Monika v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 798
Federal Circuit and Family Court of Australia
(DIVISION 2)
Monika v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 798
File number(s): MLG251 of 2018 Judgment of: JUDGE EGAN Date of judgment: 4 October 2022 Catchwords: MIGRATION – Whether Tribunal misconceived its statutory task – whether failure to grant an adjournment constituted jurisdictional error – whether application for visa futile where no approved nomination application – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 116, 116(1)(b), 116(3), 140GB, 359, 359C(1), 360(3), 363A, 364(1)(b).
Migration Regulations 1994: Condition 8107(3)(b) of Schedule 8, Cl 457.223 of Schedule 2.
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [42]
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 24 August 2022 Date of hearing: 24 August 2022 Place: Brisbane Counsel for the Applicants: Mr A Krohn Solicitor for the Applicants: AUM Lawyers Counsel for the First Respondent: Mr C Oldham Solicitor for the First Respondent: Clayton Utz Second Respondent: No appearance save as to costs ORDERS
MLG251 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MONIKA MONIKA
First Applicant
AMAN AMAN
Second Applicant
NEHUM JOLLY
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
4 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Further Amended Application for Review filed on 14 October 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,853.00.
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 Egan
Introduction
The first applicant was the visa applicant. The first applicant’s husband was the second applicant, and the third applicant was a child of their marriage. The ongoing holding of visas by the second applicant and the third applicant was contingent upon the non-cancellation of any visa issued to the first applicant.
On 6 March 2015, a nomination application lodged on behalf of Robin Painting Services Pty Ltd, in its capacity as an approved standard business sponsor, was approved by the Department. The occupation the subject of the approval was for a “Painting Trades Worker” (ANSCO) Code 332211.
Based upon the approval of the said nomination application, the first applicant was granted a Temporary Business Entry (Class UC) (Subclass 457) Visa on 19 June 2015, her standard business sponsor being Robin Painting Services Pty Ltd. That visa was valid to 19 June 2019, and was subject to compliance with Condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations), which relevantly provided that if the visa holder was to cease working for the sponsor, such period of unemployment must not exceed 90 consecutive days.
A Notice of Intention to Consider Cancellation of the visa was issued to the first applicant on 23 May 2016 on the basis that the department had received information that the first applicant had ceased employment with the sponsor on 30 January 2016, and that therefore the applicant had not been employed by her sponsor for a period greater than 90 consecutive days.
Despite representations having been made by the first applicant’s lawyers to the effect that the first applicant had unsuccessfully attempted to find work over an extended period of time, and that another sponsor referred to as the “Makris Group Pty Ltd” had offered her work as a painter, the Department was not satisfied that the first applicant’s visa should not be cancelled. A notice of cancellation of visa dated 21 October 2016 was sent by email to the first applicant on that date.[1]
[1] Exhibit 1 – Court Book (CB) pp. 62 – 76.
The first applicant sought review of that cancellation decision by the Administrative Appeals Tribunal (the Tribunal). It was not in dispute at the time of the hearing before the Tribunal that Condition 8107(3)(b) had not been complied with.
The first applicant lodged an application for review of the visa cancellation decision with the Tribunal on 24 October 2016. The Tribunal also dealt with a separate application for review relating to the refusal of the business nomination application, lodged on behalf of Makris Group Pty Ltd, in respect of the position “Painting Trades Worker”.
In its consideration of the first applicant’s review application, and specifically in relation to whether the first applicant had failed to comply with Condition 8107(3)(b) of Schedule 8, the Tribunal at [54] – [61] said as follows:
“[54]In relation to subclause 8107(3), the last substantive visa the applicant held was a Subclass 457 visa granted on the basis that she met the requirements of subclause 457.223(4).
[55]Accordingly, given its finding that subclause 8107(3A) does not apply to the applicant, in order for the applicant to comply with subclause 8107(3) the Tribunal must be satisfied that:
•The applicant only worked in the occupation listed in the most recently approved nomination for her, which in this case, was as an 'Painting Trades Worker' with Robin Painting Services Ply Ltd: paragraph 8107(3)(a); and
•If the applicant ceased this employment, the period during which she ceased employment did not exceed 90 consecutive days: paragraph 8107(3)(b).
