Mangat v MHA
[2019] FCCA 2227
•16 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANGAT v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2227 |
| Catchwords: MIGRATION – Temporary Business Entry (Class UC) Subclass 457 visa – decision of Administrative Appeals Tribunal – whether applicant was on notice of determinative issue – application of transitional provisions – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359, 476 Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 |
| Applicant: | JASPREET SINGH MANGAT |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 376 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 August 2019 |
| Date of Last Submission: | 12 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 16 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 376 of 2018
| JASPREET SINGH MANGAT |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 12 July 2018, the applicant seeks judicial review of a decision made orally by the Administrative Appeals Tribunal (the “Tribunal”) on 12 June 2018. The Tribunal produced a written version of its decision on 13 August 2018.
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 visa (the “visa”). The Tribunal was not satisfied that the applicant met cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”), which requires that, at the time of the Tribunal’s decision, the applicant is the subject of an approved nomination by a standard business sponsor.
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
In writing this judgment, the Court has referenced the applicant’s application, an affidavit affirmed by the applicant on 12 July 2018, a further affidavit affirmed by the applicant on 17 October 2018, a Court Book (“CB”) numbering 98 pages and a written outline of submissions filed by the Minister on 30 May 2019. Also before the Court is a written outline of submissions filed by the applicant on 8 July 2019 and a further outline of written submissions from the Minister dated 23 July 2019.
Background
The Minister’s submissions at [3]-[9] summarise the chronology relevant to this matter. That summary was not disputed. The Court has cross-checked all references in the submissions with the documents in the Court Book and has reviewed the Court Book in detail. The Court is satisfied that the Minister’s summary is accurate and adopts it as its own. That summary provides, relevantly, as follows.
The applicant, a citizen of India, applied for the visa on 10 March 2016 (CB 5-16). In the application, he nominated the sponsoring employer as the Trustee for Five Starlettes Trust, trading as Kentro (the “Sponsor”), and the nominated occupation as “Café or Restaurant Manager”, Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 141111 (CB 2 and 11).
On 4 April 2016, the Minister’s Department approved the Sponsor’s nomination (CB 68-69).
On 18 April 2016, a delegate refused to grant the applicant the visa (CB 42-44). The delegate was not satisfied that the applicant met cl.457.223(4)(da) of the Regulations because the applicant did not have the skills, qualifications and employment background that the Minister considered necessary to perform the tasks expected in relation to the nominated occupation.
On 9 May 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 45-46).
On 11 April 2018, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing by 26 April 2018 as to whether he (CB 50-54):
a)was the subject of an approved nomination by a standard business sponsor and met cl.457.223(4)(a) of the Regulations, specifically noting that the applicant’s nominated occupation of “Café or Restaurant Manager” had been restricted, and now excluded positions in a limited service restaurant;
b)met cl.457.223(4)(aa) of the Regulations; and
c)met cl.457.223(4)(da) of the Regulations by reference to the applicant’s formal education and relevant work experience.
On 26 April 2018, the applicant’s representative wrote to the Tribunal and provided written submissions. These submissions attached, amongst other supporting documents, the Department’s approval of the Sponsor’s nomination dated 4 April 2016 (CB 55-71).
On 3 May 2018, the Tribunal invited the applicant to a hearing to give evidence and present arguments (CB 72-75).
On 12 June 2018, the applicant appeared before the Tribunal with the assistance of his representative (CB 81-83).
By oral decision, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 87). It published its written reasons on 13 August 2018 (CB 91-93).
The Tribunal’s Decision
The Tribunal’s written decision, dated 13 August 2018, is short. It spans just over one page and is eleven paragraphs long.
Relevantly, paragraphs [2]-[11] of the Tribunal’s decision provide as follows:
2. The applicant was nominated by Trustee for Five Starlettes Trust for the position of a Café or Restaurant Manager (ANZSCO 141111). The Department approved the nomination on 4 April 2016 and the applicant submitted a copy of the Nomination approval letter to the tribunal with his review application.
3. On 11 April 2018, the tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations and information that the applicant meet the cl. 457.223(4)(aa) of the Regulations.
4. With the same letter, the tribunal invited the applicant to provide information in writing to demonstrate that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Café or Restaurant Manager by reference to the applicant’s formal education and relevant work experience.
5. The applicant provided some of the requested information to the tribunal, but not written information that he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.
