Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 708
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 708
File number(s): MLG 1052 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 26 August 2022 Catchwords: MIGRATION – Temporary Work (Skilled) (subclass 457) visa – application for judicial review – decision of the Administrative Appeals Tribunal –– whether jurisdictional error – whether the Tribunal failed to take into account relevant evidence – no jurisdictional error – application dismissed Legislation: Migration Regulations 1994 (Cth) sch 2
Migration Act 1958 (Cth) ss 65, 476
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Cases cited: Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 565
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZLEX v Minister for Immigration & Anor[2007] FMCA 209
WZATH v Minister for Immigration and Anor [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 6 July 2022 Date of hearing: 20 June 2022 Place: Hobart For the First Applicant: In person For the Second Applicant No appearance Solicitor for the First Respondent: Mr Orchard of Sparke Helmore ORDERS
MLG 1052 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHANUSHKA CHATURANGA MARASINGHA MUDIYANSELAGE
First Applicant
SANHANI SANTHOSHI WIJETHUNGA WIJETHUNGA MUDIYANSELAGE
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed 22 May 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment concerns an application for review filed on 22 May 2017 seeking judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 28 April 2017 (“the Tribunal decision”), which affirmed the First Respondent’s delegate’s decision of 18 June 2015 to refuse visas to the First Applicant and the Second Applicant. The application enlivens this Court’s jurisdiction pursuant to section 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The First Applicant is a non-citizen who lodged an application for a temporary skilled work visa on 4 December 2014 pursuant to subclass 457 of Schedule 2 of the Migration Regulations 1994 (Cth)(“the Regulations”). The Second Applicant is his wife, and was included as a secondary applicant on the application.
The application was refused by a delegate of the First Respondent on 18 June 2015 on the basis that the requirement of clause 457.223(4)(a) of the Regulations was not satisfied. That requirement is that there be an approved employer sponsor nomination concerning the occupation to be undertaken by the First Applicant (“approved employer occupation nomination”). The First Applicant’s nominated employer sponsor, Cleaning Fellow Aus Pty Ltd “(“the employer sponsor”), had its application for approval refused on 1 May 2015 (“first nomination application”).[1]
[1] Court Book at pages 172 to 175.
On 19 June 2015, the day after the Applicants’ Visa application was refused, the employer sponsor lodged a second occupation nomination application regarding the First Applicant (“second nomination application”).
On 6 July 2015, the Applicants lodged an application with the Administrative Appeals Tribunal for review of the delegate’s decision of 18 June 2015 to refuse their visa applications. On 28 April 2017, the Tribunal decided to affirm the delegate’s decision, after it had conducted a hearing on 21 April 2017 at which the First Applicant had appeared in person.
The Applicants subsequently lodged two Applications for Review to this Court regarding the visa refusal decision made on 18 June 2015. The first was filed with the Court on 23 July 2015,[2] and the second was filed on 22 May 2017.[3]
[2] File MLG1704/2015.
[3] File MLG1052/2017.
I conducted a hearing on 20 June 2022 in respect of both applications for review to this Court. The First Applicant was self-represented and the First Respondent was legally represented.
On 15 July 2022, I published judgment in the first application for review and made an order dismissing it for want of jurisdiction.[4] This judgment concerns the Application for Review filed 22 May 2017 in proceedings MLG105/2017, and concerns the decision of the Tribunal affirming the decision by the First Respondent’s delegate to refuse the visas.
[4] Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 565
JURISDICTIONAL ERROR – RELEVANT PRINCIPLES
For the First Applicant to succeed, he needs to persuade the Court that the Tribunal made a jurisdictional error of some recognised kind as usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
BASIS OF THE TRIBUNAL DECISION
The Tribunal’s written reasons for decision at [11] to [20] reveal that it affirmed the delegate’s decision of 18 June 2015 to refuse the visas on the same basis as the delegate had refused the visas. Namely, that the prescribed requirement in Schedule 2 of the Regulations of having an approved occupation nomination from an employer sponsor was not satisfied at the time of the Tribunal decision.
GROUNDS FOR REVIEW
The Applicant relied upon the application filed on 22 May 2017. It contains a single ground of review in the following terms which is then particularised by multiple subparagraphs:
That the Administrative Appeals Tribunal fell into jurisdictional error when it did not take into account relevant evidence in determining the application for review.
