Mangat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 294

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mangat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 294

File number(s):

BRG 992 of 2019

Judgment of:

JUDGE EGAN

Date of judgment:

19 February 2021

Catchwords:

MIGRATION – Application for an Employer Nomination (Permanent) (Subclass 186) Visa – no valid sponsor nomination approval – application for visa futile and lacking in utility – need for medical certificates to be specific as to reason or reasons why an applicant might be unable to attend a hearing before the Tribunal – no jurisdictional error established – application dismissed.

Legislation:

Migrations Act 1958 (Cth), ss 359A, 362B(1A)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

Cases cited:

 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Number of paragraphs:

21

Date of last submission/s:

18 February 2021

Date of hearing:

18 February 2021

Place:

Brisbane

Applicants

The Second Applicant appearing in person on behalf of the Applicants

Solicitor for the First Respondent 

Ms Allen of Sparke Helmore

Second Respondent

Submitting appearance save as to costs

ORDERS

BRG 992 of 2019

BETWEEN:

RUPINDER KAUR MANGAT

First Applicant

JAGMEET SINGH SOHAL

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	19 FEBRUARY 2021

IT IS ORDERED THAT:

1.The Originating Application for Review filed on 19 November 2019 be dismissed.

2.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The second applicant is a citizen of India who applied for an Employer Nomination (Permanent) (Subclass 186) Visa on 30 June 2015. The sponsor of the second applicant was a company named Singh Mechanical Pty Ltd. The nominated position for the second applicant was that of a motor mechanic (general). The first applicant is the partner of the second applicant, and the success of her application is dependent upon the success of the second applicant’s application.

2. On 2 June 2017, a delegate of the Minister refused the sponsor’s nomination application. That decision was not the subject of any review application. A letter was sent to the second applicant inviting him to comment on the refusal of the nomination application. No response was received from the second applicant.

3. On 8 August 2017, a delegate of the Minister refused to grant the visa to the second applicant because there was no approved nomination in respect of the position in which it was intended that he be employed. It was decided that the second applicant did not satisfy the criteria as set out in cl. 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 186.223 relevantly provided as follows:

   “186.223 

   (1) The position to which the application relates is the position:

   (a) nominated in an application for approval that:

   (i) identifies the applicant in relation to the position; and

   (ii) is made in relation to a visa in a Temporary Residence Transition stream; and

   (c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2) The Minister has approved the nomination.

   (3) The nomination has not subsequently been withdrawn.

   (3A) Either:

   (a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (4) The position is still available to the applicant.

   (5) The application for the visa is made no more than 6 months after the Minister approved the nomination.”

4. On 21August 2017, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

5. On 7 December 2018, the Tribunal wrote to the applicants pursuant to the provisions of s. 359A of the Migrations Act 1958 (Cth) (‘the Act’) inviting them to comment on or respond to information, namely that the delegate’s decision to refuse the nomination application had not been the subject of any application for review. It was explained that such information was relevant because of the requirement that for the grant of the visa, the position specified in the visa application must be the subject of an approved nomination. On 3 January 2019, the same invitation was again sent to the applicants asking for their response. No response was received to either invitation.

6. On 2 August 2019, the applicants were invited to attend a hearing before the Tribunal on 20 August 2019. On 19 August 2019, the Tribunal was asked to adjourn the hearing because of asserted physical and mental health issues then being suffered by the second applicant. [1] The application for the adjournment was granted.

   [1]           Court Book (CB) pp. 110 - 113.

7. On 19 August 2019, the applicants were invited to attend a hearing before the Tribunal on 10 September 2019. On 9 September 2019, the second applicant emailed the Tribunal asking for an adjournment of the hearing based on asserted physical and mental health issues said to have then been suffered by him. [2] The Tribunal granted the request for the adjournment.

   [2]           CB pp. 114 – 119.

8. On 10 September 2019, the applicants were invited to attend a further postponed hearing on 8 October 2019. On 7 October 2019, the second applicant emailed the Tribunal and asked for an adjournment of the hearing based upon various physical and mental health issues said to have then been suffered by him. [3] On the third occasion of an adjournment having been requested, the Tribunal refused the request. The applicants were informed of the decision to refuse the adjournment application by email sent from the Tribunal to the applicants at 11.28 am on 8 October 2019. [4] The hearing before the Tribunal had been listed to commence at 1.00 pm on 8 October 2019.

   [3]           CB pp. 127 – 132.

   [4]           CB pp. 138 – 141.

9. The applicants did not attend the hearing on 8 October 2019. By reason of the non-appearance of the applicants, the applications for review before the Tribunal were dismissed pursuant to the provisions of s. 362B(1A)(b) of the Act. The Tribunal described a medical certificate sent to the Tribunal as being generic, in that it was general in content and did not state any reason why the second applicant could not appear before the Tribunal. Section 362B(1A)(b) of the Act relevantly provided as follows:

   362B Failure of applicant to appear before Tribunal

   (1A) The Tribunal may:

   (b)  by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

10. After the applicants had been notified of the dismissal decision and provided with a copy of a written statement setting out the decision, and the reasons for the decision, in compliance with the provisions of s. 362C(5) of the Act, the applicants applied for reinstatement of the application within the requisite 14 day period after the giving of notice of the decision.

