Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 95
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95
File number(s): PEG 343 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 27 January 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where the Tribunal schedules a hearing for 7.30am – whether denial of procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360, 363, 476, 479, 486C
Migration Regulations 1994 (Cth), cll 187.233, 187.311
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 139
Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265
Craig v State of South Australia (1995) 184 CLR 163
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZEUIv Minister for Immigration and Citizenship [2008] FCA 1338
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 90 Date of hearing: 22 January 2021 Place: Perth Applicants: The first applicant appeared in person and on behalf of the second applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 343 of 2020 BETWEEN: MD ABDULLAH AL MAMUN
First Applicant
PEASA ZAMAM
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicants are citizens of Bangladesh. The first applicant appears to have arrived in Australia on a student visa in 2012 (Court Book (“CB”) 13 and 17). The second applicant appears to have arrived in 2017 (CB 13). They are husband and wife respectively.
On 9 March 2017, the applicants applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 1-19). The first applicant was the primary applicant. He was nominated for the position of “Retail Manager” with Fine Enterprises Pty Ltd (the “sponsor”). The second applicant was identified as a member of the family unit.
On 15 January 2018, the applicants were advised by the then Department of Immigration & Border Protection that, as the nomination from their sponsor had been refused, they could not be granted the visa (CB 23-26). The applicants were invited to comment on this information or withdraw their application.
On 22 January 2018, the applicants’ agent advised the Tribunal that the applicants did not wish to withdraw their application (CB 26).
On 1 February 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 29-37). The delegate found that the first applicant did not satisfy cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not the subject of an approved nomination. As the first applicant did not meet the visa criterion, the second applicant could also not be granted the visa.
On 1 February 2018, the applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 38-39).
On 16 September 2020, the first applicant attended a hearing before the Tribunal via telephone. He did so without the assistance of his migration agent (CB 66-71).
On 6 October 2020, the Tribunal invited the applicants to comment on the following information (CB 74):
•On 2 October 2020, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Fine Enterprise Pty Ltd ATF Justin Sooseng Teh Family Trust.
This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).
If we rely on this information in making our decision, we may find that Mr Md Abdullah Al Mamun does not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review
On 19 October 2020, the applicants’ agent responded to the Tribunal stating (CB 76):
In relation to the above mentioned application and your letter from 6th October 2020, please be advised that our client Mr Mamun wishes to proceed with AAT hearing.
On 23 October 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 81-86).
On 17 November 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 6 pages long and spans 26 paragraphs. It is dated 23 October 2020.
The Tribunal first identified the type of visa the applicants had applied for and the relevant visa criterion (at [1]-[3]). The Tribunal confirmed that the applicants had sought the visa via the Direct Entry scheme, that the first applicant was nominated for the position of Retail Manager and that he had had a sponsor when he applied for the visa (at [4]). The Tribunal then summarised the delegate’s decision (at [5]).
The Tribunal noted that the first applicant attended a hearing on 16 September 2020 by telephone. The applicant was in Perth. The Tribunal member was in Brisbane. It appears the hearing occurred at 7:30am Perth time. This is discussed further below.
The Tribunal noted that the applicants’ agent (who was also in Perth) did not attend the hearing but that the first applicant had confirmed that he wished to proceed with the hearing (at [6]-[9]).
The Tribunal noted that the issue before it was whether there was an approved nomination (at [11]). The Tribunal then set out the requirements of cl 187.233 of the Regulations (at [12]-[13]).
At [14], the Tribunal stated:
During the hearing, the Tribunal advised the applicant that the Tribunal had before it copies of notations from records of the Department which indicated that the applicant is regarded by the Department as a Client of Interest. The applicant was advised the notes referred to allegations regarding possible fake documents and employer sponsor breach. The Tribunal advised him that the Tribunal had received no further information regarding these allegations and that the Tribunal did not regard the documents to be relevant to the current application in which the issue to be addressed was whether there was an approved nomination. The Tribunal advised him that it placed no weight on the notations for the purposes of this application.
The Tribunal then confirmed that the sponsor had made a nomination application in relation to the first applicant and that the delegate had refused that nomination. It then noted that the sponsor had applied to the Tribunal for review (at [15]) and that the Tribunal had affirmed the delegate’s decision not to approve the sponsor’s nomination. That determination occurred on 2 October 2020 (at [17]).
