NAEEM v Minister for Immigration
[2018] FCCA 2722
•24 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAEEM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2722 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – (Temporary) Work (Skilled) (subclass 457) – visa cancellation – applicants asking the Tribunal to defer its decision pending the determination by the Minister of the first applicant’s nomination approval application – the Tribunal deferring its decision for six months but determining the matter before the Minister had determined the nomination approval application – whether that was unreasonable in a legal sense. |
| Cases cited: Chen v Minister for Immigration and Border Protection [2016] FCCA 2351 |
| First Applicant: | MUHAMMAD NAEEM |
| Second Applicant: | IRAM JAMIL |
| Third Applicant: | HASHIM NAEEM By his litigation guardian, the first applicant |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1058 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 21 June 2018 |
| Date of last submission: | 5 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2018 |
REPRESENTATION
| Advocate for the first applicant: | In person |
| Advocate for the second applicant: | No appearance |
| Advocate for the third applicant: | By his litigation guardian, the first applicant |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Melanie Montalban |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper Australia |
ORDERS
The decision of the Administrative Appeals Tribunal made on 6 May 2016 in matter number 1510559 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1058 of 2016
| MUHAMMAD NAEEM |
First Applicant
And
| IRAM JAMIL |
Second Applicant
And
| HASHIM NAEEM |
Third applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the first applicant’s (Temporary) Work (Skilled) (subclass 457) visa.
The first applicant is the husband of the second applicant. The third applicant is their child.
Background
In his written submissions filed on 30 November 2016, the Minister set out the relevant background as follows:
2.The first applicant (the applicant) is a male citizen of Pakistan and was granted a subclass 457 Temporary Work (Skilled) visa on 21 August 2013. The second applicant and third applicant are the wife and son of the first applicant respectively.
3.On 7 July 2015, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under section 116 of the [Migration] Act. The NOICC outlined that there appeared to be a ground for cancellation under section 116(1)(g) of the Act. Prescribed grounds are set out in regulation 2.43(1)(l) of the Migration Regulations 1994 (Cth) (the Regulations):
Regulation 2.43
2.43(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
[…]
(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:
…
(iv) the sponsor has been cancelled or barred under section 140M of the Act […]
4.The delegate advised that on 29 November 2013, approval of the standard business sponsor who nominated the applicant in the most recently approved nomination had been cancelled and the sponsor barred from making future applications for approval for a period of 5 years. This indicated that the ground for cancellation prescribed in regulation 2.43(1)(l)(iv) existed. The applicant was provided the opportunity to respond to the information in the NOICC and give reasons why the visa should not be cancelled.
5.On 21 July 2015 the applicant’s agent responded to the NOICC on the applicant's behalf, claiming that:
5.1 The applicant had been looking for work after his previous employer and sponsor vanished.
5.2 The applicant had been suffering from depression and stress.
5.3 The applicant had found another sponsor willing to employ him as a cook.
6.On 28 July 2015, the delegate of the Minister cancelled the applicant’s visa pursuant to section 116(1)(g) of the Act. The delegate found the prescribed ground for cancellation existed, and considered reasons why the applicant’s visa should not be cancelled but assessed that these reasons did not outweigh the reasons for cancelling the visa. In making this finding, the delegate considered the factors set out in Department’s Procedures Advice Manual - ‘General visa cancellation powers’ (PAM 3), as follows:
• the purpose of the applicant’s travel and stay in Australia
• the extent of the applicant’s compliance with the conditions on which the subclass 457 visa was granted
•degree of hardship that may be caused if the visa is cancelled
• circumstances in which the grounds for cancellation arose
• past and present behaviour towards the department
• if any other person would be affected by consequential cancellation under s140 of the Act,
• Australia’s international obligations, and
•Any other relevant consideration
7.On 4 August 2015, the applicant applied to the AAT for review of the delegate’s decision and provided a copy of the delegate’s decision with his application.
8.The applicant’s agent provided a submission to the AAT prior to the hearing, which appeared to be identical to the submissions previously provided to the Department. These submissions stated [8]:
8.1 The applicant was employed by his sponsor from January 2013.
8.2 The applicant’s sponsor vanished without giving notice to his employees. The applicant tried to contact him but was unable to do so.
