McDonagh v MICMSMA
[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 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 KENDALL:
BACKGROUND
The applicant in this matter is a citizen of Ireland (Court Book (“CB”) 11). He first arrived in Australia in February 2013 as the holder of a Working Holiday (Class TZ) (Subclass 417) visa (CB 120). He has since held a Temporary Work (Skilled) (Class UC) (Subclass 457) visa and various bridging visas (CB 121).
On 7 December 2017, the applicant applied for an Employer Nominated Scheme (Permanent) (Class EN) (Subclass 186) visa (the “visa”) (CB 10-40). The applicant identified his nominated occupation as a “Welder (First Class)” (CB 14) and stated that he was sponsored for the nominated position by NKR Services Pty Ltd ATF NKR Services Trust (the “sponsor”) (CB 16).
On 17 March 2018, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application (CB 47-52).
Later that day (17 March 2018), the Department of Home Affairs (the “Department”) invited the applicant to comment on the following information (CB 53-57):
Nomination refused
The nomination submitted to the department by NKR Services Pty Ltd atf NKR Services Trust listing you as their Nominee has been refused. This means that your visa application cannot be approved.
The applicant did not respond to that invitation to comment.
On 19 April 2018, a delegate of the Minister refused to grant the applicant the visa (CB 63-65). The delegate was not satisfied that the first applicant met cl 186.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the applicant was not the subject of an approved nomination.
On 10 May 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 67-68). The applicant included details of a registered migration agent in that application (CB 68).
On 14 May 2021, the applicant provided a “Change of Contact Details” form withdrawing his “previous authorisation of a person to receive correspondence on [his] behalf” and asked that all correspondence be sent to the applicant directly (CB 90-91).
On 17 May 2021, the applicant was invited to appear at a hearing before the Tribunal (by telephone) on 15 June 2021 (CB 92-104).
On 18 May 2021, the applicant was invited to comment on the following information
(CB 105-107):
•There is information before the Tribunal that suggests there is no 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. 2020.
The above information is relevant because cl.186.223 (2) requires that the nomination made in relation to you by your nominating employer has been approved.
The nomination relied on to satisfy cl 186.223 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination.
If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed. You must have a related nomination to be able to be granted the visa.
On 24 May 2021, the applicant sent the Tribunal a completed “Response to hearing invitation” form (via email) (CB 108-114).
The applicant did not provide any response to the invitation to comment.
On 15 June 2021, the applicant attended a hearing before the Tribunal (by telephone)
(CB 115-118).
On 25 June 2021, the Tribunal affirmed the decision not to grant the applicant the visa
(CB 124-129). As discussed below, the Tribunal concluded that, as the applicant was not the subject of an approved nomination, he did not meet an essential criterion for the grant of the visa.
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.
The Tribunal noted the applicant’s acceptance of the hearing invitation (at [16]) and explained that, whilst the applicant was not entitled to attend a hearing, the Tribunal would afford him the opportunity to do so in any event (at [17]).
The Tribunal confirmed that the applicant appeared before it at a hearing via telephone on 15 June 2021 without representation (at [18]). The Tribunal also explained that it had exercised its discretion to hold the hearing via telephone due to the COVID-19 pandemic but was satisfied that the applicant was “given a fair opportunity to give evidence and present arguments” (at [19]).
The Tribunal then stated:
22.Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
23.In addition, this criterion also requires that:
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal continued:
24.At the hearing of 15 June 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.186.223, the applicant must be subject of an approved nomination.
25.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.
The Tribunal considered the evidence before it and determined that the nomination application relevant to the applicant was not approved and, as such, the applicant did not meet cl 186.223(2) in Schedule 2 of the Regulations (at [26]) – an essential criterion for the grant of the visa (at [27]).
As a requirement for the grant of the visa had not been met, the Tribunal affirmed the decision not to grant the applicant the visa (at [28]-[29]).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant in this Court on 13 July 2021 contains two grounds of review which provide (without alteration):
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.
2.The Administrative Appeals Tribunal had unreasonably failed to give sufficient weight to key factors, namely the Applicant being self-represented before the Tribunal and his lack of understanding of Australian immigration procedures.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 13 July 2021, a Court Book numbering 131 pages (marked as Exhibit 1) and written submissions filed by the Minister on 16 March 2021.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant outlined concerns he had with the conduct of his migration agent. This issue will be addressed below when assessing ground 1.