The Tribunal then described the evidence that the first applicant had provided at the hearing on 16 September 2020 (at [16]).
The Tribunal then referred to the invitation to comment sent on 6 October 2020 (at [18]) and the response that was received by the applicants’ agent on 19 October 2020 (at [19]).
The Tribunal continued:
20. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 1 February 2018 of the reasons for the visa application being refused. The Tribunal has also taken into account that the applicant was advised at the hearing on 16 September 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.
21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.187 .233 and 187.311 of Schedule 2 to the Regulations.
The Tribunal noted that the nomination application had not been approved and that, having affirmed the delegate’s decision in that regard, the first applicant had no approved nomination (at [22]). Accordingly, the first applicant did not meet cl 187.233 (at [23]-[24]). Further, as the first applicant did not meet the primary criteria, the Tribunal found that the second applicant did not meet cl 187.311 (at [25]) and could not be granted a visa.
The Tribunal affirmed the decision not to grant the applicants the visa (at [26]).
PROCEEDINGS IN THIS COURT
In their judicial review application filed 17 November 2018, the applicants plead:
The Second Respondent, in making its decision (or purported decision) of 23 October 2020 to affirm the decision of the delegate of the First Respondent to not to grant the Applicant a Regional Employer Nomination (Permanent) (Class RN) visa committed jurisdictional error in not considering
1. The Tribunal dismissed nomination application made by my ex-employer Mr Justin Sooseng (a director of the sponsored company Fine Enterprise Pty Ltd) without giving him opportunity to represent arguments to this matter.
2. Failed to genuinely consider
(a) I was unable to obtain more information about hearing and persuade Mr Justin to attend hearing as it was 7.30am at Perth local time and Migration agent were not available to attend hearing.
(b) The Administrative Appeal Tribunal affirmed my application without considering my request of hearing. The Tribunal had given me 14 days to response and comment by 20th October 2020. I had requested for hearing through my migration agent on 19th October to proceed hearing. However, The Tribunal affirmed decision without hearing.
3. Took into account irrelevant considerations
In an affidavit affirmed 12 November 2020, the first applicant stated that he was in the process of engaging a lawyer and would file an amended application and further supporting affidavit when he had engaged a lawyer.
No lawyer was engaged by the applicants despite what appears to be their best efforts to do so.
Despite the opportunity to file an amended application, supporting affidavit and an outline of written submissions, nothing further was filed by the applicants.
The materials before the Court thus include those described above, a Court Book numbering 86 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 15 January 2021.
The applicants appeared before this Court on 22 January 2021 without legal representation. The first applicant indicated that he would speak on his own behalf and on behalf of the second applicant. The Court confirmed that the first applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that he had “no knowledge of immigration law and, despite his best efforts, had been unable to obtain legal assistance”. The Court is sympathetic to the concerns raised. Fewer and fewer applicants now appear in this Court with legal assistance and, despite the best efforts of the relevant professional bodies, the provision of pro bono assistance is now bordering on non-existent in the Perth registry. Unfortunately for the applicants, there is no right to legal assistance in this Court: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265. The Court will, however, in its duty to self-represented litigants remain astute and alert to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The first applicant also explained to the Court that he only found out that his sponsor could not attend the Tribunal’s hearing the day prior to the hearing. He said he was not aware that the sponsor’s nomination hearing was at the same time as his own hearing. He believed that the hearing on 16 September 2020 was for his sponsor – not him. He was also “devastated” when he found out that his sponsor would not attend the hearing.
The first applicant also stressed that “his agent had asked for another hearing”.
The first applicant also submitted that he only learnt the day prior to the 16 September 2020 Tribunal hearing that the sponsor’s franchise had closed and the “sponsor could no longer support him”. The applicant stated that he asked the Tribunal whether he could “substitute another of the sponsor’s business” as his sponsor and thinks he should have been given more time to explore this option and discuss it with the Tribunal (as per s 363(1)(b)).
The Court will address these oral submissions below.
CONSIDERATION
Ground 1
Ground 1 states:
The Tribunal dismissed nomination application made by my ex-employer Mr Justin Sooseng (a director of the sponsored company Fine Enterprise Pty Ltd) without giving him opportunity to represent arguments to this matter.
The error the applicants refer to in this ground of review (being an alleged denial of procedural fairness) relate to the sponsor’s review. This Court is confined to considering if jurisdictional error arose in the Tribunal’s processes or its decision in relation to these applicants – not the sponsor.