8.3 The applicant attempted to contact his migration agent, but could not reach him.
8.4 The applicant’s previous employer exploited him, and had failed to pay him.
8.5 The applicant did not know the conditions of his visa.
8.6 The applicant had been depressed, stressed and impecunious.
8.7 The applicant’s wife is in poor health and is recovering from her pregnancy.
9.On 10 December 2015, the applicant appeared before the AAT along with his registered migration agent.
10.At the hearing the applicant told the AAT that he had found a new sponsor and provided evidence of that prospective employer’s sponsorship approval [9]. He also provided a copy of the Department’s acknowledgement that the sponsor had made a nomination application in respect of a position for the applicant as a cook.
11.The AAT adjourned the hearing to allow the applicant time to provide evidence of the outcome of that nomination application. The applicant was ultimately given until 28 April 2016 to provide evidence of the nomination decision.
12.After almost a six month adjournment, the AAT decided to determine the proceedings on the material before it. The applicant had not presented any evidence of the determination of the nomination application, nor was there any evidence demonstrating that the nomination would be approved.
13.On 6 May 2016 the AAT affirmed the decision to cancel the applicant’s Subclass 457 visa, and found that it had no jurisdiction with respect to the second named applicant.
The Tribunal’s reasons
In his written submissions filed on 30 November 2016, the Minister set out a summary of the Tribunal’s reasons for decision as follows:
15.The AAT found that the prescribed ground for cancellation in regulation 2.43(1)(l)(iv) existed - that the applicant’s sponsor was cancelled and barred, and was accordingly satisfied that the ground for cancellation in section 116(1)(g) of the Act existed (at [16]).
16.The AAT then considered whether to exercise its discretion to cancel the applicant’s visa, having regard to PAM3 ‘General visa cancellation powers’ (at [18]-[44]).
16.1.The AAT gave weight to the consideration that the purpose for which the applicant’s subclass 457 visa was granted (being to work for a particular sponsor in a skilled occupation) no longer existed [23]. It further found that the applicant’s failure to seek or re-establish his employment as a cook with an approved sponsor is a breach of an important and fundamental condition of a subclass 475 visa [25]. It found that this weighs strongly against the discretion not to cancel the visa [26].
16.2In considering whether the applicants would suffer hardship as a result of the cancellation, the AAT found that the applicant’s family in Pakistan would allow him and the second and third applicants to re-establish themselves in Pakistan [30]. Moreover, the AAT found that the applicant could apply for a new 457 visa from overseas [33].
16.3 The AAT assessed the applicant’s claims regarding his stress and depression, and the second applicant’s illness during and after pregnancy. The AAT found that no medical evidence had been adduced and accordingly gave little weight to those claims [37].
16.4 Having considered the circumstances as a whole, the AAT concluded that the visa should be cancelled (at [44]).
17.In considering whether to exercise its discretion to cancel the applicant’s visa, the AAT had regard to relevant circumstances, including but not limited to the matters identified in PAM 3 (at [18]). The AAT considered the purpose of the applicant’s travel and stay in Australia and was satisfied that the purpose was to work for the sponsor as a cook on a temporary basis [21].
18.In relation to the second and third applicants, the AAT noted their visas were automatically cancelled by operation of section 140(1) of the Act, when the applicant’s visa was cancelled. The AAT found that no decision was involved in the visa cancellation under section 140(1), and that the AAT had no jurisdiction with respect to the second and third applicants (at [3]).
19.The AAT further noted that at the time of the delegate’s decision, the Department appeared to be unaware of the third applicant's birth [3].
Ground 1
The first ground of review in the application filed on 20 May 2016 (“the application”) is:
The First Respondent failed to properly consider relevant material when making their decision on 4 December 2015[.]
The first respondent is the Minister for Immigration and Border Protection, or, in practical terms, the Minister’s delegate. This court is not permitted to review the delegate’s decision. Consequently, this ground cannot succeed.
Ground 2
The second ground of review in the application is:
The Second Respondent failed to properly consider relevant material when making their decision on 11 April 2016.
The applicants were unrepresented before this court. They did not provide particulars in their application in relation to their grounds. Nor did they file written submissions. The affidavit in support of their application provided no particulars of their grounds. The second applicant did not attend the court for the hearing in this matter.