[56]As noted previously, the applicant has not raised any issues with the factual matters the Tribunal set out in its section 359A invitation (dated 14 February 201734). Rather, in her statutory declaration (dated 28 February 201735) the applicant confirmed acknowledged that she had ceased her employment with her sponsoring employer for more than 90 consecutive days and that she had found a new employer to sponsor her, namely, Makris Group.Ply Ltd. As noted previously, the applicant also. advised the Tribunal on 14 January 2018 that she was employed by Sehaj Painting Services Ply Ltd at the time of decision.
[57]As a result, given the evidence before it, the Tribunal finds that the applicant's employment in the nominated occupation of 'Painting Trades Worker' at Robin Painting Services Ply Ltd ceased on 30 January 2016. The Tribunal further finds that the applicant has not returned to this employment at the time of its decision.
[58]Consequently, the Tribunal is satisfied that the applicant has ceased her employment with her sponsoring employer for more than 23 consecutive months at the lime of its decision.
[59]Therefore, the Tribunal finds that the applicant has not complied with the requirement in paragraph 8107(3)(b) that the cessation of her employment must not exceed 90 consecutive days and the requriements of condition 8107, which was a condition that applied to her Subclass 457 visa.
[60]For these reasons, the Tribunal is satisfied that the ground for cancellation in subsection 116(1)(b) exists.
[61]It follows, that as this ground for cancellation does not require mandatory cancellation under subsection 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.” ·
After considering whether the power to cancel the visa under s. 116(3) of the Migration Act 1958 (Cth) (the Act) ought to be exercised or not, the Tribunal decided to affirm the decision of the delegate to cancel the visa.
Grounds of Review
On 1 February 2018, the applicants filed an Originating Application for Review. At the time of the hearing before the Court, the applicants relied upon a Further Amended Application for Review, the grounds of which were as follows:
“1.The Second Respondent (“the Tribunal”) fell into jurisdictional error in that it erred in interpreting or applying the law, and thereby failed to exercise its jurisdiction or erred in the exercise of its jurisdiction.
Particulars
(a)The Tribunal erred in interpreting or applying its power under section 116 of the Migration Act 1958 (“the Act”) in that it said or did as follows:
(i)The Tribunal has considered whether the applicant’s qualifications….. and the circumstances….constitute compelling reasons that would favour the exercise of he cancellation discretion to allow her to remain in Australia.” (CB 190, [76], emphasis added.)
(ii)The Tribunal conducted a detailed consideration of the meaning of “compelling”. (CB 190, [77]-[78])
(iii)The Tribunal said, “Accordingly, having regard to the evidence before it, the relevant case law, the dictionary definitions and the relevant policy guidelines, the Tribunal now turns to consider whether there are compelling reasons for the applicant to remain in Australia that would support the exercise of the cancellation discretion in his (sic) favour….” (CB 190, [79], emphasis added.)
(iv) The Tribunal said, "In considering whether the applicant has a compelling need to remain in Australia ...."(CB 191.[81), and see CB 193, [98), [100], emphasis added.)
Section 116 of the Act, however, does not require compelling reasons for the applicant to remain in Australia before deciding not to exercise the power to cancel a visa.
(b) Repeatedly, the Tribunal used phrases such as:
“whether…. [there were] compelling reasons that would favour the exercise of the cancellation discretion to allow her [to] remain in Australia.” (CB 190, [76], emphasis added, and see CB 194 [106]; CB 195, [113], [119]; CB196, [130]; CB 198, [143], [146]; CB 199. [155]; CB 200, [162]; CB 201, [170], [l75], [176]; CB 202, [178]; CB 203, [1921; CB 207, [223].)
Section 116 of the Act, however, does not provide for "the exercise of the cancellation discretion to allow her [to] remain in Australia'', but rather for a discretion to cancel a visa if there seems a basis for that step. Unless there is a positive reason to cancel the visa and a positive decision to exercise the discretion under section 116, the visa is not cancelled.
