Malhi v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 253
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malhi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 253
File number(s): BRG 368 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 28 February 2025 Catchwords: MIGRATION – Employer Nomination (Permanent) (Class EN) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – error of law – failure to consider – futility – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) 347(3A)(a), 359A, 476(1)
Migration Regulations 1994 (Cth) cl 186.223, 186.311 of Schedule 2
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gido-Christian v Minister for Immigration [2007] FMCA 825
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Sheng v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 725
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Varsi v Minister for Home Affairs [2019] FCA 504
Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 17 February 2025 Date of hearing: 17 February 2025 Place: Brisbane Applicants: The first applicant appeared self-represented. Solicitor for the Respondents: Ms Satyendra - MinterEllison. The second respondent filed a submitting appearance save as to costs. ORDERS
BRG 368 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARAMJEET KAUR MALHI
First Applicant
JASPREET SINGH
Second Applicant
HARNOORPREET KAUR SRAN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first and second applicants are to pay the first respondent’s costs, fixed in the amount of $5900.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (“the delegate”) to refuse to grant the applicants an Employer Nomination (Permanent) (Class EN) visa.
BACKGROUND
Application for a visa and previous proceedings
The applicants are citizens of India. On 29 June 2017, the first applicant (“the applicant”) made an application for an Employer Nomination (Permanent) (Class EN) visa (“the visa”) in the Temporary Residence Transition Stream to work in the position of Program or Project Administrator (“the nominated position”) (Court Book (“CB”) 26-41). The second and third applicants (the applicant’s husband and daughter respectively) were included in the application as members of the applicant’s family unit (CB 28-31). The applicant’s employer, Energetic Cleaning Services Pty Ltd (“the nominator”), had applied for an Employer Nomination for the applicant in the nominated position (“the nomination application”).
On 16 July 2018, the Department informed the applicant that the nomination application had been refused which meant that the applicant’s visa application could not be approved and invited the applicant to comment on this information (CB 130-133). The applicant did not respond.
On 5 August 2018, the nominator applied to the Tribunal to review the delegate’s decision to refuse the nomination application. On 29 June 2021, the Tribunal affirmed the decision not to grant the nomination application. The nominator sought judicial review of that decision to this Court. On 1 March 2023, orders were made by consent quashing the Tribunal’s decision in relation to the nomination application and remitting the matter to the Tribunal to determine according to law. The application for review was later withdrawn by the nominator on 24 April 2024.
On 14 August 2018, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the requirements of cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), as the applicant did not have an approved sponsor for the nominated position (“the delegate’s decision”) (CB 140-144). Accordingly, the delegate found that the secondary applicants did not satisfy the requirements of cl 186.311 of Schedule 2 to the Regulations as they were not members of the family unit of a person who met the primary visa criteria and holds a subclass 186 visa (CB 142-144).
Application for review to the Administrative Appeals Tribunal
On 25 August 2018, the applicants applied to the Tribunal for review of the delegate’s decision on the visa application.
On 4 August 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa as the applicant was not the subject of an approved employer nomination (the “first Tribunal decision”) (CB 155-160).
On 7 September 2021, the applicants applied to this Court for judicial review of the first Tribunal decision.
On 23 October 2023, orders were made by consent quashing the first Tribunal decision and remitting the matter to the Tribunal to determine according to law (CB 162-163).
On 25 October 2023, the Tribunal wrote to the applicants informing them that their application for review will be reconsidered by a member of the Tribunal (CB 170).
On 1 May 2024, the Tribunal wrote to the applicants inviting them to comment on or respond to the information that on 24 April 2024 the nominator had withdrawn their application for review with the Tribunal of the nomination application (“the 359A invitation”) (CB 186-187). The Tribunal said that the information was relevant to the review because the primary applicant must satisfy the criteria in cl 186.223 of the Regulations which states that the Minister has approved the nomination. The Tribunal stated that if they do not receive a comment or response within the period allowed the applicants will lose any entitlement to appear before the Tribunal to give evidence and present arguments, and that the Tribunal may make a decision without taking any further action to obtain the applicants’ views on the information (CB 187). The Tribunal invited the applicants to comment on the following information by 15 May 2024:
On 29 June 2017, you lodged an application for an Employer Nomination (Permanent) (Subclass 186) visa with the Department of Home Affairs (then called the Department of Immigration and Border Protection) (the Department)
On 16 July 2018, the nominator, Energetic Cleaning Services Pty Ltd, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 5 August 2018. The Tribunal made a decision on 29 June 2021, which was subsequently remitted back to the Tribunal following a decision from the Federal Circuit and Family Court of Australia.
On 24 April 2024, the nominator withdrew their application for review with the Tribunal.
