McDonagh v MICMSMA

Case [2022] FedCFamC2G 226


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

McDonagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 226

File number(s): PEG 144 of 2021
Judgment of: JUDGE KENDALL
Date of judgment: 31 March 2022
Catchwords: MIGRATION – Employer Nominated visa – decision of the Administrative Appeals Tribunal – whether the conduct of the applicant’s migration agent constituted a “fraud on the Tribunal” – whether the Tribunal failed to give sufficient weight to the applicant’s circumstances – what constitutes a response to an invitation to comment – whether the Tribunal erred in allowing the applicant to attend a hearing – no jurisdictional error – futile in any event – no jurisdictional error – application dismissed.
Legislation:

Migration Act 1958 (Cth), ss 359A, 359C, 360 & 476

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

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222

Craig v State of South Australia (1995) 184 CLR 163

Lee v Minister for Immigration and Citizenship [2008] FCA 162

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127

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

Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233; (2011) 194 FCR 11

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Singh v Minister for Immigration & Anor [2019] FCCA 2343

Singh v Minister for Immigration & Border Protection [2017] FCAFC 105

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 93

SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

WZARX v Minister for Immigration & Border Protection [2014] FCA 423

Division: Division 2 General Federal Law
Number of paragraphs: 75
Date of hearing: 30 March 2022
Place: Perth
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Ms M Scott
Counsel for the Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

PEG 144 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AIDAN MCDONAGH

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

31 MARCH 2022

THE COURT ORDERS THAT:

1.The application be 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…

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AGLC
McDonagh v MICMSMA [2022] FedCFamC2G 226
Case
[2022] FedCFamC2G 226
Decision Date

CaseChat Overview and Summary

The case of McDonagh v MICMSMA concerns an application for judicial review of a decision made by the Migration Review Tribunal. The applicant, who is represented by counsel, seeks to challenge the Tribunal’s decision to refuse his visa application on the basis of procedural errors. The application for judicial review was brought under section 476 of the Migration Act 1958, and the applicant must demonstrate that the Tribunal has fallen into jurisdictional error in order to obtain assistance from the Court.

The central legal issue in this case is whether the Tribunal erred in its decision to refuse the applicant’s visa application on the basis of procedural errors. The applicant argues that the Tribunal failed to consider the errors made by his former migration agent, which led to the refusal of his Subclass 186 nomination. The Court must determine whether the Tribunal’s failure to consider these errors amounted to jurisdictional error. In addition, the Court must consider whether the applicant’s concerns about the conduct of his migration agent are relevant to the Tribunal’s decision-making process.

In its judgment, the Court found that the Tribunal did not fall into jurisdictional error in its decision to refuse the applicant’s visa application. The Court noted that the Tribunal had considered the applicant’s concerns about the conduct of his migration agent, but found that these concerns did not impact on the decision made by the Tribunal. The Court also noted that the Tribunal had correctly applied the relevant law in its decision, and that any errors made by the applicant’s migration agent were not sufficient to amount to jurisdictional error on the part of the Tribunal. The Court found that the Tribunal’s decision was lawful and that the applicant was not entitled to succeed in his application for judicial review.

The Court orders that the application for judicial review be dismissed and that the Tribunal’s decision be affirmed. The applicant is to pay the costs of the respondent, which are to be taxed if not agreed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 July 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-6). An affidavit, affirmed by the applicant, was filed in support of that application and annexed a copy of the Tribunal’s decision (CB 7-9). The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.TRIBUNAL’S DECISION The Tribunal’s decision is six pages long and spans 29 paragraphs. The final page of the decision contains an extract of relevant legislative provisions contained in the Regulations. The Tribunal began by identifying the procedural history of the visa application. The Tribunal identified the type of visa under review, the stream that the applicant had applied for and the reason the delegate had refused the visa (at [1]-[5]). The Tribunal then noted that, on 17 May 2021, it had invited the applicant to appear before it at a hearing pursuant to s 360 of the Act (at [7]). Further, on 18 May 2021, it had invited the applicant to comment on or respond to information pursuant to s 359A of the Act (at [8]). The Tribunal continued:9.The information related to information before the Tribunal that suggests there is no approved nomination because the nominator NKR Services Pty Ltd ATF NKR Services Trust withdrew their nomination review application on 11 August 2020, which was accepted by the Tribunal on 18 August 2020 and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.10.The Tribunal explained in its letter of 18 May 2021, that this information is relevant because under r.186.223(2), the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed. The Tribunal detailed the contents of its letter dated 18 May 2021 and stressed that the letter notified the applicant that, if he did not respond to the letter within the requisite period, the applicant would lose his right to attend the scheduled hearing (at [11]). Further, the Tribunal explained that the invitation letter was sent to the applicant’s last known address and comments were required to be provided in writing to the Tribunal by 1 June 2021. The Tribunal noted that it was made clear that, in the absence of a response, it might make a decision on review without obtaining further comment from the applicant and he would lose any entitlement he might have had to attend a hearing (at [12]). The Tribunal confirmed that the applicant had responded to the hearing invitation sent on 17 May 2021 but that that response did not address the issues raised in the invitation to comment letter dated 18 May 2021 (at [13]). The Tribunal then explained:14.The review applicant did not provide the comments within the prescribed period and no extension was sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.15.The Tribunal has considered whether this was an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets the requirements of cl.186 of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

Ratio Decidendi

Legal Principle Established

Against this background, the applicant outlined concerns he had with the conduct of his migration agent. This issue will be addressed below when assessing ground 1.CONSIDERATIONGround 1 Ground 1 provides:1.The Administrative Appeals Tribunal (Tribunal) failed to consider the errors made by his former migration agent that led to the refusal of the Subclass 186 nomination. This was tantamount to fraud by the former migration agent on the Department of Home Affairs. The Applicant is blameless in this matter. In the context of a judicial review application, this Court can only assist an applicant if there is evidence before it that a migration agent conducted a “fraud” on the Tribunal (as described in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35). In order for conduct to constitute a “fraud on the Tribunal”, it must be proved that the fraudulent conduct of the migration agent (or the third party in question) disabled the Tribunal from conducting a review in accordance with its statutory obligations under the Act. That is, the fraud must have directly impacted on the Tribunal’s decision making process or otherwise impacted the outcome of the review. There is no evidence that this is what occurred in this matter. Here, the applicant was not represented by a migration agent before the Tribunal. While the applicant initially included contact details for a migration agent in his review application filed with the Tribunal (CB 68), the applicant later provided a “Change of Contact Details” form to the Tribunal (CB 90-91) in which he withdrew his previous authorisation for that agent to receive correspondence on his behalf and sought that all correspondence be sent directly to him (CB 91). In the circumstances, any conduct by the applicant’s migration agent could then only have impacted upon the decision made by the delegate. The Court notes that it does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision which may or may not have been brought about by the conduct of the applicant’s migration agent would be “cured” by the Tribunal decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38]. The Tribunal, in its reasons (at [25]), does reference evidence from the applicant about an issue with “paperwork” as follows (emphasis added):Mr McDonagh told the Tribunal that the original paperwork had not been done properly and that he had left his former employment due to health and safety reasons. The Tribunal acknowledged the applicant’s situation and has empathy for his circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant during the hearing, the Tribunal has no discretion in this matter and must apply the relevant law. To the extent that this statement relates to the conduct of the applicant’s former migration agent, it does not impact on the decision made by the Tribunal and did not prevent the Tribunal from conducting a proper review. At best, it suggests incompetence on the part of the applicant’s former migration agent. Negligence, incompetence or bad advice (while unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.