Ozkan v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1066
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ozkan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1066
File number(s): ADG 305 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 21 December 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – refusal of Temporary Business Entry visa – citizen of Turkey – whether denial of procedural fairness – whether failure to take into account relevant considerations – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 140GB, 359A, 360, 474, 476
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 457.223
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
EJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 348
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
Division: Division 2 General Federal Law Registry: Perth Number of paragraphs: 32 Date of last submission/s: 10 November 2022 Date of hearing: 10 November 2022 Place: Perth Applicant: In person via CISCO Webex Counsel for the First Respondent: Ms B Rayment via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 305 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERDAL OZKAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
21 DECEMBER 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 originating application filed 22 August 2019 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 LUCEV
Introduction
Before the Court is an application pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) filed on 22 August 2019 in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) by the applicant, Mr Erdal Ozkan (“Mr Ozkan”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant Mr Ozkan a Temporary Business Entry (Class UC) Subclass 457 visa (“TBE Visa”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 65-66. An affidavit filed by Mr Ozkan on 22 August 2019 appending the Tribunal Decision (“Ozkan Affidavit”) was tendered and read into evidence, subject to relevance. Insofar as the Ozkan Affidavit comprised submissions rather than evidence the Court has had regard to those submissions: see [9] below.
Background
The relevant background to the matter is as follows:
(a)Mr Ozkan is a citizen of Turkey who applied for the TBE Visa on 23 November 2016: CB 1-11;
(b)in the TBE Visa application Mr Ozkan nominated his sponsoring employer as “Love In Istanbul Pty Ltd” (“Sponsor”): CB 7. The Sponsor operated the business that Mr Ozkan runs: CB 15-60;
(c)on 8 December 2017 the Delegate’s Decision was to refuse the Sponsor’s nomination application (“Nomination”): CB 35;
(d)also on 8 December 2017 the Delegate notified Mr Ozkan that the Nomination had been refused and invited Mr Ozkan to comment on or withdraw the TBE Visa application (“Invitation”): CB 27;
(e)Mr Ozkan did not respond to the Invitation: CB 36;
(f)on 26 April 2018 the Delegate’s Decision was to refuse to grant Mr Ozkan the TBE Visa on the basis that he did not meet cl 457.223 of Sch 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) because Mr Ozkan was not the subject of an approved nomination, the Nomination having been refused on 8 December 2017: CB 36;
(g)on 11 May 2018 Mr Ozkan applied to the Tribunal for review of the Delegate’s Decision: CB 38;
(h)on 27 March 2019 the Tribunal invited Mr Ozkan and the Sponsor to a combined Tribunal hearing (“Tribunal Hearing”) on 13 May 2019: CB 45-47, the Sponsor seemingly having applied separately to the Tribunal for review of the Delegate’s Decision: CB 50;
(i)on 22 April 2019 Mr Ozkan confirmed that he would attend the Tribunal Hearing: CB 49;
(j)on 13 May 2019 Mr Ozkan attended the Tribunal Hearing in relation to the TBE Visa application and also on behalf of the Sponsor in relation to the Sponsor’s application: CB 50-51;
(k)on 17 June 2019 the Tribunal affirmed the Delegate’s Decision to refuse the Sponsor’s Nomination: CB 57;
(l)pursuant to s 359A of the Migration Act on 19 June 2019 the Tribunal invited Mr Ozkan to comment on or respond to information that might have been the reason, or part of the reason, for the Tribunal affirming the Delegate’s Decision to refuse the Sponsor’s Nomination (“Further Invitation”): CB 57-58. The Further Invitation noted that a requirement for the grant of the TBE Visa was that Mr Ozkan must have an approved nomination: CB 57, and the Further Invitation also outlined that Mr Ozkan was to provide a response in writing or request an extension of time by 3 July 2019: CB 57;
(m)on 1 July 2019 Mr Ozkan wrote to the Tribunal to request an extension of time (“Extension of Time Application”) to 15 August 2019 to provide his response to the Further Invitation: CB 59-60;
(n)Mr Ozkan requested an extension of time to 15 August 2019, and provided detailed reasons for doing so: see CB 60, as follows:
•I am currently in Turkey, on a combined holiday/family and business trip. These trips, usually undertaken by me at this time of year when my retail business is slower, to select and purchase new stock for the Christmas season, are an integral part of the running of my business.
•I have not been satisfied with the advice and information given to me by the agent I employed. I am busy running my business, and as English is my second language I relied on them to relay the relevant details about recent visa changes, options available, check deadlines and advise me appropriately. I am disappointed in their performance and no longer utilize their services.
•I have two connected matters/files in progress with the Dept. of Home Affairs. As mentioned above, English, especially formal, legal and subject specific language can be difficult for me and I am confused as to what exactly my current position is in these matters. I represented myself at the AAT video interview on 13 May 2019 and in hindsight I realise there were a number of questions and comments that I did not fully understand. When I return to Adelaide I will need time to seek further advice.
•I currently hold a bridging visa, with a return date to Australia by 18 August and plan to be back in Adelaide in the first week of August. The 3 July deadline is too soon for me to prepare the documents and provide further information.
