Mudiyanselage v Minister for Immigration
[2018] FCCA 1114
•7 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUDIYANSELAGE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1114 |
| Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal – visa criteria applicable to Regional Nomination (Permanent) (Class RN) visa – withdrawal of nominated employers sponsorship – assertion of jurisdictional error and breach of natural justice – applicants given opportunity to present evidence and comment on evidence in respect of sponsorship withdrawal – no breach of natural justice established – AAT considered regulatory criteria applicable to visa – no error demonstrated – not open to AAT to adjourn proceedings to enable applicant to substitute another sponsors – appeal dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.35A; 359A(1); 360; 474; 476 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 Hasan & Ors v Minister for Immigration & Border Protection & Anor [2016] FCCA 1049 |
| First Applicant: | PAMUDITHA VISHARA RATHNAYAKE MUDIYANSELAGE |
| Second Applicant: | JAYALA SUBASHANI DEWARAPPELUMALAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 80 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 7 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms Milutinovic |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The applicant pay the first respondent’s costs fixed in the sum of five thousand five hundred dollars ($5,500.00).
The application filed 8 March 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 80 of 2017
| PAMUDITHA VISHARA RATHNAYAKE MUDIYANSELAGE |
First Applicant
| JAYALA SUBASHANI DEWARAPPELUMALAGE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in the nature of judicial review. It seeks the issue of a constitutional writ to quash a decision of the Administrative Appeals Tribunal “the AAT” not to grant the applicant and his dependent spouse Regional Nomination (Permanent) (Class RN) visas,[1] pursuant to the Migration Act 1958 (Cth) “the Act”.
[1] Hereinafter referred to as “the visa”
The applicants are both citizens of Sri Lanka. The primary applicant is Pamuditha Vishara Rathnayake Mudiyanselage,[2] the second applicant is Jayala Subashani Dewarappelumalage. She is the primary applicant’s spouse. The success of Ms Dewarappelumalage’s application is dependent on the success of that of her spouse.
[2] Hereinafter referred to as “the primary applicant”
On 2 December 2014, the primary applicant lodged an application for the visa on the basis that he had been nominated for the position of retail manager, at a hardware store in Coober Pedy, in the northern outback region South Australia. In support of his application, he provided a letter of support signed by the office manager of his prospective employer.[3] This employer was Coober Trading Pty Ltd (trading as IGA Coober Pedy).
[3] See casebook at 96-97
Pursuant to section 65 of the Act, the Minister (and necessarily his departmental delegates) is required to grant a visa, issuable under the Act, if satisfied that all relevant criteria attaching to that visa have been satisfied by the applicant concerned.
In the case of the visa arising for consideration in this matter, those criteria are set out in clause 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth) “the Regulations”.
Subclass 187 of Schedule 2 is headed Regional Sponsored Migration Scheme. The primary applicant, in general terms, applied for a visa to work in Coober Pedy, for the nominated position of store manager, under the sponsorship of Coober Trading Pty Ltd.
Clause 187 provides a number of primary criteria, which must be satisfied by one of the applicants in a familial situation. Thereafter, there are a number of secondary criteria, dependant on which visa stream is applicable, which must also be satisfied.
In this case, the primary applicant sought a visa pursuant to the direct entry scheme. The secondary criteria applicable to this visa are set out in clause 187.23. Amongst other things, an applicant must be under 45; being competent in English; and satisfy a character assessment.
More germane to these proceedings, any applicant, who is seeking a visa to pursue an employment opportunity, must satisfy the criteria set out in subclauses (1) – (6) of clause 187.233. These can be summarised, in generic terms as follows:
·The Minister has, in writing, approved the employment nomination, pursuant to Regulation 5.19(4), which approval is based on the Minister identifying a need for the applicable employer to employ the person nominated;
·The person proposed to employ the applicant, is the person who made the nomination;
·The Minister has in fact approved the nomination;
·The nomination has not subsequently been withdrawn;
·The position is still available to the applicant concerned;
·The application for the visa is made not more than 6 months after the Minister has approved the nomination.
On 7 July 2015, a delegate of the Minister of Immigration & Border Protection[4] determined that neither the primary applicant nor his spouse met the criteria provided by clause 187.23 and therefore declined to grant the visa in question.
[4] As the Minister for Home Affairs was formerly known
The reason provided for the delegate was as follows:
“On 22 May 2015 the nomination lodged by Coober Trading Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration & Border Protection. On the same day, a natural justice letter was sent to the applicant providing him with the opportunity to comment or withdraw the visa application within twenty eight days, if the application was not withdrawn, the application would be refused.
To date, no response has been received.
Since the appointment has been refused, clause 187.233(3) is not met.”[5]
[5] See casebook 118-119
On 24 July 2015, both applicants applied to the AAT for a review of the delegate’s decision. Concurrently with this application, the primary applicant’s sponsoring employer – Coober Trading Pty Ltd – also sought its own review of the departmental decision to refuse its sponsorship nomination of Mr Mudiyanselage.
In accordance with the statutorily based natural justice hearing requirements, applicable to AAT matters, set out in Part 5 of the Act, the applicants were invited to attend a hearing before the AAT, which was convened for 18 January 2017.