6. During the course of the hearing, the tribunal raised an additional issue with the applicant. The tribunal explained the requirements of cl.457.224(4)(a) which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
7. The applicant provided to the tribunal a copy of the nomination approval letter which stated that the Department approved the nomination lodged by Five Starlettes Trust on 4 April 2016 and that the approved nomination ceases 12 months after the day of approval. The applicant confirmed in his evidence that he was aware that the nomination ceased on 5 April 2017. He stated that he believed that his prospective employer was unable to lodge new business nomination after that day. He gave evidence that, despite the approval of nomination applications, he did not commence employment with the sponsoring business.
8. In his evidence given at the hearing the applicant stated that, at the time of the tribunal decision, he is not the subject of an approved business nomination that has not ceased. He also stated that there is no pending business nomination for the temporary work visa before the Department.
9. He gave evidence that he had applied for the permanent visa (of shore visa application) under Regional Sponsored Migration Scheme (RSMS) where he nominated occupation of a Customer Service Manager. The decision on this visa application is still pending with the department. When I asked the applicant whether his occupation is Café or Restaurant Manager (as nominated for the purposes of applying for a Subclass 457 visa) or Customer Service Manager (as nominated in the RSMS visa application), he answered ‘both’.
10. At the hearing on 12 June 2018 the tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
11. Based on the evidence before me, including your oral evidence, I am not satisfied that you meet clause 457.223(4)(a), which requires that at the time of my decision you are the subject of an approved nomination by a standard business sponsor. For that reason I am affirming the decision made by the department.
The Court notes that at [6] of the Tribunal’s decision the Tribunal refers to cl.457.224(4)(a) of the Regulations. This is clearly a typographical error. At all other times the Tribunal referred to the correct clause of the Regulations (that being cl.457.223(4)(a)). There is no jurisdictional error in this regard.
Proceedings in this Court
The applicant’s application for judicial review contained seven grounds of review, as follows:
1. The decision made by the ADMINISTRATIVE APPEALS TRIBUNAL was affected by jurisdictional error.
2. Tribunal member did not consider or looked at the documents provided.
3. Tribunal member did not look at the decision of the department and did not talk about it.
4. Tribunal member failed to provide procedural fairness in this case.
5. Visa application was refused on not meeting the skills requirement.
6. However, AAT did not look or talk about visa refusal decision.
7. Employer had the valid nomination and approval when AAT appeal was made.
8. AAT took more than 2 years for processing.
9. Employer’s nomination expired and no new nomination could be lodged as Subclass 457 is closed for new applications.
10. New nomination under Subclass 482 (TSS) cannot be lined to old 457 visa application.
Paragraphs [1]-[7] in the applicant’s affidavit filed 12 July 2018 provide a background summary that need not be repeated here.
Paragraph 8(1) of that affidavit repeats ground 1 of the judicial review application. Paragraph 8(2) contains a further “ground” as follows:
8(2).The MINISTER FOR HOME AFFAIRS and the ADMINISTRATIVE APPEALS TRIBUNAL failed to take into account relevant considerations and taking account of irrelevant considerations
The applicant was afforded an opportunity by a Registrar of this Court (in orders dated 29 August 2018) to file an amended application, any affidavits and a written outline of submissions. The applicant filed a further affidavit sworn 17 October 2018. This contained an attachment entitled “Subject: Unfair decision of DOHA and Tribunal”. To summarise, that affidavit:
a)referred to the delegate having refused the visa on the basis that the applicant did not meet cl.457.223(4)(da) of the Regulations;
b)stated that “Prior to the meeting relevant documentation for justification of the above clause was submitted to AAT”;
c)itemised the qualifications the applicant has attained and noted that these are highly relevant to the nominated occupation and that he had provided transcripts and completion letters for consideration;
d)stated that as per the “AQF standards” the applicant should hold the qualifications that he has for the position of “Café/Restaurant Manager”;
e)explained his experience and employment in relation to the nominated occupation;
f)referred the Court to two decisions of the Tribunal he thought were relevant; and
g)asked the Court to consider that:
i)he has been living in Australia for 11 years and has always followed the “rules and regulations”;
ii)he was under the impression that the original nomination was linked to the visa application and, as the visa application was under review, did not think there would be any requirement for a new nomination for the Tribunal and his agent never informed him about the same;
iii)the refusal of the visa application has caused financial and mental stress; and
iv)he was fully committed to commencing work with the Sponsor; however; the contract was contingent on the visa outcome.