11. A subsequent medical certificate provided to the Tribunal was similarly generic in character to the earlier medical certificates provided by the second applicant. At [6] of its reasons, the Tribunal dealt with the question of non-specific medical reports being tendered to the Tribunal as follows:

    “[6] The 8 October 2019 the applicant was admitted to hospital as an in-patient, yet this was only after the applicant had been advised by telephone by a Tribunal officer that the request made by him at 9.56am to postpone the Tribunal hearing scheduled for 1.00pm that same day had been refused. Having become an in-patient, the applicant then obtained another medical certificate, this time expressing him to be unfit for either work or school until 11 October 2019. The Tribunal does not accept this medical certificate as affording sufficient reasonable excuse for the applicant's non-attendance before the Tribunal. Again, it is to be noted that the medical certificate does not certify that the applicant was unfit to participate in the Tribunal hearing process, and the veracity of whatever medical condition is now covered by that certificate is a matter that the Tribunal feels inclined to assess against the backdrop of this being the third occasion on which the applicant had attempted to delay the Tribunal hearing process, on medical grounds.”

    Grounds for Review

12. The Grounds of the Originating Application filed on 19 November 2019 were as follows:

    “1. I am the applicant for the 457 visa application.

    2. I came to Australia as the holder of student visa. I completed my studies and applied for the 457 visa application according to my work and studies.

    3. After the completion I started working as a motor mechanic before getting sponsored from the Singh Mechanical Pty Ltd on 457 visa.

    4. The visa was cancelled by the immigration department and then I applied for the AAT for the further review on my case and Tribunal sent me invitation for hearing on 8^th Oct 2019 but I was unable to attend it due to medical reasons as I was admitted in hospital.

    5. I had sent a medical certificate to tribunal but the member didn't accept my medical certificate by asking that it's was not explained well.

    6. Tribunal made a jurisdiction error before coming to the conclusion and the decision was made on the hearsay evidences and was not according to any law and facts.

    7. The Tribunal erred in misconstruing and interpreting clauses of the visa.

    8. The decision of the tribunal is affected by the jurisdiction error and was not determined according to law as the circumstances at the time of application was not considered and this must be overlooked again according to law.

    9. The tribunal erred in dismissing the applicant's review application by relying on hearsay evidences obtained by department of immigration which was not tested and put to the applicant.

    10. The extra time was not provided to the applicant so that a new application could be lodged and No further investigation was done on this matter. Despite of the repeated request the member did not provide any time to provide the documents and never gave a detailed decision of the application.

    11. The appellant's application clearly raises an arguable case.

    12. Substantial justice was not provided and that is the reason I want to apply in Federal Circuit Court of Australia.”

13. The Grounds relate to the Tribunal’s dismissal of the application for review, and its refusal to reinstate the application.

14. First, the Tribunal’s approach to the receipt of the medical reports proffered by the second applicant was not in error. A Tribunal is entitled to ignore the content of a medical certificate tendered to it in aid of an application for an adjournment if such medical certificate does not descend, with particularity, to the question as to whether the applicant would be medically unfit to attend a Tribunal hearing and make appropriate submissions at such hearing on their own behalf. In the case of NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, Lindgren J made the following comments in circumstances where medical certificates had been presented to the Registry in an attempt to have the hearing of a matter before Lindgren J adjourned:

    “[3] The appellants notified the Registry two days ago, on 15 December 2003, that they wished to apply for an adjournment of the hearing today. A friend of theirs, Ms Irina Radionova, attended at the Registry and produced two medical certificates both dated Saturday 13 December 2003 and issued by Aristoff Medical Practice Pty Limited; one certificate in respect of each appellant. The solicitor for the Minister indicated that the Minister would oppose an adjournment. It was explained to Ms Radionova that, in these circumstances, an adjournment could not be granted unless the Minister had the opportunity to be heard on the application.

    [4] Upon the matter being called on this afternoon, Ms Anna Volonski, a friend of the female appellant, was in attendance. She is not a lawyer and has attended Court, in substance, to observe and hear what happened on the application.

    [5] The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

    ‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend Court from 13/12/2003 to 01/01/2004 inclusive.’

    The certificate of the same date in respect of the female appellant states:

    ‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend Court from 13/12/2003 to 13/01/2004 inclusive.’

    [6] The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a Court hearing.

    [7] I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend Court’ – apparently each was able to attend upon the medical practitioner.

    [8] If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a Court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”

15. On the question of any reinstatement of the application for review lacking utility, the Tribunal, at [7] of its reasons, said as follows:

    “[7] On an even more fundamental level there is an element of obvious futility about this application for review. As an unsuccessful applicant for a Subclass 186 visa the applicant does not have a nominated employment position that has been previously approved by the Minister, and there is no application for review of the decision to refuse to approve a nominated position for the applicant that is currently pending before the Tribunal. In these circumstances it becomes absolutely impossible for the applicant to satisfy the requirement of clause 186.223 of Schedule 2 of the Migration Regulations. No amount of further delay on medical grounds can alter that fact, such that futility becomes a material factor in the Tribunal refusing in its discretion to accept the most recent medical certificate dated 8 October 2019.”

16. The Tribunal did not err in the way in which it approached either the question of dismissal of the application for review because of the non-attendance of the applicants at the hearing, or in respect of the refusal of the Tribunal to reinstate the application for review. The second applicant’s application for the visa was futile in the absence of there being an approved nomination in respect of the position the subject of the visa application. The application for the visa had no prospects of success.

17. It cannot be said that no other rational or logical decision maker could not have made the same decision as the TribunalAs was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

18. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]      As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

1. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

2. The application for review is without merit and is dismissed.

3. The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated: 19 February 2021