By reference to the particulars at subparagraphs (b), (c), (d), (e), (f), (g), (h), and (i), it can be understood that the relevant evidence purportedly not taken into account relates to:
(a)Evidence that the occupation nomination application by the employer had not been withdrawn on 1 May 2015 or when the delegate took his decision as stated by the Tribunal member; and
(b)Evidence claimed to exist at the time of the Tribunal hearing, that there was a pending application for approval of an occupation nomination.
The particulars at subparagraph (a) of the single ground of review appear to raise an assertion that the Tribunal improperly refused an adjournment of the hearing. This was also the subject of oral submissions before me at the hearing in the Court.
In addition, the particulars at subparagraph (e) of the single ground of review contend that there was a failure to consider that the second occupation nomination application had only been refused on 24 August 2015, after the delegate took his decision.
The particulars at subparagraph (j) and (l) of the single ground of review assert in abstract that the Tribunal failed to ask itself the correct questions or by some other way that may be later submitted.
MATERIALS IN EVIDENCE
The Court received in evidence unopposed, the Court Book filed by the First Respondent on 31 July 2020. This was marked as Exhibit R-1.
The Applicant relied upon his affidavit filed 22 May 2017, which annexes the Tribunal decision record of 28 April 2017. This was received in evidence and marked as Exhibit A-1.
The Respondent had filed and served an affidavit of Jeremy Liam Hutton filed of 6 June 2022, a lawyer employed by the solicitors representing the First Respondent. It was received in evidence and taken as read, and the Court marked it as Exhibit R-3.
Mr Hutton’s affidavit annexes a letter from the Department of Immigration and Border Protection confirming receipt of the second occupation nomination application dated 19 June 2015 and also a letter of 24 August 2015 notifying that the nomination had been refused.
APPLICANT’S POSITION – REVIEW HEARING
The Applicants had not filed any documents other than the application and affidavit referred to above, notwithstanding the orders made on 13 December 2021 requiring them to file any Amended Application with proper particulars of the grounds of application and written submissions relied upon within 28 days of those Orders.
In oral submissions, the First Applicant stated that half way through the hearing before the Tribunal, he had been informed by the member that:
·there was no approved employer sponsor occupation nomination, a prerequisite to the grant of the visas; and
·that his employer sponsor had withdrawn its nomination application on 1 May 2015.
He stated he had told the Tribunal that he did not believe that to be the case and did not have access to the relevant paperwork, adding his new agent and representative had not received or considered the papers sent to them.
Before the Court, the First Applicant submitted that he had wanted representation at the hearing in the Tribunal, but his agent had not received the relevant papers. He stated there was confusion because he understood that an occupation nomination application had been refused and he thought that the hearing by the Tribunal was about the decision refusing the nomination application. He commented that there had been previous approvals of nomination occupation applications for him by the same employer.
The First Applicant sought to rely on a 7 to 8 minute extract of the audio recording of the hearing in the Tribunal, about the statements by the Tribunal member referred to at [21] of these reasons. After hearing submissions, I granted leave to the First Applicant to file and rely upon that audio recording. As this was evidence of which there had not been prior notice given, I directed that the First Respondent may file and rely a written submissions in response. Subject to considering the audio and written submissions, I reserved my judgment.
On 29 June 2022, the First Applicant provided the audio recording and it has been marked as Exhibit A-2. I have listened to the portion of audio relied upon.
FIRST RESPONDENT’S POSITION – REVIEW HEARING
At the hearing before the court, the First Respondent relied on written submissions dated 6 June 2022 filed pursuant to earlier procedural orders that had been made. They have been considered together with oral submissions at the hearing.
On 6 July 2022, the First Respondent filed and served written submissions in response to the audio recording submitted by the First Applicant. While conceding that the Tribunal member used the expression “withdrawn” when referring to the refusal of a nomination application at the Tribunal hearing, the First Respondent says it is immaterial and does not constitute jurisdictional error, nor does the refusal of the adjournment.
EVALUATION
In order to be eligible for the visas sought, the First Applicant needed to satisfy the requirements of s 65 of the Act, including the criteria set out in clause 457 of Schedule 2 of the Regulations as it was at the time.[5]
[5] By virtue of s 65(1)(a)(ii) of the Act.
Clause 457.223(4)(a) of Schedule 2 of the Regulations required that the First Applicant’s employment be subject to an approved employer occupation nomination at the time the Tribunal made its decision on 28 April 2017.
Was relevant evidence not considered and reasoning?[6]
[6] Sub-paragraphs, (b), (c), (d), (e), (f), (g), (h), (i) and (k) of ground of review
The Tribunal correctly identified the issue of whether the criteria in clause 457.223(4)(a) was satisfied,[7] and directly raised this with the First Applicant at the hearing, including that there was no evidence of an approved occupation nomination.[8]
[7] Tribunal’s reasons for decision at [10] and [11].