The attachment to this affidavit also relevantly provided:
AAT Decision:
• At the MRD hearing they completely neglected the grounds on which the visa was refused which was not meeting the paragraph 457.223(4)(da).
• All the evidence to support the requirement was sent to the case officer through email prior to the hearing which reflected that I do meet the qualifications required as per the AQF standards and ANZCO skill level 2 and have highly relevant experience (6 years) for the position of Cafe/Restaurant Manager.
Errors:
• The case officer did not discuss about skills and qualification in the hearing.
• On the MRD Hearing Record the DOB of applicant is incorrect. The DOB of applicant is (03/01/1988) but the MRD Hearing Officer has put it (30/01/1988).
• The time for the MRD Hearing has been put incorrectly by the officer.
‣ The hearing opened at 12:30 pm (VIC) time and closed at 1:00 pm (VIC).
‣The officer has put 2:05pm (VIC) for Oral decision and 2:07 pm (VIC) as meeting completion time on the MRD hearing Record.
‣On the outcome of review document sent by AAT the time of oral decision has been put as 1:05 pm (VIC Time).
The meeting went only for the period of 25 mins and not longer than that, but the above time reflects the meeting to be for 2 hours.
These administrative errors reflect the state of mind of case officer during the time of meeting, he missed out on the necessary details that should have been checked prior to the start of the meeting and while conforming the decision record form.
This matter first came on for hearing before this Court on 20 June 2019. On that date the applicant handed up a number of documents. The Court marked these as Exhibit 1. The Minister advised the Court that, in light of those documents (and noting, in particular that they seemed to pertain to transitional provisions of the Regulations), the Minister would be unable to address the matters that seemed to arise from Exhibit 1.
In light of what had transpired, the Court adjourned the hearing and advised the applicant that he would have an opportunity to make written submissions in relation to the documents he had just provided to the Court. The Minister was also given an opportunity to make submissions as needed.
The applicant filed submissions in relation to Exhibit 1 on 8 July 2019. The Minister filed responsive submissions 23 July 2019.
When the matter returned for hearing on 12 August 2019, the Court gave the applicant the opportunity to make oral submissions in support of his grounds of review and raise any other concerns he might have in relation to the Tribunal’s decision.
Noting that the applicant was unrepresented, the Court explained to him what the Court can and cannot do.
Noting that the applicant (in his two affidavits) asked the Court to reconsider his applications, it was explained to the applicant that this Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This Court cannot grant him the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in “jurisdictional error”.
The Court further explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include 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 (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] (“SZRUI”); AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; 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] HCA 18 (“Li”) at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Against this background, the Court invited the applicant to explain what he thought the Tribunal “did wrong”.
The applicant referred to the Tribunal inviting him to provide information on 11 April 2018 that he met cl.457.223(4)(a) of the Regulations. He said, in effect, that a change in the legislation meant that he could not obtain a new nomination. He also referred to transitional legislative provisions that, in his opinion, meant he could not be penalised by the legislative changes. He confirmed that his migration agent had not raised with him the need to have his employer lodge a new nomination application, although he was aware that his previous nomination application had expired at the time of the Tribunal hearing. He also expressed frustration at the length of time it took the Tribunal to process and hear his application.
These matters will be addressed below.
Ground 1 and paragraph 8(1)
1. The decision made by the ADMINISTRATIVE APPEALS TRIBUNAL was affected by jurisdictional error.
Ground one and paragraph 8(1) of the first affidavit are identical and assert that there is jurisdictional error in the Tribunal’s decision. This is not supported by any particulars.
The Court notes the remarks of the Federal Court, more recently in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], that an unrepresented applicant should be given an opportunity to explain their grounds of review.
The Court allowed the applicant to do so and notes that the other grounds of the judicial review application and the affidavits appear to be more specific. For that reason the Court has taken the “jurisdictional error” referred to in this ground and paragraph as no more than a reference to one of the matters the applicant addresses elsewhere in his judicial review application and in his affidavits.
For the reasons to be given below, there is no jurisdictional error in the Tribunal’s decision overall and ground 1 and paragraph 8(1), accordingly, will be dismissed.
Ground 2
2. Tribunal member did not consider or looked at the documents provided.
The applicant has not identified what documents were not considered or looked at. The Court, based on the applicant’s second affidavit, has inferred that the applicant may be referring to the “documentation for the justification” that the applicant met cl.457.223(4)(da) of the Regulations.