The applicants have no standing to challenge the sponsor’s decision: the Act, s 479(a) and 486C. For this Court to have the power to review the sponsor’s decision, an application had to be lodged by the sponsor. That has not occurred.
Accordingly, in circumstances where the sponsor’s decision is not the subject of judicial review, whether or not the Tribunal did deny the sponsor procedural fairness is irrelevant to whether any jurisdictional error arises in relation to the applicants’ application for judicial review.
Ground 1 is dismissed.
Ground 2
Ground 2 states:
Failed to genuinely consider
(a) I was unable to obtain more information about hearing and persuade Mr Justin to attend hearing as it was 7.30am at Perth local time and Migration agent were not available to attend hearing.
(b) The Administrative Appeal Tribunal affirmed my application without considering my request of hearing. The Tribunal had given me 14 days to response and comment by 20th October 2020. I had requested for hearing through my migration agent on 19th October to proceed hearing. However, The Tribunal affirmed decision without hearing.
The Court will consider (a) and (b) in turn.
Ground 2(a)
By sub-ground 2(a), the applicants appear to take issue with the time at which the hearing was scheduled.
This is a Federal Tribunal. The Tribunal member was located in Brisbane. The hearing was scheduled to commence at 9:30am Brisbane time. The applicants, however, lived in Perth. The hearing time was, accordingly, scheduled for 7:30am Perth time.
The scheduling of a hearing for 7:30am strikes the Court as unusual and, frankly, unacceptable.
There is no statutory rule that requires that the Tribunal’s hearings occur at a specific time. The question arises, however, whether a 7:30am start denied these applicants a real and meaningful opportunity to attend and participate in the hearing.
The first applicant told the Court that he personally had “no issue” with the 7:30am start. Others might not have been quite so accommodating. He suggested, however, that the early start was the reason his sponsor and migration agent did not attend the hearing.
There is no evidence to support this suggestion. To the extent that the migration agent did, in fact, refuse to attend the hearing because of a 7:30am start, the Court directs the applicants to the powers of the Office of the Migration Agents Registration Authority – an entity charged with investigating and addressing alleged misconduct on the part of migration agents.
Here, the Tribunal sent the applicants the invitation to attend the hearing on 25 August 2020. That invitation noted that the hearing would start at 7:30am (CB 49). That invitation stated as follows:
If you are not able to participate in this telephone hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submissions you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of that consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
No request for an adjournment or for the Tribunal to reschedule the hearing until a later time that day was advanced. The migration agent advised the Tribunal that the first applicant would be attending. The agent did not take any issue with the allocated hearing time.
It is noted that the Tribunal asked the first applicant if he was prepared to proceed at the hearing without his agent in attendance. The first applicant stated that he was willing to do so (at [9]). The Tribunal also appears to have provided the first applicant the opportunity to provide evidence and submissions during the hearing (see [16]). At no time did the first applicant refer to any issues with the time of the hearing or with his ability to proceed.
Hearing a matter at 7:30am Perth time does not constitute a breach s 360 of the Act. The first applicant attended the hearing. He took no issue with the hearing proceeding at the time allocated and in the manner it did (by telephone and without representation). The first applicant also clearly engaged with the Tribunal at this hearing (see [16]).
The Tribunal did not breach any procedural fairness obligations. On the evidence, the applicants had a proper and meaningful hearing.
To the extent that it is argued that the scheduling of the hearing at 7:30am was “legally unreasonable”, the Court does not consider this to be the case. The applicants were advised that they had the opportunity to request an adjournment if they had any issues with the hearing proceeding when scheduled (CB 50). They did not do so. Despite being represented, they took no issue with the scheduled time. While it is clearly undesirable for a hearing to be scheduled at 7:30am, the decision to do so was not arbitrary or capricious. It is not, however, a scheduling decision that is to be encouraged. It reflects poorly on the Tribunal as a federal entity.
Ground 2(a) is dismissed.
Ground 2(b)
In relation to ground 2(b), the applicants seem to suggest that their agent requested a further hearing and that the Tribunal decided the application without that hearing. At the hearing before the Court, the first applicant also raised an issue of whether it was reasonable for the Tribunal to make the decision without giving the applicants “more time”.