CONSIDERATION
Ground 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.
The applicant suggests that his migration agent failed to do what was asked of him. While drawing no conclusions in this regard, the Court does highlight (for the applicant’s attention) the powers of the Office of the Migration Agents Registration Authority. That Authority, unlike this Court, is statutorily empowered to investigate and address allegations of negligence, incompetence or bad advice on the part of migration agents.
No jurisdictional error arises in relation to ground 1.
Ground 2
Ground 2 provides:
2.The Administrative Appeals Tribunal had unreasonably failed to give sufficient weight to key factors, namely the Applicant being self-represented before the Tribunal and his lack of understanding of Australian immigration procedures.
To the extent that the applicant suggests weight should have been given by the Tribunal to the fact that applicant was self-represented, the Tribunal’s task in relation to the issues before it was not to weigh the applicant’s “factors or circumstances”. The sole question for the Tribunal in this matter was whether the applicant was the subject of an approved nomination. The fact that the applicant was or was not represented in relation to the proceeding was simply not relevant to the sole question before the Tribunal.
Further, there is no right of legal representation in a proceeding before the Tribunal: see s 366A of the Act; WZARX v Minister for Immigration & Border Protection [2014] FCA 423 at [14] per McKerracher J.
The Tribunal conducted its review fairly and correctly and ensured that it complied with its procedural fairness obligations.
Any issue of procedural fairness will be addressed further below.
No error arises in relation to ground 2.
Otherwise
What constitutes a response to an invitation to comment
As outlined above, the applicant in this matter was sent two separate letters in two consecutive days which related to two separate issues.
On 17 May 2021, the applicant was invited to appear at a hearing (by telephone) scheduled on 15 June 2021 (CB 92-104).
On 18 May 2021, the applicant was sent asked to comment on the following information (CB 105-107):
•There is information before the Tribunal that suggests there is no 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. 2020.
The above information is relevant because cl.186.223 (2) requires that the nomination made in relation to you by your nominating employer has been approved.
The nomination relied on to satisfy cl 186.223 must be the one that was made at the time of the visa application – it is not possible to rely on another nomination.
If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed. You must have a related nomination to be able to be granted the visa.
It is noted that on 24 May 2021, the applicant did complete and send to the Tribunal a completed “Response to hearing invitation” form (CB 108-114).
The applicant did not otherwise provide any “response” to the invitation to comment letter.
The question arises as to whether the “Response to hearing invitation” also constituted a “response” to the invitation to comment letter – such that the applicant retained his entitlement to attend a hearing.
This Court considered this issue in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 93 (“Singh 2021”) (citing its previous decision in Singh v Minister for Immigration & Anor [2019] FCCA 2343).
As noted in those judgments, whether a “Response to Hearing Invitation” provided to the Tribunal constitutes “information” given in response to a s 359A invitation is a jurisdictional fact: Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233; (2011) 194 FCR 11 at [19].
As explained by this Court in Singh 2021:
62. In Saba, at [30]-[31] Jagot J stated:
30Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: "comment on or respond to" the information in the case of s 359A(1)(c), and "the comments or the response" in the case of s 359C(2)(b). This indicates that an applicant may either "comment on" or "respond to" the information in the invitation, or both comment on and respond to the information. The choice - to comment, respond or both - is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines "to comment" as "to make comments or remarks [upon]"; by contrast, "to respond" is simply "to answer in speech or writing; to reply". An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
31It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
(Emphasis added)
63.In Sajjan v Minister for Immigration & Border Protection [2016] FCCA 3093, the applicant, like here, was required to provide information that "demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased". The applicant provided information regarding a nomination which had expired and informed the Tribunal that he was seeking an extension of the validity of the expired nomination from the Department. It was held by the Court that this did not amount to the "giving of the requested information".
64.Here, the “Response to Hearing Invitation” is no more than a “template” questionnaire that allows applicants to outline any hearing requirements they might have, provide hearing contact details and specify any interpretation needs. Applicants can also detail whether witnesses will be called and outline what documents will be relied upon at the hearing.
65.The Court has reviewed the contents of the response provided here
(CB 91-97). The information provided is best described as “skeletal”. It cannot, in anyway, be seen as a “reply or answer directed to the information requested by the Tribunal in the s 359 Invitation to Comment or Respond”.