The Court notes that the applicant’s agent provided written submissions to the Tribunal on 26 April 2018. Those submissions included references to the applicant’s qualifications and, relevantly, over ten attachments which included the applicant’s resume, a position description for his nominated occupation and the completion certificates of each of the qualifications that the applicant held.
The Court considers the applicant to be referring to these documents.
The Court also notes the applicant’s assertion in his second affidavit that he provided “all the evidence” to support the requirement that he did meet the qualifications required “as per the AQF standards”.
This ground must fail for two reasons.
First, at [5], the Tribunal refers to the applicant providing information. The only information the applicant provided was that referred to above. It cannot be said here that the Tribunal failed to “look at” the documents. The Court is satisfied the Tribunal referenced the documents as it noted (at [5]) that of the information that the applicant provided, he did not provide any information that he was the subject of the approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Regulations. The Tribunal clearly considered the documents provided by the applicant as it was able to identify from those documents what was missing.
Second, the Court accepts that while the Tribunal may not have “engaged intellectually” with these documents, it did not need to. Having noted that there was no information or evidence to suggest the applicant met cl.457.223(4)(a), there was no need for the Tribunal to consider the documents it did have in detail.
As the applicant has failed to identify any documents that he believes were not “looked at”, it cannot be said that ground 2 points to jurisdictional error on the part of the Tribunal. Ground 2 must, accordingly, fail.
Grounds 3, 5 and 6
3.Tribunal member did not look at the decision of the department and did not talk about it.
5. Visa application was refused on not meeting the skills requirement.
…
6. However, AAT did not look or talk about visa refusal decision.
The Court considers the portions of the applicant’s second affidavit under the heading “AAT Decision” (where he asserts that, at the Tribunal hearing, the Tribunal completely neglected the grounds on which the visa was refused by the delegate) to be relevant to this ground of review.
The Tribunal conducts a hearing “de novo”; that is, the Tribunal is to arrive at its own decision on the basis of the materials before it. It is not bound by the delegate’s decision. The Tribunal is to arrive at the correct or preferable decision in the case before it according to the material before it and applying the applicable criterion: Li at [93].
That the Tribunal did not “talk about” the delegate’s decision with the applicant does not amount to jurisdictional error. The applicant seems to suggest that the Tribunal should have confined itself to the grounds upon which the delegate refused the visa. That, however, was not the relevant statutory task. The Tribunal was required to consider “afresh” whether the applicant met each of the criterion before it could be satisfied that he could be granted the visa.
There was no need for the Tribunal to look at or talk about the delegate’s decision with the applicant because the Tribunal found an independent basis on which it must refuse the visa. There is no error in the approach taken.
Ground 3, 5 and 6 disclose no jurisdictional error.
Ground 4
4. Tribunal member failed to provide procedural fairness in this case.
In some respects, grounds 3 and 6 should be read with this ground of review as it might be suggested that the applicant is saying that the Tribunal fell into the kind of error identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”).
The determinative issue in the delegate’s decision was that the applicant did not meet cl.475.223(4)(da) of the Regulations. The applicant provided a large amount of information that he said proved that he did satisfy this criterion. The Tribunal, however, determined that the applicant did not meet cl.457.223(4)(a) of the Regulations. To have been afforded procedural fairness, the applicant must have been placed on notice that this was a determinative issue on the review.
Here, the Court is satisfied that the applicant was on notice and that he was not denied procedural fairness: Specifically:
a)the Tribunal’s letter to the applicant dated 11 April 2018 invited him to provide information that he met the requirements of cl.457.223(4)(a) (CB 50-55);
b)the applicant’s representative acknowledged that the applicant must meet this criterion and responded to this requirement in his submissions and (in error, given the nomination expired on 5 April 2017) stated that the applicant was nominated by the Sponsor;
c)the Tribunal’s hearing invitation to the applicant dated 3 May 2018 stated that the Tribunal had considered the material before it (including the information and submissions of the representative), but was unable to make a favourable decision on the material alone. It specifically referred to the need to provide evidence that the applicant met cl.457.223(4)(a) of the Regulations (CB 72-75); and
d)the Tribunal raised the issue with the applicant at the hearing who confirmed there was no pending business nomination for the visa (CB 92 at [6]).