On 3 May 2024, the Tribunal invited the applicant to attend a hearing on 22 May 2024 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 189-192).
On 15 May 2024, the applicants’ representative wrote to the Tribunal requesting an extension of time to respond to the 359A invitation. The applicants’ representative attached a letter from the first and second applicants that stated (CB 202-203):
I would like to advise that I am in receipt of two emails from AAT Tribunal as per below:
1. Email received 01 May 2024 requiring an Invitation to Comment for my visa on the basis of my nomination being withdrawn by the nominator for which I was requested to respond by 10/05/2024.
2. Email received on 3 May 2024 requesting for me to attend for a hearing on 22 May 2024.
I would like to seek some additional time at least by 15/06/2024 for me to provide comments for the Invitation to Comment. I understand that there is no point in attending a hearing now that the nomination has been withdrawn so would like to advise that I would not attend the hearing
Please let me know on my request for the time extension for Invitation to comment.
Thanks in advanced for your assistance.
Yours sincerely
On 16 May 2024, the Tribunal wrote to the applicants’ migration agent refusing the applicants’ request for an extension stating that the member concludes that “the applicant has had adequate notice, and concedes that there is no utility, so an extension is not justified in these circumstances” (CB 205).
The applicants did not attend the hearing scheduled for 22 May 2024 and the Tribunal’s hearing record shows that the Tribunal closed the hearing (CB 207-209).
On 28 May 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 216-221).
THE TRIBUNAL’S DECISION
The Tribunal began by setting out that the applicant had applied for an Employer Nomination (Permanent) (Class EN) visa in the Temporary Residence Transition Stream and that the delegate had refused to grant the visa because the applicant did not meet cl 186.223 of the Regulations because the nomination lodged by the nominator had been refused by a delegate of the Minister ([2]-[5]).
The Tribunal stated the applicants did not appear before the Tribunal for the hearing scheduled on 22 May 2024. The Tribunal referred to the letter of 15 May 2024 from the first and second applicants in which they stated, “I understand that there is no point into attending a hearing now that the nomination has been withdrawn so would like to advise that I would not attend the hearing” ([7]-[9]).
The Tribunal identified that the determinative issue was whether the applicant’s nomination has been approved ([10]).
The Tribunal referred to cl 186.223 of the Regulations which requires that the position to which the visa application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition Stream that identifies the visa applicant; that the nomination has been approved; and, that the application has not subsequently been withdrawn ([11]-[12]).
The Tribunal then referred to the s 359A invitation which invited the applicants to comment on the information that the nominator had withdrawn its application for review by the Tribunal of the delegate’s refusal of the nomination application. The Tribunal set out the full text of the letter ([13]).
The Tribunal then referred to the applicants’ letter to the Tribunal on 15 May 2024 requesting an extension of time until 15 June 2024 to respond to the Tribunal’s invitation to comment ([14]). The Tribunal set out the text of the letter.
The Tribunal noted that the request for an extension of time had been declined and stated that the reasons were because the applicants did not provide a reason why further time was needed to respond. The Tribunal further observed that the applicant conceded that there was no utility in providing additional time, as the applicant admitted that the nomination was withdrawn and the applicant had said there was no point in attending a hearing ([15]).
The Tribunal said it was satisfied, as acknowledged by the applicants’ letter on 15 May 2024, that the applicant does not have an approved sponsor for the nominated position ([16]).
Therefore, the Tribunal concluded stating that as there was no approved employer nomination and the nomination having been withdrawn, cl 186.233(2) and (3) of the Regulations are not met, and that it follows, cl 186.233 of the Regulations as a whole is not satisfied ([17]-[18]).
The Tribunal found that as the primary applicant did not meet the requirements in cl 186.233 of the Regulations, the secondary applicants could not be granted a visa as they are not members of the family unit of a person who holds a Subclass 186 visa ([19]).
The Tribunal stated that the applicant only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry Stream and that no other claims were made in respect to other visa streams ([20]).
The Tribunal affirmed the delegate’s decision not to grant the applicants an Employer Nomination (Permanent) (Class EN) visa ([21]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 28 June 2024. The applicant also filed an affidavit sworn on 28 June 2024. The affidavit sets out the background to the visa application, grounds of appeal and annexed a copy of the Tribunal’s decision, a copy of the delegate’s decision and a copy of the s 359A invitation.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they sought to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions, the affidavit of Sophie Elizabeth Edmonstone filed on behalf of the first respondent on 4 February 2025 annexing a screenshot from the Department’s database Integrated Client Services Environment (“ICSE”) in respect of the nominator, the affidavit of Jonathan Aaron Djasmeini filed on behalf of the first respondent on 13 February 2025 annexing a screenshot from the ICSE in respect of the third applicant’s travel history and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that she had these documents in Court with her. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person unrepresented. The applicant was given the opportunity to make oral submissions in support of the application for judicial review and in reply to the first respondent’s submissions.
