Odero v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 910
•12 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Odero v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 910
File number: PEG 94 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 12 October 2023 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the decision to refuse the nomination application was unfair because it did not consider that the business was located in a remote area – whether the Minister ought to have requested more information from the sponsor – whether the Tribunal erred by failing to take evidence from the applicants’ proposed witnesses – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 361, 395AA, 476, 479 & 486C
Migration Regulations 1994 (Cth), cll 187.233 and 187.311 in Schedule 2
Cases cited: AYX 17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BOX16 v Minister for Immigration and Border Protection [2020] FCA 801
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 524
Mamun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 95
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 6 October 2023 Place: Perth Applicants: First applicant appeared in person (by audio link) Counsel for the First Respondent: Mr C Beetham Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 94 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FREDRICK MALUKI ODERO
First Applicant
DORCUS NZULA MUTUA
Second Applicant
ABIGAIL TABITHA MALUKI
Third Applicant
RENEE MARTHER MALUKI
Fourth Applicant
DINAH ANGIE MALUKI
Fifth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicants in this proceeding are citizens of Kenya (Court Book (“CB”) 13-23 & 40-42). The first and second applicants are husband and wife respectively (CB 14-16). The third, fourth and fifth applicants are their minor children (CB 17-23).
On 5 March 2019, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (the “visa”) in the Direct Entry Stream (CB 13-39). The second, third, fourth and fifth applicants were included in that visa application as members of the first applicant’s family unit (CB 15-23). In his application, the first applicant indicated that he was nominated for the position of “Sales and Marketing Manager” (CB 25) by 2082 Albany Highway Pty Ltd (the “sponsor”) (CB 53). Attached to the visa application were a number of supporting documents (CB 40-51). The first applicant also included details of a registered migration agent who was appointed to represent the applicants (the “representative”) (CB 24-25).
On 15 August 2019, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application in relation to the first applicant (CB 75-81).
Later that same day (also on 15 August 2019), the Department of Home Affairs (the “Department”) asked the first applicant (through the applicants’ representative) to comment on the fact that the sponsor’s nomination application had been refused (CB 52-56). The first applicant was required to provide a response within 28 days (CB 53).
No response was provided by or on behalf of the applicants (CB 67).
On 25 September 2019, a delegate of the Minister refused to grant the applicants the visas (CB 66-72). The delegate determined that, as the sponsor’s nomination application had been refused, the first applicant did not satisfy cl 187.233 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 67). The delegate also found that the second, third, fourth and fifth applicants failed to satisfy cl 187.311 in Schedule 2 of the Regulations (CB 68-71).
On 16 October 2019, the applicants applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 91-93). The applicants appointed the same representative to assist them with their Tribunal review (CB 93).
The sponsor also sought review of the delegate’s decision refusing the nomination application at the Tribunal (CB 83).
On 9 April 2020, the Tribunal was advised that the applicants had appointed a new representative (the “new representative”) (CB 99-101).
On 14 October 2020, the applicants’ new representative provided letters of support in relation to the first applicant and the sponsor’s business, together with other supporting materials (CB 102-122).
On 30 March 2023, the Tribunal affirmed the delegate’s decision refusing the sponsor’s nomination application (CB 82-90).
That same day (being on 30 March 2023), the Tribunal invited the applicants (through their new representative) to attend a hearing before it (by telephone) on 27 April 2023 (CB 123-127).
On 27 April 2023, the first and second applicants attended the Tribunal hearing by telephone. They were assisted at that hearing by their new representative (CB 134-137).
On 2 May 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 142-146).
On 6 June 2023, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-6). With that application, the applicants also provided an affidavit affirmed by the first applicant (and filed with the Court on 6 June 2023) (CB 7-12).
THE TRIBUNAL’S DECISION
The applicants’ application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error.
In determining whether the Tribunal has fallen into error, it is useful to first outline the Tribunal’s decision in some detail.
The Tribunal’s decision is five pages long and spans 25 paragraphs (CB 142-146). The final page contains extracts of relevant legislative provisions (CB 146).
The Tribunal began by identifying the type of visas under review. The Tribunal noted that the first applicant had applied for the visa (in the direct entry stream) on 5 March 2019, had listed his nominated occupation as Business Development Manager and that applicants two, three, four and five had also been included in the visa application. The Tribunal explained that the applicants’ visas were refused by a delegate of the Minister because the first applicant did not meet cl 187.233 in Schedule 2 of the Regulations as the nomination lodged by his sponsor had been refused (at [1]-[5]).
The Tribunal confirmed that the first and second applicants had appeared at a hearing before the Tribunal on 27 April 2023 to give evidence and present arguments in relation to the review application. The Tribunal noted that a witness had also attended the hearing but did not give evidence at that hearing (instead providing a written submission after the hearing). The Tribunal also confirmed that the applicants were represented in relation to the review (at [6]-[7]).
The Tribunal identified that the issue before it was whether there was an approved nomination in relation to the first applicant’s visa application and explained the legislative provisions set out in cl 187.233 in Schedule 2 of the Regulations (relating to the nomination requirements) (at [10]-[11]).