On the same day, Mr Carter, apparently the proprietor of the business, which had hitherto been nominated as Mr Mudiyanselage’s employer, under the scheme and was providing its sponsorship of him, wrote to the AAT in the following terms:
“On behalf of Coober Trading I wish to withdraw this application effective immediately.”[6]
[6] See casebook at 133
Given the nature of this letter, on its face, it would appear to be clear cut that the primary applicant could not satisfy clause 187.232(4) as his employer nomination had been withdrawn. This being one of the mandated secondary criteria provided by the Regulations.
The AAT provided the notice from Coober Pty Ltd, withdrawing its nomination, to each of the applicants, via their migration agent, who subsequently, on behalf of both applicants, indicated to the Tribunal their (the applicants) intention to proceed with the review.
The hearing duly took place, as scheduled, on 18 January 2017. The applicants attended by telephone. In this context, pursuant to the provisions of section 359AA of the Act, the Tribunal provide particulars of the information received by it, which was adverse to the applicants. This was the information that the primary applicant’s prospective employer had withdrawn its sponsorship of him. The applicants did not seek an adjournment to respond formally to this adverse information but chose to proceed with the hearing.
In this context, the primary applicant indicated that he had been working in Coober Pedy, for his anticipated sponsor, for a period of two and a half years. He further indicated that the living conditions in Coober Pedy were difficult and, as such, he and his partner had made considerable sacrifices to move there. In these circumstances, the primary applicant indicated his view that he had been harshly and unfairly treated by his proposed sponsor, who had taken advantage of him by arbitrarily withdrawing his sponsorship.
The AAT delivered its decision on 10 February 2017. In its reasons, the AAT considered that the sole issue requiring its decision concerned whether the primary applicant met the criteria, applicable to direct entry stream applicants, provided by clause 817.233 of the Regulations. It determined as follows:
“As noted above, the Tribunal was formally notified on 17 November 2016 that Coober Trading Pty Ltd (trading as IGA Coober Pedy), the employer who originally nominated the applicant for a subclass 187 visa, had withdrawn its review application with the Tribunal in relation to that decision. There is no indication that it had lodged another nomination on the applicant which had been approved by the Department. Accordingly, the Tribunal finds that there is no approved nomination of the applicant by Coober Trading Pty Ltd (trading as IGA Coober Pedy). As a result, the Tribunal must find that the applicant does not meet clause 187.233(3) and thus does not meet clause 187.233 as a whole.”[7]
[7] See casebook at 155 [21]
In these circumstances, the Tribunal concluded that, as the primary applicant did not meet the requirements of 187.233, it was required to affirm the decision under review. As the primary visa application had been unsuccessful, Ms Dewarappelumalage necessarily could not satisfy the applicable secondary visa criterion, namely that she was a family member of a visa holder.
As a consequence of this decision, on 6 March 2017, the applicant’s commenced proceedings in this court, seeking a judicial review of the decision. The grounds of this application are as follows:
“The Tribunal failed to consider that applicants personal, employment circumstances and unfair termination of employment.
That a breach of the rules of natural justice occurred in connection with the making of the Decision.
That the applicant was denied procedural fairness in connection with the making of the Decision.
That procedures that were required by law to be observed in connection with the making of the Decision were not observed.
That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.”[8]
[8] See casebook at 159-160
Neither of the applicants is legally qualified and it would appear to be the case that they have not had extensive legal advice in the preparation of this application. As a consequence, it is only to be expected that it would be difficult for them to identify readily any obvious jurisdictional error.
In his affidavit in support of the application, the primary applicant deposed as follows:
“Unfortunately, the Tribunal Member failed to consider all relevant factors and correctly assess my decision and make a decision accordingly.
I believe the tribunal member made a jurisdictional error by not considering the essential facts and by not giving correct weight to the matters.”
In support of these contentions, he provided a submission prepared by his former adviser, which was sent to the ATT on 25 September 2016. This submission was largely addressed to the applicability of Regulation 5.19 and the nomination of the primary applicant to the hardware management position in Coober Pedy.
The primary applicant appeared before the court, on his own behalf, to present his application. In his submission to the court, he reiterated his perception that he had been harshly dealt with, given his good record in Australia, both as a student and employee; and given the great personal sacrifices he and his family had made to live in Coober Pedy.
The legal principles applicable
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High court under section 75(v) of the Constitution.
This provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth. In their application, the applicants seeks that such a writ issue to the AAT, after its decision has been quashed and it be thereafter directed to re-hear their application according to law.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in relation to what are categorised as privative clause decisions. This expression is defined in section 474(2) as meaning a decision of an administrative character made under the Act. The decision relevant to these proceedings is such a privative clause decision.
Pursuant to section 474(1) privative clause decisions are deemed to be final and conclusive and as such, not capable of being subject to challenge in court or to the issue of any constitutional writ, which is the remedy sought by the applicants.
However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[9]
[9] See Craig v South Australia (1995) 184 CLR 163
It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.
Is there an identifiable jurisdiction error?