CONSIDERATION
For the applicants to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
Review decision made on 30 May 2024 by the Second Respondent under the Migration Act 1958 (Cth) ('the Act’) is subject of jurisdictional errors.
The jurisdictional errors in review of the Migration decision to be based upon the Act and Migration Regulations 1994 (Cth) pursuant to Reg. 5.19 'Approval of nominated positions' under Part 5 Division 5.3.
Ground Two:
The Second Respondent failed to consider the Applicant's request for extension of time for the Applicant to provide comments on the Invitation to Comment on the Applicant's Visa application. Notwithstanding the Applicant's own views about the Nomination application, the Second Respondent erred for the following reasons.
Particulars:
The Second Respondent:
a. is satisfied that the additional time required by the Applicant to respond is not needed;
b. did not provide additional time to the Applicant to respond;
c. is satisfied that the Applicant did not provide a reason for extension, contrary to Applicant's letter dated 15 May 2024;
d. failed to review the claim intended to be made by the Applicant to provide comments on the Applicant's Visa application;
e. found that the decision on the Nomination application made by First Respondent is sufficient to decide the Applicant's review of Visa application;
f. found that the Applicant has sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream wherein the Applicant has made no claims in respect of the other visa streams; and
g. did not allow the Applicant to provide comments in relation to satisfying the criteria for a Subclass 186 Visa in the Transition Residence stream. The Applicant could not have sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream and not make a claim under the Transition Residence stream as informed by the Second Respondent. This is because the Applicant did not lodge an application for a Subclass 186 Visa in the Direct Entry stream but instead lodged a Subclass 186 Visa in the Transition Residence stream.
leading to a decision under review to affirm the decision made by the First Respondent.
Grounds one and two
Ground one and two of the application do not particularise how it is said that the Tribunal’s decision “is subject to jurisdictional error.” The applicants did not file any written submissions in which this ground might have been particularised or explained.
The first respondent submitted that the grounds of review should be dismissed on the basis that they are unparticularised (first respondent’s written submissions (“FRS”) at [33] referring to WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35] per Gilmour J; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775). That may be so, however, it is also the position that the Court should be reluctant to dismiss a ground of review in circumstances where an applicant is self-represented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[10] per Colvin J). The Court has proceeded on that basis.
The Court invited the applicant to explain what errors by the Tribunal she was referring to in ground one of her application. The applicant said the grounds in the application had been drafted by a friend and that they “looked okay” to her. The applicant also said that she had completed all of the required documents and so did not know “why they refuse it”. The applicant was unable to assist the Court in particularising or explaining grounds one and two.
No jurisdictional error is established on grounds one and two.
Ground three
In ground three, the applicants raise three separate contentions in respect of which the applicants allege the Tribunal erred:
(i)not granting the request for an extension of time to the applicant to respond to the s 359A invitation;
(ii)finding that the decision on the nomination application was sufficient to decide the visa application; and
(iii)assessing the applicant under the Direct Entry stream rather than the Temporary Residence Transition stream.
Request for an extension of time to respond of the s 359A invitation
The applicants contend that they were denied procedural fairness because the Tribunal did not extend the time to allow them to respond to the s 359A invitation in response to their request for an extension of time made on 15 May 2024 (CB 203).
The Tribunal’s procedural fairness obligations are set out exhaustively in Division 5 Part 5 of the Act.
The Court considers that the first respondent complied with those obligations with respect to the s 359A invitation because the Tribunal:
(i)gave to the applicants clear particulars of the information the Tribunal considered would be a reason for affirming the delegate’s decision; explained the consequences of the information being relied upon; and invited the applicants to comment or respond to the information;
(ii)gave the invitation to the applicants by one of the methods prescribed in s 379A, that is, by email to the applicants’ representative; and
(iii)provided the applicants with the prescribed period for giving the information or comments (being 14 days).
Section 359B(4) of the Act contemplates that the Tribunal may extend time to respond to a s 359A invitation, but it is under no obligation to do so. The Tribunal considered whether to extend the time for the applicants to respond to the s 359A invitation. The Tribunal decided not to do so because the applicant had not given any reason for requiring extra time and had stated that given the nomination application had been withdrawn there was no point in attending the hearing. Accordingly, the applicants had not provided any basis for needing an extension.
The Court agrees with the first respondent’s submission that it was open to the Tribunal to refuse to grant an extension of time and that it was not unreasonable to do so (FRS [34] citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332).
No jurisdictional error is established in respect of the matters in the first contention in ground three of the application.