There is no error of the kind identified in SZBEL.
At the hearing, the applicant made a submission to the effect that the Tribunal hearing lasted only 10 minutes and that the Tribunal appeared to have made up its mind prior to “looking at anything”.
To the extent the applicant is suggesting the Tribunal displayed actual or apprehended bias, the Court does not accept this argument.
The fact that the Tribunal hearing was short does not indicate that the Tribunal had “made its mind up” or did not consider everything it was required to consider. The Tribunal went as far as necessary in determining whether the applicant should be granted the visa. The applicant was asked by the Tribunal if he was the subject of an approved nomination or if there was a pending nomination. He answered no. On the applicant’s own evidence, the need to look at all the documents or engage in a lengthy hearing was unnecessary.
The Court is not satisfied that a reasonable, fair minded lay observer would apprehend that the Tribunal was not impartial: SZRUI at [2]. Were the Tribunal not impartial, then arguably the Tribunal would not have sought the applicant’s evidence at hearing as to whether he was the subject of a nomination or a pending nomination.
There is nothing in the materials before the Court to suggest there was a breach of pt.5 div.5 of the Act or any of the exhaustive procedural fairness obligations imposed by s.357A.
Ground 4 is, accordingly, dismissed.
Grounds 7 - 8
7. Employer had the valid nomination and approval when AAT appeal was made.
8. AAT took more than 2 years for processing.
The applicant lodged his review application with the Tribunal on 9 May 2016. He is thus correct when he says that that he was the subject of an approved nomination at the time he filed his application for review in the Tribunal.
However, cl.457.223 is a “time of decision” criterion. This means that the applicant is required to satisfy, or continue to satisfy, that criterion at the time of the Tribunal’s decision. Here, it was irrelevant to the Tribunal’s determination that the applicant satisfied the criterion at the time he filed his application for review. The statutory criterion required that he do so at the time of the decision. He did not.
Ground 7 identifies no error.
In respect of ground 8, the Court sympathises with the applicant. It was over two years before the Tribunal conducted a hearing. Regrettably, delays of that sort are not uncommon in a Tribunal that is as busy as this one (and despite the best efforts of its hard-working staff and members). However, the fact that a delay of this sort is, in one sense, “unfair” (and in no way attributable to the applicant) does not mean that the Tribunal has fallen into jurisdictional error.
It was the applicant, and his representative, who were responsible for ensuring that at the time of the Tribunal decision he met all of the relevant criterion. The applicant’s evidence to the Tribunal was that he believed that his Sponsor was unable to lodge a new nomination after the day his approved nomination ceased (CB 92 at [7]). His perception in this regard was incorrect. Unfortunately, a misunderstanding on his part or on the part of his agent does not point to any error of the sort that this Court can assist with.
While the delay is regrettable, that delay did not prevent the applicant from taking steps to ensure that he met the criterion relevant to the visa. As the Minister submitted, the applicant had until 17 March 2018 to become the subject of another approved nomination for the purposes of the visa application. That he or his representative misunderstood or overlooked the need to do this does not point to jurisdictional error on the part of the Tribunal.
Ground 8 is, accordingly, dismissed.
Grounds 9-10
9. Employer’s nomination expired and no new nomination could be lodged as Subclass 457 is closed for new applications.
10. New nomination under Subclass 482 (TSS) cannot be lined to old 457 visa application.
The applicant’s Sponsor’s nomination ceased on 5 April 2017. It was plain on the face of the nomination record that this was the case and this was not disputed by the applicant. The applicant thus had almost one year to secure a new sponsor nomination for his visa.
The Court notes that the Tribunal invited the applicant to comment on whether he met cl.457.223(4)(a) on 11 April 2018. Hence, if the applicant was not the subject of a valid nomination at that time he could not have attained one as the Minister’s Department had ceased accepting applications for nomination approvals.
It was irrelevant that the applicant was the subject of a new nomination for a different class of visa. The applicant was required to satisfy the criterion for the grant of this visa. While the relevant legislative change adversely affected the applicant, this does not amount to jurisdictional error. Further, the applicant did have the opportunity (until 17 March 2018) to ensure that he was the subject of a nomination and he did not take steps to avail himself of that option prior to the legislative change. Had he done so, none of this would have been an issue.