The first applicant also advised the Court that in relation to the 16 September 2020 hearing he did not know that it was his own hearing as well as the sponsor’s hearing that was scheduled. He suggested his agent also did not know that this was the case.
Dealing with this issue first, the invitation to attend the hearing on 16 September 2020 was addressed to the applicants. It specifically stated:
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.
The fact that the applicants (or their agent) overlooked that their hearing was scheduled to be heard consecutively with the sponsor’s hearing is unfortunate. While the first applicant may well have seen other decisions of the Tribunal where the Tribunal first had a hearing of the nomination application and then, on a different date, held a hearing for the visa applicant, that is not always the case. Here, the Tribunal heard the matters on the same day. It is open for the Tribunal to do so (and it is often the case that the Tribunal will hear both a nomination application and a visa application consecutively).
On the evidence, any error in this regard was an error on the part of the applicants and/or their migration agent. The invitation to attend was clear.
The applicants also appear to be arguing that they should have been invited to a further hearing or that they should have been given “more time”.
The migration agent’s email dated 19 October 2020 relevantly reads:
In relation to the above mentioned application and your letter from 6th October 2020, please be advised that our client Mr Mamun wishes to proceed with AAT hearing.
As the first applicant indicated at the hearing, he and his agent were under the impression that the applicants had not yet had a hearing. This was incorrect for the reasons explained above.
The applicants’ then seem to argue that they should have been invited to attend a “further hearing” before the Tribunal. At the hearing before this Court, the first applicant indicated that he wanted to appear before the Tribunal to explore whether he could substitute another business nomination.
Regardless of how widely or generously one reads the agent’s email dated 19 October 2020 (noting the use of the phrase “wishes to proceed with AAT hearing”), there was simply no “right” to a further hearing in the circumstances of this case. The first applicant had attended a hearing on 16 September 2020 and had given evidence in relation to his application. Once that hearing had finished, there was no further right or entitlement under s 360 of the Act to attend a hearing unless a new determinative issue arose that was not discussed at the hearing: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138. There is no evidence that that was the case here.
The Court notes that the invitation to comment and respond to information sent 6 October 2020 did state that if the applicants did not respond, they would lose any entitlement they might have otherwise had to attend a hearing. As stated above, having already held a hearing, unless the determinative issue changed, the applicants otherwise had no right to appear before the Tribunal again. The mere fact that the invitation to comment was given did not require a further hearing: SZEUIv Minister for Immigration and Citizenship [2008] FCA 1338. Whether a second hearing is required rests upon whether the applicants were adequately given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Here, the applicants were given the opportunity to comment on what was ultimately the determinative issue at the hearing. As the Tribunal stated:
16…The Tribunal explained to him that the nominator had failed to produce evidence in support of the nomination application at the hearing and had failed to attend the hearing. The Tribunal advised him of the strong likelihood that the delegate's decision on the nomination application would be affirmed and the consequences of such a decision for this application, even if these circumstances had not been caused by his actions and were beyond his control. The applicant said that he understood this and that it was probably just his bad luck.
Accordingly, the applicants had no further right or entitlement to attend a further hearing.
The applicants also appear to be suggesting by ground 2(b) and the first applicant’s oral submissions that it was unreasonable for the Tribunal not to give them “more time”.
At the hearing before this Court, the first applicant referred to s 363(1)(b) of the Act. Section 363(1)(b) concerns the power of the Tribunal to adjourn the review from time to time. The first applicant appeared to suggest that, in light of the agent’s email dated 19 October 2020, the Tribunal should have given the applicants “more time”. He explained that additional time could have been used to consider whether the nomination could have been transferred or substituted. He also said that he wanted to “discuss” the option of a new nomination with the Tribunal.
Here, the Tribunal did consider whether to “adjourn” the review. It stated:
20. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 1 February 2018 of the reasons for the visa application being refused. The Tribunal has also taken into account that the applicant was advised at the hearing on 16 September 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.
21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.187.233 and 187.311 of Schedule 2 to the Regulations.
While the Tribunal uses the phrase “adjourn”, the Court is satisfied that the Tribunal’s reasons at [20]-[21] address why the Tribunal chose not to convene a further hearing and why it did not wish to wait any further before deciding the review. The Tribunal states that it had to consider whether to “adjourn the application … to allow the applicants’ additional time in which to provide evidence to support the application for review”. This statement implicitly addresses the request for additional time to provide evidence at a further hearing.