Whether the decision on the nomination application was sufficient to decide the matter
In relation to the second contention in ground three, the Minister submitted that the Tribunal correctly identified that the sole issue before it was whether the applicant met cl 186.223 of the Regulations, which required that the position to which the application related be the subject of an approved nomination application. The evidence before the Tribunal was that the nomination was not approved and that the nominator had withdrawn its application for review. The first respondent filed an affidavit (affidavit of Sophie Elizabeth Edmondstone filed on 3 February 2025) annexing a screenshot from the Department’s ICSE database showing that the nominator had withdrawn the application for review of the decision on the nomination application. Accordingly, there was no approved nomination at the time the Tribunal made its decision on 28 May 2024.
The Court agrees with the first respondent’s submission that cl 186.223 of the Regulations “imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision” (FRS at [37] citing Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [88] per Jagot, Bromberg and Mortimer JJ). Accordingly, in the absence of an approved nomination, the Tribunal, could not do anything other than dismiss the applicant’s application (Varsi v Minister for Home Affairs [2019] FCA 504 at [21] per Markovic J).
The Court further agrees with the first respondent’s submission that having determined that the applicant did not satisfy cl 186.223 of the Regulations, the Tribunal was not under an obligation to make findings in relation to the remaining criteria for the grant of the visa (FRS at [38] referring to Woo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1596 at [32] per Sackville J). The decision on the nomination application was sufficient to decide the review of the visa application.
No jurisdictional error is established in respect of the second contention in ground three in the application.
Tribunal’s reference to the Direct Entry Stream
The applicant contends that the Tribunal incorrectly applied cl 186.233 of Schedule 2 to the Regulations which relates to the Direct Entry Stream.
In the Tribunal’s decision at [5] and [11]-[13] the Tribunal identified and referred to
cl 186.223 of the Regulations which relates to the Temporary Residence Transition Stream. Clause 186.223 of the Regulations was attached to the Tribunal’s decision as “Attachment A” (CB 221).
Then, at [17]-[19] the Tribunal referred to the Direct Entry Stream and cl 182.233 of the Regulations which relates to the Direct Entry Stream. The Tribunal then stated at [20] that the applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry Stream and that no claims had been made in respect of the other visa streams. The Tribunal said that as the requirements that must be met by a person seeking the visa in the Direct Entry Stream have not been met, the decision under review must be affirmed.
The Court agrees with the first respondent’s submission (FRS at [40]) that the mistake by the delegate was typographical in nature. The Tribunal clearly understood that the applicant had applied for the visa in the Temporary Resident Transition Stream. The error in later referring to the Direct Entry Stream does not amount to a jurisdictional error as the error was not material to the Tribunal’s ultimate findings and conclusions (Gido-Christian v Minister for Immigration [2007] FMCA 825 at [136] per McInnis FM; Sheng v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 725 at [91] per Kendall J). The criteria with respect to the Temporary Residence Transition Stream and the Direct Entry Stream both require that the Minister has approved the nomination for the position to which the visa application relates.
No jurisdictional error is established in respect of the third contention in ground three in the application.
Whether the Tribunal had jurisdiction in regard to the third applicant
The first respondent filed an affidavit (of Jonathan Aaron Djasmeini affirmed on 13 February 2025) annexing screenshots from the Department’s ICSE database, relating to the third applicant’s movement history. This showed that the third applicant left Australia on 9 February 2016 and has not returned since.
The first respondent correctly submitted that in respect of a decision which is a Part 5 reviewable decision pursuant to s 338(7A) of the Act, an application for review can only be made by a non-citizen who was physically present in the migration zone at the time the decision was made (s 347(3A)(a) of the Act). The movement records for the third applicant shows that she was not in the migration zone when the delegate’s decision was made. Accordingly, the Tribunal did not have jurisdiction to hear the application for review so far as it concerned the third applicant. The Court does not agree with the first respondent’s submission that this is not a jurisdictional error. The Court is however, of the view that the error is not one which was material to the Tribunal’s decision with respect to the first and second applicants.
Futility
The nominator’s application was not approved by the delegate and the nominator’s application for review by the Tribunal was withdrawn. As noted earlier, the first respondent filed an affidavit (of Sophie Elizabeth Edmondstone affirmed on 3 February 2025) with respect to the withdrawal of the nominator’s application. The ICSE screenshot annexed to that affidavit showed that as of 19 August 2024 the nominator’s application for review was withdrawn on 25 April 2024. The Court is satisfied about this.
Accordingly, for the reasons already given, the applicant could not satisfy the criterion in
cl 186.223 of the Regulations. It follows that even were a jurisdictional error to have been established on any of the other grounds contended for by the applicant, it would be futile for this Court to grant the relief sought.
CONCLUSION
For the reasons given above, no jurisdictional error is established and accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 28 February 2025
0
11
2