Court. This submission overlooked the fact that the relief Mr Luo sought was at the discretion of the Court to grant.
In any event, the Minister made clear before the Court that the Court would only need to consider this argument if jurisdictional error were found in the Tribunal’s decision. Given, as set out above, that I did not find any jurisdictional error, it is not necessary to consider this argument in this case.
Conclusion
In the circumstances set out above, it is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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