Whether the applicant was “mistaken” in assuming that he only required the nomination at the time of the visa application or whether the applicant was “unaware” that he could not attain a nomination after 17 March 2018 does not assist him in relation to the issues before this Court. He was required to meet cl.457.223(4)(a) at the time of his hearing before the Tribunal and, by his own admissions, he did not.
For the reasons outlined above, grounds 9 and 10 must fail.
Paragraph 8(2)
(2).The MINISTER FOR HOME AFFAIRS and the ADMINISTRATIVE APPEALS TRIBUNAL failed to take into account relevant considerations and taking account of irrelevant considerations
The applicant has not identified what relevant considerations and irrelevant considerations he is referring to.
To the extent the Court has already made reference to such matters above it adopts that analysis here in addressing this ground of review.
Further, having reviewed the Tribunal’s decision, it is the Court’s view that the Tribunal clearly took into account all relevant considerations. It identified the correct criterion the applicant was required to meet. It referred to the documents it had requested in respect of those criterion. It noted the absence of evidence in respect of one of those criterion. The Tribunal was required to be satisfied that the applicant met each of the criterion. When it was clear that the applicant had not met one criterion, the Tribunal did not need to consider the other criteria for the grant of the visa as they were no longer relevant.
Nothing in the Tribunal’s decision indicates that it took into account an irrelevant consideration and the applicant has been unable to articulate one to the Court.
There is no jurisdictional error in this regard.
“Errors” referred to in the Second Affidavit
The applicant’s second affidavit noted that his birth date on the cover page of the Tribunal’s decision was incorrect. This is true. However, this is little more than a typographical error. It is immaterial to the outcome of the applicant’s review and does not amount to jurisdictional error.
A second issue is raised in relation to the recording of the times on the Tribunal’s hearing record and on the decision record. The Court accepts that the recording on the hearing record form was incorrect. It should have read “1.07pm”. However, these are minor matters. They are immaterial to the outcome of the review and do not evidence jurisdictional error.
The applicant says these two matters reflect the “state of mind” of the Tribunal who missed out on “necessary details that should have been checked”. The applicant’s comments are somewhat resonant of the remarks made by the High Court in CRI026 v Republic of Nauru (2018) 92 ALJR 529 (“CRI026”) that errors of this type might “suggest a lack of care in final proof reading of reasons”. However, as in CRI026, the reasons here clearly demonstrate that these errors have no effect on the Tribunal’s reasoning overall.
The Court does not take the reference to “state of mind” to be an allegation of bias. To the extent that it is alleged that there was actual or apprehended bias, the Court does not accept that a reasonable fair minded person would suspect, on the basis of these two minor mistakes, that the Tribunal did not bring an independent mind to the applicant’s case or was otherwise inhibited from carrying out its statutory task.
The Court has also considered the two Tribunal decisions the applicant referred to. These decisions are of no assistance as the facts of those matters are plainly distinguishable.
No error arises in the applicant’s second affidavit.
Exhibit 1
As noted, at the first hearing the applicant handed up a bundle of documents (marked as Exhibit 1).
These documents included a printout of what appeared to be a portion of cl.457, a printout of reg.2.75 of the Regulations, part 67 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the “Amending Regulations”) and what appears to be a portion of the Explanatory Memorandum to the Reform Regulations.
The Tribunal’s decision to refuse the visa was based on the applicant’s inability to meet cl.457.223(4)(a) of the Regulations. That clause reads:
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
Regulation 2.75(2) reads:
(2) An approval of a nomination ceases on the earliest of:
(a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b) 12 months after the day on which the nomination is approved; and
(c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and
(d) if the approval of the nomination is given to a standard business sponsor—3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e) if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act—the day on which the person’s approval as a standard business sponsor is cancelled; and
(f)if the approval of the nomination is given to a party to a work agreement (other than a Minister)—the day on which the work agreement ceases.
On 18 March 2018, the Amending Regulations came into effect. From that date, no new nominations could be lodged with the Department. Inserted into the Regulations by the Amending Regulations was sub-cl.6704(15) of pt.67 of sch.13, which provides:
(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day if:
(a) before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and
(b) within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.
The applicant and Minister both referred to the Explanatory Memorandum and its discussion of sub-cl.6704(15). Item 178 of the Explanatory Statement reads:
Clause 6704, entitled Application and transitional provisions in relation to amendments of Part 2A, has the effect that changes to regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018. There are two exceptions:
…
Subclause 6704(15) ensures that a nomination linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa. This is a beneficial change to extend the validity of a nomination, which would otherwise cease 12 months after approval (paragraph 2.75(2)(b) of the Regulations), to avoid situations where the applicant is successful at the AAT but the related nomination has ceased to be in effect, noting that it is not possible to make another Subclass 457 nomination as of 18 March 2018.