Ground one asserts that the AAT failed to consider the applicants’ personal circumstances, particularly their claim that they had been harshly dealt with by the withdrawal of their employment sponsorship. I can appreciate their feelings, however, these were not matters which the Tribunal could take into account under the applicable regulatory provision. The central and only issue for the AAT was whether the primary applicant had satisfied all of the mandated criteria under clause 187.233. It had no discretion to waive this compliance.
In my view, the Tribunal correctly posed for itself the question it was required to answer in order to discharge the jurisdiction conferred upon it, namely had the applicant met the conditions stipulated by clause 187.233.
With the withdrawal of the sponsorship by Coober Pty Ltd, it was clear that the primary applicant had not met the requirement that he had a sponsored position of employment. The AAT had no jurisdiction to inquire into the probity of Coober Pty Ltd’s conduct in this regard and no related discretion to grant the visa on the basis of any potential unfairness arising to the applicant as a consequence of the withdrawal of his sponsorship, notwithstanding his commitment to both the employer concerned at Coober Pedy generally.
Accordingly, on this basis, it cannot be said that the decision made by the AAT represented an improper exercise of the jurisdiction conferred upon it [Ground 5]. Rather the Tribunal did not what it was required to do. There is no fact or circumstance, which the Tribunal was required to consider, which it do not in fact consider. The only legally reasonable conclusion, which was open to the AAT, was that the primary applicant had not satisfied the condition precedents essential to the granting of the visa in question.
Grounds 2 to 4 deal with issues pertaining to natural justice and procedural fairness. The procedural steps, which the AAT is required to follow, to acquit its statutorily based obligations to accord natural justice are set out in Part 5 of Division 5 of the Act. In particular, section 357A provides that this Division is taken to provide an exhaustive statement of the natural justice hearing rule.
The applicants were invited to give evidence and provide arguments in support of their application to be granted the relevant visa by appropriate written notice [see sections 360 & 360A]. They were also formally advised by the AAT of the salient issue, which had arisen in their application and which would be central to the Tribunal’s decision making function, namely that Mr Mudiyanselage’s employment sponsorship had been withdrawn on 17 November 2016. This was done on 21 November 2016.[10]
[10] See Casebook at 136
In these circumstances, I am satisfied that the Tribunal has acquitted its statutory obligations to provide relevant information to an applicant arising under section 359A(1). It provided this same information orally to the applicants at hearing, including explaining its central importance to its decision making process.[11]
[11] Ibid at 154 [13]
In so doing, I am satisfied the Tribunal acquitted its obligation to provide clear particulars of any information, which necessarily can encompass information adverse to the application concerned, in a manner which was understandable by the applicants and gave them an appropriate opportunity to respond to this information. Accordingly, I am also of the view that the AAT has properly fulfilled its obligations arising under section 359AA of the Act.
A fair reading of the Tribunal’s reasons indicates that it was sympathetic to the plight into which the applicants had fallen, as a consequence of the withdrawal of Mr Mudiyanselage’s employment sponsorship. This conclusion arises because the Tribunal has recorded the principal applicant’s complaints regarding his perception that his treatment has been unfair and enabled him to provide evidence about his efforts to obtain another job in Coober Pedy and his desire to seek the visa sponsorship of his new employer. [12]
[12] Ibid at 154 [14]
In this context, the Tribunal recorded the principal applicant’s evidence that he had obtained another position in Coober Pedy but this position was not as yet formally approved by the Department and, at best, could not be processed for some weeks. However, the Tribunal indicated that a deferral of the current matter would serve no useful purpose as the regulatory framework, so far as its determination was concerned, was that it could only determine whether the applicant had the sponsorship of the employer nominated in the current visa application, not some prospective employer.[13]
[13] Ibid at 155 [19]
This is clear from the reading of clause 187.232(1)(a), which requires the position to which any visa application applies must be the one nominated in it and cannot be one substituted later. The situation in this case is analogous to one dealt with by Judge Smith in Hasan & Ors v Minister for Immigration & Border Protection & Anor,[14]a case which also involved a visa matter involving an employer nomination. His Honour said as follows:
“… the reason for the Tribunal’s decision was that the nomination by Wrap & Grill was not approved. That much was not contested. The consequence of that was, as the Tribunal concluded, that the applicant did not satisfy the criteria in cl.187.233. It was not possible for the applicant to do so by relying on the later application for approval because that was not in the visa application…”
[14] Hasan & Ors v Minister for Immigration & Border Protection & Anor [2016] FCCA 1049 at [22]
The same is true in the current matter. The reason for the visa refusal was that there was no-longer any visa nomination by Coober Pedy. The applicants are aggrieved at its withdrawal but its consequence was that they could no-longer satisfy the visa conditions specified in clause 187.233.
The AAT had no jurisdiction to waive this condition and it would have been futile to defer the proceedings. In these circumstances, in my view, the Tribunal’s decision is not affected by jurisdictional error and the application must be dismissed.
The first respondent seeks costs in the sum of $5,500.00, which is less than the amount set by the applicable schedule attached to the court’s rules. I will make an order for costs in this amount.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 7 May 2018
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