The Tribunal confirmed that information had been put to the first applicant in accordance with the requirements set out in s 395AA of the Act – relevantly, that the nomination application made by the sponsor had not been approved and that the sponsor was “unable to offer [the first applicant] a position at [that] time”. The Tribunal confirmed that the first applicant was told that he could discuss the matter with his representative before commenting.
The Tribunal then set out the first applicant’s response, as follows:
16.The applicant said he did not need more time before responding. He said that he was aware that the Junction Pub and Tourist Park was being managed by a new owner. He said he had worked there from July 2018 to August 2021. Customers at that remote location were mainly tourists. The business was badly affected by COVID-19 and the travel restrictions. It was nobody’s fault what happened.
17.The applicant enquired if there was any discretion that the Tribunal could apply such that he and his family could be granted visas, given the circumstances. Unfortunately, there is not.
The Tribunal continued:
18.The review of the decision to refuse the nomination application was not successful. This means there is no approved nomination in relation to the visa application made by the applicant and no position currently available to the applicant by the nominator.
19.The applicant had requested that the Tribunal take evidence from two witnesses as to his character, future work plans, his family and other issues. The Tribunal declined to do so as such evidence would not impact the central issues which are that there is no approved nomination and 2082 Albany Highway Pty Ltd is unable to employ the applicant in the nominated position at this time. The Tribunal notes that the applicant’s file includes many letters of support which attest to his character and abilities.
The Tribunal determined that, in the absence of an approved nomination, cl 187.233 in Schedule 2 of the Regulations had not been met. As such, the Tribunal was unable to make a decision favourable to the first applicant (at [20]-[21]).
The Tribunal noted that there was no evidence before it to suggest that the remaining applicants met the criteria for the grant of the visa in their own rights and determined that, on that basis, the remaining applicants could not be granted the visas (at [23]-[24]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [25]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 6 June 2023) contains three grounds of review, as follows (without alteration):
1.We believe there was a jurisdictional error when the nomination was done which led to cancellation of our visa.
2.We believe the immigration decision was unfare because it was primarily based on the labour market testing not considering the remoteness of the business location (more than 1076kms from Perth) very remote small town.
3.We believe more information could have been requested to enable the Minister make a favourable decision.
On 22 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicants on 6 June 2023, a Court Book numbering 150 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 29 September 2023 and an affidavit of service of Ms Centaine Alexandra Mumford affirmed and filed on 2 October 2023.
On 6 October 2023, the first and second applicant appeared before this Court without legal representation. The first and second applicants initially attempted to connect to that hearing via video link but were unable to do so. They asked if they could appear via telephone/audio link and the Court allowed them to do so. The first applicant spoke on behalf of his wife and family. The Court is satisfied that the first applicant was able to engage with the Court and articulate his concerns without difficulty.
The Court confirmed that the first applicant had received copies of the Court Book and Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard practice of this Court following the decision in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. The Court emphasised that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that, after looking through the Court book, he realised that he “should have sought review of the Minister’s decision”. The first applicant told the Court that by the time the Tribunal was reviewing the matter, the sponsor’s business had closed because of the COVID-19 pandemic. The applicant stressed that when he discussed this with the Tribunal member, she told him that there were, unfortunately, no provisions that allowed her to cater for that situation.
The first applicant also told the Court that “everything started when the nomination was declined” and stressed that he thought that the delegate should have requested more information before the nomination application was refused.
The first applicant’s oral submissions, to the extent that they point to any jurisdictional error, will be considered below.
CONSIDERATION
Grounds of review
As outlined above, the applicants’ grounds of review provide as follows (without alteration):
1.We believe there was a jurisdictional error when the nomination was done which led to cancellation of our visa.
2.We believe the immigration decision was unfare because it was primarily based on the labour market testing not considering the remoteness of the business location (more than 1076kms from Perth) very remote small town.
3.We believe more information could have been requested to enable the Minister make a favourable decision.
As explained above, the first applicant’s oral submissions before this Court echo the concerns raised in the applicants’ judicial review application.
The first applicant’s concerns relate to the decision made by the Minister refusing to approve the sponsor’s nomination application relating to the first applicant.
The first applicant’s core concerns in relation to that decision (being the refusal of the nomination) are that the decision was unfair because it did not consider that the business was located in a remote area (and some distance from Perth city) and that the Minister ought to have requested more information from the sponsor before making the decision.
Unfortunately, the Court cannot assist the applicants in this regard because, as explained by this Court in Mamun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 95, the applicants have no standing to challenge any decision in relation to the nomination application: ss 479(a) and 486C of the Act. In order for this Court to have the power to review the refusal of the sponsor’s nomination application, a separate judicial review application needed to be lodged with this Court by the sponsor. That has not occurred here.
No jurisdictional error arises in relation to the applicants’ grounds of review.
Otherwise
Noting that the applicants are self-represented, the Court will endeavour to remain astute to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In this regard, the Court notes that the first applicant asked the Tribunal to take evidence from two witnesses at the Tribunal hearing and that the Tribunal declined to do so (CB 144, at [19]). The Court will consider whether the Tribunal erred by failing to take evidence from those witnesses.