2. The Tribunal fell into jurisdictional error in that it had regard to irrelevant considerations.
Particulars
(a)The Applicants refer to and repeat the particulars to Ground 1 of this application.
3. The Tribunal fell into jurisdictional error in that it was unreasonable.
Particulars
(a)On 15 December 2017, the Tribunal asked the applicant to comment on or respond to information and to provide information, by 29 December 2017. (CB 122) On 8 January 2018 the Tribunal invited the Applicant to give written submissions and supporting material by 15 January 2018. (CB 140-141) On 15 January 2018, the Applicant sent some documents and asked for an extension of time to submit documents. (CB 146) The Applicant was not represented, and had been in Australia since 2008. In all the circumstances, the Tribunal was unreasonable in not granting even a short adjournment of the review under section 363(1)(b) of the Act, as requested by the Applicant on 15 January 2018.”
Ground 1 was a claim that the Tribunal had misconceived its duty in that it considered whether the applicant had a compelling need to remain in Australia, and whether there were compelling reasons that would favour the exercise of the cancellation discretion to allow the first applicant to remain in Australia, rather than considering whether there was a basis/positive reason for cancellation of the visa.
At [65] of its reasons, the Tribunal found that in considering whether to exercise its discretion to cancel the applicant’s visa or not, the Tribunal was required to have regard to matters identified in the Department’s Procedures Advice Manual (PAM 3). At [67] of its reasons, the Tribunal acknowledged that the policy guidelines in PAM 3 provided a useful starting point in respect of the exercise of its discretion. At [68] of its reasons, the Tribunal also noted that in its exercise of discretion, the Tribunal had had regard to the applicant’s submissions dated 6 May 2016, 25 May 2016, 28 February 2017 and 14 January 2018.
In Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15] -[16], when considering the force and effect of policy guidelines as set out in PAM 3, Ryan J said as follows:
“[15]Generally speaking, the Tribunal is not strictly bound to apply ministerial policy like that embodied in PAM 3 when making its decision. Thus, in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, Brennan J, sitting as a Presidential Member of the Administrative Appeals Tribunal, said, at 642-643;
“In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
[16]Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-21; Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148-49. Nevertheless, it was indicated by Brennan J in Drake (No 2) (supra) at 645, that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”. PAM 3 specifically instructs delegates (though not the Tribunal) to give it “due weight” but “decision makers must not give it the same force as law”; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [29].”
The matters to be considered in relation to deciding whether a visa ought to be cancelled under s. 116 of the Act, as set out in PAM 3, were as follows:
“s 116 – Deciding whether to cancel
Prescribed matters
Unlike visa cancellation under s 109, there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s 116.
Matters that should be considered
It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:
•The purpose of the visa holder's travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.
•The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.
•The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.
•The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.
•The visa holder's past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).
•Whether there are persons in Australia whose visas would, or may, be cancelled under s 140.
•Whether there are mandatory legal consequences to a cancellation decision - as three examples:
o whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non-refoulement obligations
o whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P of the Act) and
o whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s 189, and liable for removal under s 198.
•Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, - as two examples:
o If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:
o Australia's international obligations and
o PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.
•Whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.
•Any other relevant matters.”
It is to be noted that dot point 1 of PAM 3 required delegates of the Minister to assess whether the visa holder had a compelling need to … “remain in Australia”. The Tribunal at [70]-[80] of its reasons considered the effect of the PAM 3 guidelines, specifically using the wording of dot point 1 of PAM 3, as an expression of its consideration of such guidelines. In relation to dot point 1 of PAM 3, the Tribunal held as follows:
“The purpose of the visa holder's travel and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia:
[70]According to the departmental policy guidelines in PAM3, the Subclass 457 visa programme is "designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot find an appropriately skilled Australian."
[71]As noted previously, whilst the Tribunal is not bound to apply these guidelines, they provide a valid starting point. This is particularly so in terms of assessing the purpose of the applicant's travel and stay in Australia as the holder of a Subclass 457 visa, as well as whether there is a need for her to remain in Australia.