The applicant here completed the “Response to Hearing Invitation” form. As was the case in Singh 2021, that document (which was simply in template form) allowed the applicant to notify the Tribunal of any requirements the applicant might have had in relation to the hearing.
As in Singh 2021, the completed “Response to Hearing Invitation” form cannot be seen as a “reply” or “answer” which was “directed to the information requested by the Tribunal” in the invitation to comment letter.
The applicant thus lost any “right to appear” before the Tribunal: ss 359C(2), 360(2)(c) and 360(3) of the Act.
Did the Tribunal err in allowing the applicant to attend a hearing
In written submissions filed in this Court on 16 March 2022 (at [28]-[32]), the Minister makes submissions in relation to whether the Tribunal exceeded its power by allowing the applicant to attend a hearing, following his failure to respond to the invitation to comment letter.
The Minister’s submissions in that regard provide as follows:
28.The Minister has identified that the Tribunal has exceeded its powers (and jurisdiction). The Tribunal should not have allowed the applicant to attend as he had failed to respond to the s 359A invitation: see Act ss 359C, 360(2) and 363A; Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; (2017) 251 FCR 110 at [40], [53], [55]-[57].
29.However, the Minister submits that this error is of no consequence. Put a different way, holding a hearing in this matter could have had no impact on the outcome of the review and the Tribunal did not deny the applicant procedural fairness in doing so.
30.Critically, the Tribunal afforded the applicant an opportunity to give evidence and make submissions at a hearing in circumstances where he was not entitled to do so. That is, the Tribunal’s actions gave the applicant more opportunity than he should ever have had. There was no practical unfairness to the applicant in the Tribunal exceeding its statutory powers in this respect.
31.Further, the Tribunal was bound to affirm the delegate’s decision in circumstances where there was no approved nomination. It was not the case that the applicant could find a new employer and ‘substitute’ them for the sponsor: Singh at [88]-[90]. The approved nomination had to be from the sponsor. In circumstances where the sponsor had withdrawn their application to the Tribunal, the applicant’s fate was, unfortunately, sealed.
32.The Minister refers the Court to the matter of Lee v Minister for Immigration and Citizenship [2008] FCA 162. There, Kenny J found in equivalent circumstances that the Federal Magistrates Court was correct to refuse relief, despite the Tribunal exceeding its jurisdiction when it held a hearing, because the applicant had suffered no injustice.
The Court agrees.
In Lee v Minister for Immigration and Citizenship [2008] FCA 162 (“Lee”), the Federal Court stated as follows:
20Even if (as the learned Federal Magistrate held) the Tribunal exceeded its jurisdiction when it held a hearing (see M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 at 345-346), it had plainly not denied the applicant procedural fairness as he alleged or occasioned him any relevant prejudice.
…
22In the circumstances of the case, the Federal Magistrate was entitled to find that the Tribunal’s discretion to refuse an extension of time to respond to the s 395A notice had not miscarried and that the Tribunal had no obligation to inform the applicant that his case was hopeless. Accordingly, the Federal Magistrate was correct in finding that, although the Tribunal exceeded its jurisdiction, the Tribunal had not denied the applicant procedural fairness in doing so.
That reasoning applies here. By allowing the applicant to appear at a hearing before it, the Tribunal did, indeed, exceed its jurisdiction. However, as was the case in Lee, the applicant was not denied procedural fairness by the Tribunal doing so. On the contrary, as submitted by the Minister, the applicant was given more of an opportunity than he otherwise should have had and, as such, there was “no practical unfairness to the applicant” by the Tribunal exceeding its power and jurisdiction in this regard.
No jurisdictional error has been identified here.
Futility
For completeness, the Court also notes that, even if there were any jurisdictional error on the part of the Tribunal in this matter, it would be futile for the Court to order any remittal in this instance: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh 2017”); Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 (“Begum”) at [20].
The application in this matter (and indeed in all matters of this sort) is a “once off” process which, in effect, “ties” to the sponsor’s nomination application: Singh 2017 and Begum at [22]. The nomination application in this matter has failed and no further litigation in that regard is pending. This means that the applicant will, on any view, fail if the matter is remitted to the Tribunal as no nomination exists or is forthcoming.
In the circumstances, the Tribunal would, again, have no choice but to find that the applicant does not meet cl 186.233 in Schedule 2 of the Regulations as he is not the subject of a valid nomination.
CONCLUSION
The application for judicial review filed by the applicant on 13 July 2021 has failed to identify any jurisdictional error. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 March 2022
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