(Without alteration)
Consideration
The applicant submitted as follows in relation to the above legislative provisions:
a)the invitation to the Tribunal hearing was received on 11 April 2018 and the hearing date was 12 June 2018. At the date of the invitation, the Amending Regulations were already in effect and the applicant was not able to obtain a new nomination;
b)sub-clause 6704(15) ensures that a nomination linked to a visa application will not cease during the Tribunal’s review of a decision to refuse the visa; and
c)sub-clause 6704(15) extends the validity of a nomination which would otherwise cease 12 months after approval to avoid situations where the applicant is successful at the Tribunal but the related nomination has ceased to be in effect, noting that it is not possible to make another nomination as of 18 March 2018; and
While the Court is sympathetic to the frustrations faced by the applicant, the Court does not agree with his interpretation of the legislation in question.
Rather, the Court accepts the Minister’s position, which can be summarised as follows.
Sub-clause 6704(15) operated from 18 March 2018 and applied if reg.2.75(2)(a) and (b) were met.
That both of those conditions were met in this case is irrelevant as the approved nomination had ceased around 12 months before the commencement of the sub-cl.6704(15).
The applicant argues that sub-cl.6704(15) operates retrospectively and, in effect, resurrects nominations that have already ceased in accordance with reg.2.75(2)(b) of the Regulations.
The Regulations were amended when the amending provision commenced, on 18 March 2018, and the Amending Regulations do not expressly state that they operate retrospectively.
Sub-clause 6704(15) was not intended to assist people in the applicant’s circumstances. The language and intent of sub-cl.6704(15) is plain.
The Explanatory Statement to the Amending Regulations states that sub-cl.6704(15) ensures that a nomination linked to a visa application will not cease during the Tribunal review so successful applicants will not be denied their visa if their nomination has ceased, noting that it is not possible to make another nomination as of 18 March 2018.
The applicant had until 17 March 2018 (some 11 months after his nomination had ceased) to obtain another nomination.
Sub-clause 6704(15) has no relevance to this case. The applicant’s nomination ceased on 5 April 2017 and the Tribunal correctly determined he did not meet cl.457.223(4)(a) of the Regulations.
Sub-cl.6704(15) is directed to benefit applicants before the Tribunal whose nominations would have ceased after 18 March 2018. This is in line with the explanatory statement and the purpose of sub-cl.6704(15) as a beneficial change to “extend the validity of a nomination” to avoid situations where the applicant is successful at the Tribunal but the related nomination has ceased to be in effect and the applicant cannot obtain a new nomination. Here, the applicant could have obtained a new nomination in the eleven months between when his nomination lapsed (on 5 April 2017) and when the Amending Regulations commenced (on 18 March 2018). He did not do so.
The type of situation that sub-cl.6704(15) sought to avoid was one where an individual was unable to obtain a new nomination. The applicant here did have the opportunity to obtain a new nomination. He failed to do so. He confirmed that he knew the nomination ceased on 5 April 2017 but believed his nominating employer was unable to lodge a new nomination after that date (CB 92 at [7]). It is not clear why the applicant believed his employer was unable to lodge a new nomination after that date. In any event, they were able to do so but did not. Had the applicant taken steps to obtain a new nomination (which likely would have seen the expiry of the nomination occur after 18 March 2018) then he would have benefited from sub-cl.6704(15) of the Regulations.
The Tribunal was correct in finding that the applicant did not have an existing nomination at the time of decision. As such, the matters that the applicant suggests arise from Exhibit 1 do not identify any jurisdictional error on the part of the Tribunal.
Conclusion
On one level the Court sympathises with the applicant. He appears to have been poorly served by his migration agent. In this regard, the Court refers the applicant to the Office of the Migration Agents Registration Authority – an agency well suited to deal with complaints of the sort raised here.
Unfortunately, the Court cannot assist him in relation to the review before this Court.
The applicant failed to meet a mandatory criterion and, once the Tribunal had made that determination, the Tribunal correctly found that the visa could not be granted.
The Court has not identified any errors in the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 16 August 2019
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