[72]In this case, the applicant confirmed in her statutory declaration (dated 28 February 2017) that she was originally granted her Subclass 457 visa on 19 June 2015 to work for Robin Painting Services Ply Ltd, but that her sponsoring employer had discontinued operation. In addition, in the response (dated 25 May 2016) the applicant's then representative provided to the Department, he acknowledged that the applicant's employment with this business had ceased on 30 January 2016. The Tribunal notes that the applicant has not otherwise disputed these matters during the course of her application for review.
[73]Accordingly, on the basis of the evidence before it, the Tribunal is satisfied that the applicant was issued with a Subclass 457 visa on 19 June 2015 to enable her to remain in Australia and work as a 'Painting Trades Worker' for Robin Painting Services Pty Ltd for a period of 4 years until 19 June 2019.
[74]As a result, given that the applicant's position of employment with her sponsoring employer ceased on 30 January 2016, the Tribunal finds that the original purpose for granting the applicant a Subclass 457 visa no longer exists at the time of its decision.
[75]Notwithstanding, the applicant has provided evidence of her employment with Sehaj Painting Services Ply Ltd since May 201745,and a letter of support (dated 7 January 201846) from this employer indicating that it would like to continue her employment. She has also submitted a Trades Recognition Australia provisional skills assessment (dated 10 August 201747) as a 'Painting Trades Worker' and a 'Statement of Prior Employmenf (dated 19 December 201748) with Sehaj Painting Services Pty Ltd for the purposes of the 'Job Ready' program conducted by Trades Recognition Australia.
[76]As a result, the Tribunal has considered whether the applicant's qualifications, skills and employment background as a 'Painting Trades Worker', and the circumstances in which her employment had ceased, constitute compelling reasons that would favour the exercise of the cancellation discretion to allow her remain in Australia.
[77]In doing so the Tribunal has had regard to the judgment in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal where the Federal Court held that the ordinary meaning of 'compelling' is 'forceful'. In particular, the Court held that forceful reasons (in the context of reasons for an absence from Australia) may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.
[78]The Tribunal also notes that according to the Macquarie Dictionary Online the term 'compelling' is defined to mean: 1. demanding attention or interest...2. Convincing: a compelling argument". It defines 'compassionate' to mean: "1. having or showing compassion. 2. on the grounds of compassion: compassionate leave....4. to have compassion for; pity.
[79]Similarly, The Oxford Dictionaries Online defines 'compelling' to mean: "evoking interest, attention, or admiration in a powerfully irresistible way... not able to be refuted; inspiring conviction... not able to be resisted; overwhelming". It defines 'compassionate' to mean: "feeling or showing sympathy and concern for others".
[80]Accordingly, having regard to the evidence before it, the relevant case law, the dictionary definitions and the relevant policy guidelines, the Tribunal now turns to consider whether there are compelling reasons for the applicant to remain in Australia that would support the exercise of the cancellation discretion in his favour. These are discussed as follows:
(a) The Applicant’s Qualifications, Skills and Employment Background”
[Footnotes omitted]
At [81]-[222] of its reasons, the Tribunal comprehensively dealt with the first applicant’s personal circumstances, and considered such circumstances, under the following headings:
·The Applicant’s Qualifications, Skills and Employment Background
·The Applicant’s Efforts to Find a New Sponsoring Employer
·The Circumstances in Which the Ground of Cancellation Arose, and the Reasons for and Extent of Non-Compliance with any Visa Condition.
·Past and Present Conduct of the Visa Holder Towards the Department
·Degree of Hardship that may be Caused (Financial, Psychological, Emotional or other Hardship)
·Whether there are Mandatory Legal Consequences, Such as Whether Cancellation would Result in the Visa Holder being Unlawful and Subject to Detention, or Whether Indefinite Detention is a Possible Consequence of Cancellation, or whether there are Provisions in the Act which Prevent the Person from making a Valid Visa Application without the Minister’s Intervention.