The first applicant said in oral submissions that the error of the Tribunal was that it did not defer its decision until after the Minister had made a decision on the first applicant’s sponsor’s application nominating the first applicant as an employee. The first applicant explained that:
a)his original sponsor had disappeared;
b)after receiving the notice of intention to cancel his visa, the first applicant found another sponsor who was willing to employ him;
c)the new sponsor was approved as a sponsor;
d)the new sponsor lodged a nomination approval application whereby the new sponsor sought approval to employ the first applicant as a cook;
e)the first applicant asked the Tribunal to defer its decision until the Minister had determined the new nomination approval application;
f)the Tribunal deferred its decision a number of times but eventually made its decision affirming the cancellation of the first applicant’s visa before the Minister had determined the new nomination approval application;
g)the Tribunal’s failure to defer its decision until after the Minister had made his decision was unreasonable in a legal sense.
The first applicant commenced work with his original sponsor in January 2013. One day in September 2013, he went to work at the restaurant but found that it was closed. The restaurant remained closed and the original sponsor disappeared. The first applicant began to work as a taxi driver. His wife became pregnant and had a number of problems including gestational diabetes. The first applicant had to look after her and assist with the baby after his birth. The first applicant was sent a notice of intention to cancel his visa dated 7 July 2015.
It seems that the first applicant found another sponsor whose approval application was refused by the Department on 8 September 2015. The applicant then found a new sponsor whose sponsorship approval application was granted on 2 December 2015. The new sponsor lodged a nomination approval application in respect of the first applicant on 4 December 2015.
The Tribunal conducted a hearing on 10 December 2015. The applicants asked the Tribunal to defer its decision in relation to the first applicant’s visa cancellation until after the delegate had determined the new sponsor’s nomination approval application in respect of the first applicant lodged on 4 December 2015. The Tribunal did defer its decision until 6 May 2016. However, on that date, the Tribunal handed down its decision stating:
11.The Tribunal allowed some time for the determination of this nomination application however it has now been almost 6 months since the hearing. The Tribunal has considered whether it should allow the applicant additional time for a decision to be made on the nomination in respect of him. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. In addition there [is] no evidence suggesting that the nomination will be approved. In this context, as advised to the applicant, the Tribunal has decided to proceed to determination of the application on the material before it.
[1] [2002] FCA 617
[2] [2012] FMCA 28
At the hearing before this court, the Minister sought additional time to file written submissions in relation to the issue raised by the first applicant during the hearing. That time was granted and the Minister filed further written submissions following the hearing. The applicants did not wish to file further written submissions.
Neither the Tribunal nor the Minister suggested that a further deferral of the Tribunal’s decision would have been futile. Rather, the Minister argued that it was not unreasonable for the Tribunal to determine the matter without waiting for the Minister to make a decision on the nomination approval application dated 4 December 2015.
The Minister relied on Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1 where Allsop CJ and Robertson and Mortimer JJ said:
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.
…
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: Li 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 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 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 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].
…
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.
The Minister also relied on Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 where Wigney J said at paragraph 41:
The relevant principles relating to legal unreasonableness in the context of decisions by the tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this court in Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; 139 ALD 50; [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63] and [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]–[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]–[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105]: Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–1; Singh at [44]–[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]–[52].
(h) The overriding duty of the tribunal to review a decision may require the tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]–[102].
(i) It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal relied on two cases to conclude that it is not required to indefinitely defer its decision-making processes. The first was Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. In that case, Conti J stated:
31.I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal’s decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.
The Minister accepted that Huo was distinguishable from the present case. In Huo, the Tribunal found that a sponsorship nomination was not likely to be approved. The Tribunal in the present case did not express any view about the likelihood of the nomination approval application being successful. The Tribunal merely said that there was no evidence suggesting that the nomination will be approved. That observation was neutral, in the context of this case.
The second case that the Tribunal relied upon was Manna v Minister for Immigration and Citizenship [2012] FMCA 28. In that case, Nicholls FM, as his Honour then was, said:
60.In all therefore, there was no obligation on the Tribunal to advise the applicant as to when it would make its decision. In the context, it was reasonably open to the Tribunal to find that the applicant had been given a reasonable opportunity to meet the legislative requirement for “competent English”. The applicant was put on notice of the opportunity to sit an IELTS test at a time which would have allowed her to submit an IELTS report at a time prior to the time of decision.
61.There is no obligation on the Tribunal to delay making its decision in these circumstances, particularly given the history to which it had regard. In all the circumstances the Tribunal’s exercise of the discretion to proceed was not arbitrary or capricious. While it may be described as a “hard” decision, it cannot be said to be “unfair” given the applicant had ample opportunity and was on notice of the relevant issues.