Section 361 of the Act sets out the circumstances in which an applicant can request that a Tribunal call a witness in relation to his or her matter and relevantly provides as follows:
361 Applicant may request Tribunal to call witness and obtain written material
(1)In the notice under section 360A, the Tribunal shall notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a)written evidence from a person or persons named in the notice; or
(b)other written material relating to the issues arising in relation to the decision under review.
(3)If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4)This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).
Here, the applicants provided the Tribunal with written notice of their witnesses by way of the completed “Response to hearing invitation” form which was returned to the Tribunal on or shortly after 4 April 2023 (CB 128-130). In that form, the applicants included details of two witnesses and explained that the witnesses would provide evidence about the first applicant’s character, work, family and other similar matters (CB 130).
The Tribunal’s obligations (pursuant to s 361(3) of the Act) when considering an applicant’s wishes to call a witness are canvassed by Justice Wigney in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 as follows:
66.The Tribunal’s consideration of the applicant’s wishes must be real and genuine, not just an empty gesture: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38]; AYX17 at [48]. The Tribunal must also not, in determining whether or not to obtain oral evidence from a witness in accordance with the applicant’s wishes, act arbitrarily or capriciously and must take into account matters such as the potential relevance or importance of the proposed evidence and the sufficiency of any written evidence that may have been provided by the prospective witness: Maltsin at [38]…
In AYX 17 v Minister for Immigration and Border Protection (2018) 262 FCR 317, Tracey and Mortimer JJ (as the Chief Justice then was) explained as follows (in relation to relevantly similar provisions in Part 7 of the Act):
48.The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in Maltsin [88 ALD 304] at [38] (Spender J agreeing).
In this matter, the Tribunal did consider why the first applicant wanted the Tribunal to take evidence from the proposed witnesses. Relevantly, the Tribunal explained as follows:
19.The applicant had requested that the Tribunal take evidence from two witnesses as to his character, future work plans, his family and other issues. The Tribunal declined to do so as such evidence would not impact the central issues which are that there is no approved nomination and 2082 Albany Highway Pty Ltd is unable to employ the applicant in the nominated position at this time. The Tribunal notes that the applicant’s file includes many letters of support which attest to his character and abilities.
As set out above, and as identified by the Tribunal, the purpose of the witnesses’ evidence was to provide information to the Tribunal about the first applicant’s “character, future work plans, his family and other issues”.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 524, the sole issue for consideration by the Tribunal in matters of this sort is whether the primary applicant (here, the first applicant) was the subject of an approved nomination as required by cl 187.233 in Schedule 2 of the Regulations. That provision relevantly states:
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(12); and
(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
…
The applicant in this matter was not the subject of an approved nomination.
Clause 187.233 in Schedule 2 of the Regulations did not provide for any discretion on the part of the Tribunal to take into account any “other factors” or any evidence that the proposed witnesses could have provided (in relation to matters like the first applicant’s character or future work plans).
The question for the Tribunal was, simply, whether the first applicant was the subject of an approved nomination. He was not. The proposed witnesses could not have provided any evidence to the Tribunal that would have impacted on the Tribunal’s answer to that question.
No jurisdictional error arises from the Tribunal failing to take evidence from the proposed witnesses.
Futility
As explained by this Court in Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 (“Thakur”) (and other matters relating to Subclass 187 visas), visas of this sort are, effectively, “tied” to the sponsor and the approval of a related nomination application. It is a pre-requisite that the sponsor’s nomination application be successful in order for an applicant’s related visa application to be successful. If the nomination application is unsuccessful, an applicant’s visa application is “doomed to fail”.
In the circumstances of this matter, even if the Court found that there was jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[90]. This is so because the Tribunal would, again, find that the first applicant does not meet cl 187.233 in Schedule 2 of the Regulations. Importantly, the first applicant is not the subject of a valid nomination. Further, there is no evidence before this Court to suggest that the sponsor has sought to challenge the nomination decision in this Court (after the Tribunal, on 30 March 2023, affirmed the decision refusing the nomination application made by the sponsor (CB 82-90)). In this regard, the Court notes that counsel for the Minister also confirmed to the Court (at the hearing of this matter) that the Minister was not aware of any further review application being made to this Court by the sponsor (in relation to the nomination refusal).
As per this Court’s reasoning in Thakur, the decision to refuse the nomination in relation to the first applicant remains a valid and effective decision which, on remittal, the first applicant cannot cure. The first applicant cannot, for example, find a new sponsor or be nominated for a different position. The application is a “once off” process tied to the sponsor’s nomination application which, in this matter, has failed. This means that the applicants will again fail if the matter is remitted to the Tribunal.
Accordingly, any decision by this Court to remit the matter to the Tribunal would be futile.
CONCLUSION
The application for judicial review filed by the applicants on 6 June 2023 has failed to identify any jurisdictional error on the part of the Tribunal. The Court is also unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 October 2023
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