·Whether there would be Consequential Cancellations under s. 140
·If the Non-compliance relates to a Breach of Sub-regulation 2.43(1)(1a) by a Subclass 457 Visa Holder – Mitigating, Compassionate or (other) Circumstances Factors
·Whether any International Obligations Would be Breached as a Result of the Cancellation
·The Impact on any Victims of Family Violence
·Any other Relevant Matters Raised by the Visa Holder
· The Applicant’s personal circumstances.
The comprehensive analysis by the Tribunal of each of the factors last referred to was undertaken by the Tribunal in the context of its having already noted, at [66] of its reasons, that it was not bound to follow the policy guidelines, and that the matters canvassed by PAM 3 constituted no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations.The Court accepts the submissions made on behalf of the first respondent that the applicant’s submissions ask the Court to look at the reasons of the Tribunal with an eye too keenly attuned to error. When looking at the reasons of the Tribunal as a whole, the Court finds that the Tribunal appropriately considered whether it ought to cancel the visa or not. It used language in its reasons which disclosed that it understood that it had to consider a range of different factors before exercising its discretion as to whether the visa should be cancelled or not. To look at the language of the Tribunal in its reasons in isolation, and submit that such language demonstrated that the Tribunal had erred in the way in which it had approached its task, was unfair. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
At [60] of its reasons, the Tribunal found that a ground for cancellation existed under s. 116(1)(b) of the Act. It then proceeded to appropriately address matters relevant to the exercise of its discretion. It cannot be said that, having done so, the Tribunal erred in the way in which it fulfilled its administrative decision making obligations. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant.
It has long been accepted that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[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.”
There is no merit to Ground 1.
Ground 2 was without merit for the same reasons as found by the Court in respect of Ground 1.
Ground 3 was a claim that the Tribunal acted unreasonably in failing to grant a short adjournment (under s. 364(1)(b) of the Act) as requested by the applicant on 15 January 2018. There is no merit to such claim.
The Tribunal had given the first applicant a reasonable opportunity to obtain another nomination, but such other nomination application had been unsuccessful. The Tribunal appropriately issued a s. 359 notice, but the first applicant failed to provide the relevant information which had been requested within the required timeline. In such circumstance, s. 359C(1) applied, which had the result of preventing the first applicant from appearing before the Tribunal pursuant to the provisions of s. 360(3) of the Act. The Tribunal was not permitted to extend time by reason of the provisions of s. 363A of the Act, which relevantly provided as follows:
“Section 363A –Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”
In any event, the Tribunal did conduct a review notwithstanding the first applicant’s failure to provide the information requested in the notice. After comprehensively addressing all relevant issues, the Tribunal found against the first applicant. It did not err in doing so.
The applicants have failed to demonstrate that the decision of the Tribunal not to grant an adjournment was unreasonable. The reasons of the Tribunal constitute evident and intelligible justifications for the decision to refuse to grant an extension of time in the circumstances. When considering what constituted legal unreasonableness in the light of the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh at [42]-[44] inclusive and [47] said as follows: [2]
“[42]It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.
THE PRINCIPLES UNDERLYING LEGAL UNREASONABLENESS
[43]The conditioning of a power such as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li 297 ALR 225; [2013] HCA 18, particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J; Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [40] per Gaudron and Gummow JJ; Li 297 ALR 225; [2013] HCA 18 at [88]-[92] per Gageler J. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication.
[44]In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].
[2] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
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[47]This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.”
It could not be said that the Tribunal’s refusal to grant the adjournment was arbitrary, capricious, without common sense or plainly unjust. [3]
[3] Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [42].
The Court further finds that the statutory requirement for the grant of a visa to the first applicant could not be satisfied in circumstances where there was no approval of any nomination application for an employment position able to be taken up by the first applicant. The requirements of Cl 457.223 of Schedule 2 to the Regulations could not be met because there was no nomination approved by the Minister pursuant to the provisions of s. 140GB of the Act.
Even if there had been jurisdictional error on the part of the Tribunal, it would be futile for the application for review to be granted in such circumstances.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 October 2022
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