The Minister also accepted that Manna is distinguishable. In Manna, it was incumbent upon the applicant to sit an IELTS test and submit the results to the Tribunal. In the present case, the first applicant had done all he could to meet the relevant requirements by lodging his nomination approval application. The matter was then in the hands of the Minister.
However, the Minister argued that, although Huo and Manna were factually distinguishable, it was open to the Tribunal to rely on them for a general approach. In support of that proposition, the Minister referred to Chen v Minister for Immigration and Border Protection [2016] FCCA 2351 where Judge Smith said:
29.The fourth attack is that the authorities referred to by the Tribunal were factually distinguishable. Whether or not those cases are distinguishable is irrelevant. The Tribunal did not purport to follow them in any narrow sense of that word, but only examined the approach taken by the Tribunal to the issues that arose and then took into account the judicial approval of that approach. Thus, at [39], it referred to the fact that the Tribunal’s “approach was endorsed” in a decision of this Court. Further, and in any event, the circumstances in Ghori v Minister for Immigration & Citizenship [2011] FCA 759 were similar to those before the Tribunal to the extent that there had been previous applications for extensions of time. There was nothing illogical about the Tribunal’s approach. It is one taken by the Courts on a daily basis in the consideration of the exercise of discretionary powers.
I accept the Minister’s proposition in a general sense. I also note that Chen itself is distinguishable from the present matter in that Chen concerned a business sponsorship, as did Singh. The present case is different because the first applicant required both an employer to be approved as a sponsor, which he had, and him to be approved as the employee of the sponsor, which he was waiting on. It is not insignificant that the first applicant in this case had previously been approved as an employee of a sponsor to work as a cook and he was seeking the same approval for the future. That circumstance tends to suggest that the nomination approval application was not entirely without merit, although obviously it is not for this court to assess such matters.
The Minister also noted that the chronology in this case was that:
a)the applicant submitted his nomination approval application on 4 December 2015;
b)the Tribunal hearing was on 10 December 2015, at which time the applicants asked for a deferral of the decision;
c)on 29 January 2016, the applicants’ agent asked for a deferral of at least 15 to 20 days to provide the Tribunal with a decision on the nomination approval application;
d)the Tribunal granted an extension until 26 February 2016;
e)on 29 February 2016, the applicants’ agent advised the Tribunal that the first applicant was still awaiting a decision on the nomination approval application and asked for a deferral of another 15 to 20 days;
f)the Tribunal granted an extension until 30 March 2016, saying it was the final extension;
g)on 13 April 2016, the applicants’ agent advised the Tribunal that it was still awaiting a decision on the nomination approval application;
h)the agent enclosed an email dated 1 April 2016 from the Department saying:
… please be assured that your application is progressing and a decision will be made as quickly as possible.
i)the agent told the Tribunal that it seemed likely that the decision will be made very soon and requested a further extension;
j)the Tribunal replied on 19 April 2016 saying that it would give a further extension until 28 April 2016;
k)the agent said nothing further; and
l)the Tribunal made its decision on 6 May 2016.
It seems to me that it is insignificant that the agent said nothing further after the Tribunal’s communication of 19 April 2016. The Tribunal obviously knew the applicants’ position.
The Minister noted that there was no evidence before the Tribunal which positively suggested that the nomination approval application was likely to be approved. However, it is difficult to imagine what that material might be, or how the applicants could have obtained it. As mentioned above, the first applicant had been granted approval for a nomination as a cook in the past. In such circumstances, it seems unlikely that his current nomination approval application would have been wholly without merit.
In my view, it was legally unreasonable for the Tribunal to make its decision in this case without waiting for the Minister to make his decision on the nomination approval application, particularly in circumstances where the Minister had said about five weeks earlier that the application was progressing and a decision would be made as quickly as possible.
This is not a case where the applicants had failed to do what they could to progress the matter. The delay in this case was entirely in the hands of the Minister and was outside the control of the applicants. In the present matter, the Tribunal has over prioritised an understandable desire to move files through the system, and under prioritised the justice of the case. The applicants’ application to the Tribunal was made on 4 August 2015. The Tribunal’s decision was made about nine months later. That was relatively quick, given the known delays in the migration system.
This ground is made out.
Conclusion
As one of the applicants’ grounds has been made out, the decision of the Tribunal will be set aside and the matter will be remitted to the Tribunal. I will hear the parties on the question of costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 24 September 2018
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