The Court is satisfied that the Tribunal’s reasons for not “adjourning” the review (i.e., to give the applicants a further opportunity at a hearing or further time to provide information) under s 363(1)(b) were entirely reasonable. The Tribunal took into account all of the applicants’ circumstances and determined that it would not allow the applicants any “further time” to provide evidence in support of their application (whether at a further hearing or by way of documentary evidence). In particular, it is noted that the Tribunal made express reference to the fact that the first applicant had been given an opportunity to address the circumstances he found himself in (i.e., without an approved nomination) at the hearing on 16 September 2020. Hence, the applicants had had the opportunity to address the critical issue.
The Tribunal’s decision to determine the application without more evidence did not breach s 363(1)(b). The Tribunal’s decision to proceed as it did was, on the facts of this case, reasonable.
Ground 2(b) is dismissed.
Ground 3
Ground 3 states:
Took into account irrelevant considerations
The applicants have not identified what “irrelevant considerations” were taken into account. The Court has considered the Tribunal’s decision as a whole and is satisfied that the Tribunal did not have regard to any information or considerations which were “irrelevant”.
Ground 3 is dismissed.
Oral Submissions
The Court has addressed most of the first applicant’s oral submissions when addressing ground 2(b) above. The substance of the first applicant’s oral submissions related to the fact that he wanted more time and an opportunity to discuss things further with the Tribunal. As stated above, the applicants had that opportunity on 16 September 2020. They also had the opportunity to provide any relevant information in writing following the invitation to comment issued on 6 October 2020. They did not do so.
The first applicant also submitted that he only became aware that the sponsor would not attend the hearing the day prior to the hearing. He said that this “shocked him”. While unfortunate, the fact that the sponsor chose not to attend “at the last minute” is not a matter which demonstrates jurisdictional error. The first applicant confirmed to the Tribunal that he was willing to proceed.
The first applicant also stated that his sponsor had indicated that he might be willing to nominate the first applicant via another business. The first applicant explained that he wanted to appear before the Tribunal to ask if they would be able to “swap the businesses”. As Ms Ellis for the Minister explained to the first applicant at the hearing, the Tribunal is unable to do what he seems to want it to do. The Regulations are strict. The Tribunal can only consider the first applicant’s application against the particular nomination that accompanied his visa. It is that nomination for that particular position with that particular employer that the Tribunal must consider. It cannot “swap” or “substitute” nominators: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[90] (“Singh”).
Finally, the Court does the note first applicant’s oral submissions about the conduct of his migration agent. If, as the first applicant stated, the agent did not advise him that the hearing in 16 September 2020 concerned his application or the agent did not attend the hearing because of the scheduled time, this is troubling. However, none of these concerns give rise to any suggestion of fraud on the Tribunal as per the decision in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. Rather (noting that the first applicant stated that his agent was “not aware that the hearing was a combined hearing”), it appears that if what the first applicant says occurred did occur then (and the Court makes no determination in this regard) his agent was, at best, negligent and, at worst, incompetent.
The applicant’s oral submissions fail to identify any jurisdictional error.
Otherwise
While not a numbered ground of review, the applicants do make reference to a “failure to consider”. The Court has had regard to the materials in the Court Book and is satisfied that the Tribunal considered all of the information that was before it. Notably, the Tribunal referred to the delegate’s decision and the first applicant’s evidence at the hearing. The Tribunal clearly had regard to the materials before it. However, ultimately it was the failure of the sponsor’s application that was detrimental.
The Court has otherwise reviewed the Tribunal’s decision for error as per the decision in MZAIB. It cannot identify any errors.
The Court also notes that, even if there was an error, it would be futile to remit the matter. The sponsor has not applied for judicial review of the Tribunal’s decision. As a result, there is no nomination. The Tribunal would thus be bound to come to the same conclusion if the matter was remitted: Singh. Despite the first applicant’s oral submissions to the Court that he might be able to obtain a new sponsor or a new nomination, he would still be unable to satisfy the requirements of cl 187.233. As the Tribunal’s decision in relation to the sponsor remains valid, the applicants are destined, unfortunately, to fail.
CONCLUSION
The judicial review application has failed to identify any jurisdictional error. The Court is otherwise satisfied that no error has arisen. In any event, remittal of the matter would be futile.
The application is, accordingly, dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 January 2021
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