[8] Tribunal’s reasons for decision at [12] to [14].
Having listened to the audio recording submitted by the First Applicant, I agree that the member refers to the “withdrawal of the nomination” by the employer sponsor. However, that does not detract from the fact that the only finding open on the evidence was that there was no approved occupation nomination either at the time of the Tribunal decision or the delegate’s earlier decision on 18 June 2015, as both the first and second nomination applications had been refused.
The use of the term “withdrawn” by the Tribunal member in connection with the date of 1 May 2015 and the sponsor’s occupation nomination likely did cause some confusion. Particularly so, as there had been a second nomination application made which, based on the written reasons of the Tribunal, was not referred to at all.
The evidence before the Court does identify relevant evidence that was not considered, namely the second nomination application and the decision to refuse it. This evidence is contained in Mr Hutton’s affidavit, but appears not to have been placed before the Tribunal.
A failure to consider relevant evidence will only constitute jurisdictional error giving rise to relief if it is material.[9] In this case, the failure is not material because the Tribunal correctly found, despite incomplete evidence, that there was no approved occupation nomination and the First Applicant has not provided any evidence that there was one.
[9] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Having considered all the evidence in the Court Book, Mr Hutton’s affidavit and the oral evidence the First Applicant gave at the hearing, it is clear that there is no evidence of a pending application for approval of an occupation nomination at the time the Tribunal took its decision. The second occupation nomination application was pending approval for a time but it had been determined and refused by the time of the Tribunal hearing, being what was relevant to the decision being taken.
To the extent the ground of review relies on a pending application for occupation nomination approval, it has not substance because both applications by the employer sponsor had been refused. There is no jurisdictional error on this basis.
Refusal to adjourn and futility[10]
[10] Subparagraph (a) of ground of review
The First Applicant seems to argue that the adjournment was needed to enable him to secure representation or to furnish evidence that there was an approved occupation nomination from his employer sponsor.
The Tribunal’s decision to refuse to the adjournment involved an exercise of discretion. The written reasons for decision make it clear that the member gave the request thorough consideration and, for logical reasons, then declined the adjournment.[11]
[11] Tribunal’s reasons for decision at [21] to [33].
The reasons for decision demonstrate that the member entertained the claim by the First Applicant that his representative had not advised him that the employer’s occupation nomination had been refused. She considered the prospect of negligence, but concluded that the first Applicant had notice that his visa application had been refused because there was no approved occupation nomination from the employer sponsor.[12]
[12] Tribunal’s reasons for decision at [23] to [25].
Before me, the First Applicant claimed that he thought the hearing before the Tribunal had been in respect of the refusal of the occupation nomination application by the employer sponsor and he was not prepared for the hearing that occurred. This seems unlikely because there is no evidence that an application was ever made about the refusal of the first or second occupation nomination approval. Further, the Applicants had applied on 6 July 2015 to the Tribunal to review the visa refusal decision,[13] so there did not appear to be a reasonable basis for the belief that the Tribunal would be dealing with an application about refusal to approve the occupation nomination by the employer sponsor.
[13] Court Book at pages 196 and 197.
In any case, the Tribunal was correct to conclude that adjournment would have been for no purpose and without utility as the mandatory requirement in clause 457.223(4)(a) was not satisfied and the First Applicant conceded this.[14] Even now, the First Applicant has not provided any evidence of an approved occupation nomination.
[14] See Tribunal’s reasons for decision at [12] and [14].
In addition, adjournment would have also been futile for the reasons submitted by the First Respondent in its submissions. That is, due to a legislative amendment, subclass 457 visas have been removed for the class of skilled visas that are capable of being granted.[15]
[15] Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary
Particular (j) and (l) of grounds of review
The particulars at subparagraph (j) and (l) of the ground of review, being that the Tribunal failed to ask itself the correct questions and additional grounds that may be submitted in due course, are meaningless. They are abstract terms, are not capable of being understood and are insufficiently particularised. The Applicants were given opportunity to file and serve an Amended Application with proper grounds, but did not do so. There is no substance in these purported ground and no jurisdictional error is demonstrated by them.[16]
[16] WZATH v Minister for Immigration and Anor [2014] FCCA 612 at [60], applying SZLEX v Minister for Immigration & Anor[2007] FMCA 209.
No jurisdictional error has been demonstrated by the Applicants. The Application for Review is dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 26 August 2022
Reforms) Regulations 2018 (Cth).
0
5
0