(o)the Tribunal granted Mr Ozkan an extension of time, but only to 18 July 2019: CB 62;
(p)Mr Ozkan did not provide any comment on or response to the Further Invitation on, before or after 18 July 2019: CB 66 at [3]; and
(q)on 21 July 2019 the Tribunal affirmed the Delegate’s Decision: CB 65-66.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out the background to the application for review to the Tribunal: CB 66 at [1];
(b)noted at CB 66 at [2] that:
(i)the date of the TBE Visa application was 23 November 2016; and
(ii)the reasons for the Delegate’s Decision, being that:
(A)Mr Ozkan was not the subject of an approved nomination and did not therefore satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations; and
(B)was not a member of a family unit of a person who already holds a subclass 457 visa, having satisfied the primary criteria;
(iii)set out the history of the matter, and referred to its earlier decision not to approve the Nomination following the combined hearing on 13 May 2019;
(iv)it had made the Further Invitation to Mr Ozkan for him to comment on or respond to information under s 359A of the Migration Act, and that this information was that the Nomination had been refused and that the Nomination refusal would be the reason or part of the reason for affirming the Delegate’s Decision: CB 66 at [3];
(v)following a request made on 1 July 2019 the Tribunal had granted the Extension of Time Application to 18 July 2019;
(vi)despite granting the Extension of Time Application no response to the Further Invitation had been received by the Tribunal: CB 66 at [3];
(vii)on the basis of the material before it the Tribunal was satisfied that Mr Ozkan was not the subject of an approved nomination; and
(viii)affirmed the Delegate’s Decision to refuse the TBE Visa: CB 6 at [4].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court on 22 August 2019. Given the delay of more than three years in the matter coming to hearing it is appropriate to set out the further litigation history of the matter, which is as follows:
(a)on 10 October 2019 a Registrar of this Court in Chambers in the Adelaide Registry made consent orders programming the matter and ordering that the matter be listed for a final hearing on a date to be advised;
(b)in May 2022 the matter was docketed to the presiding Judge in the Perth Registry of the Court;
(c)on 18 May 2022 the parties were notified of a directions hearing listed for 24 May 2022 before the presiding Judge;
(d)on 24 May 2022 the parties attended a directions hearing where orders (“May 2022 Orders”) were made that:
(i)Mr Ozkan file and serve any amended Judicial Review Application, further affidavits and an outline of submissions by 27 September 2022;
(ii)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)the matter be listed for a final hearing by video link on 10 November 2022 at 9.00am AWST/11.30am ACDT before Judge Lucev,
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) if Mr Ozkan did not appear at the final hearing;
(e)a copy of the May 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 10 November 2022, were emailed to the parties later on 24 November 2022;
(f)Mr Ozkan filed no submissions or documents pursuant to the May 2022 Orders; and
(g)on 6 October 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
There are two grounds in the Judicial Review Application as follows:
1.The Tribunal breached procedural fairness obligations.
2.The Tribunal failed to take into account relevant considerations.
Mr Ozkan’s submissions
Mr Ozkan did not file written submissions in support of the Judicial Review Application: see [5(f)] above.
At hearing Mr Ozkan chose to make no oral submissions.
The Ozkan Affidavit substantively comprises two paragraphs which are effectively submissions, and which the Court will consider as such, and which are as follows (unaltered):
1.Tribunal breached procedural fairness obligations
On 13/05/19 I appeared before the AAT (place of decision Darwin) by video link, where a review of the Minister’s decision (27/03/18) had been applied for by the Migration Agent I was using at the time. I made it clear that I had already organised a combined a holiday/business trip to Turkey from June to August, and would appreciate decision, one way or the other, as promptly as possible, so that I could make firm decisions about my business and continued stay in Australia. I received the decision from the Tribunal (made on 17/06/19) in Turkey by email from my agent on 24/06/2019 with a due date for providing further information to the Tribunal by 03/07/19. As this was impossible for me to organise at a distance a friend helped me to request an extension which was granted, but only for 2 weeks. I have not been able to meet that deadline, and hence the original decision was affirmed.
2.The Tribunal and Dept of Home Affairs (in the original decision) failed to take into account relevant considerations
There were two connected files (Case No. 1810373 and 1813701) to consider in the review of my visas (Temporary Business Entry (Class UC) visa and Nomination 457 visa. At the video interview (where I was unrepresented, by choice, but not realising how this could compromise my understanding and my case) both were discussed. In 2017, when my 18 month Sponsored 457-Retail Buyer visa was no longer valid, having been removed from the Skills list (and despite being close to achieving Permanent Residency) I reapplied for the same visa again (20/12/17) when it was back on the list a few months later. As far as I understood, the position of Retail Buyer, being sponsored by my business, was the same as previously. However, the Dept of Home Affairs refused this application on the basis of not exactly fitting the criteria for a Retail Buyer. This was affirmed by the Tribunal. The definitions of Retail Buyer (639211) seemed to be accepted by the Tribunal as applying to me, in all instances except one. I have conducted a registered business in Adelaide since 2013, complying with all Australian requirements, and had supplied all relevant documentation to the Dept. when the previous visas were granted. The application for both visas, and the review of both at the same time, was extremely confusing and did not take into account all factors surrounding my situation.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
Minister’s submissions
The Minister submitted that:
(a)there was no denial of procedural fairness in only granting Mr Ozkan a two-week extension of time to file a response to the Further Invitation;
(b)there was no merit to ground one because where the two-week extension of time was communicated to Mr Ozkan, and he did not respond by requesting a longer extension of time it is to be inferred that no procedural fairness is revealed;
(c)ground two simply seeks to explain why the Nomination was refused and in so doing, seeks the Court to engage in impermissible merits review of the Tribunal Decision;
(d)the relief Mr Ozkan seeks is that the Tribunal Decision be quashed and, presumably, that the matter be remitted to the Tribunal for redetermination, but Mr Ozkan would still be required to satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations which he will never be able to satisfy because visa subclass 457 is now abolished and because he does not have an approved Sponsor;
(e)Mr Ozkan failed to demonstrate judicial error in the Tribunal Decision; and
(f)because Mr Ozkan’s Judicial Review Application does not demonstrate any jurisdictional error in the Tribunal Decision the Judicial Review Application should be dismissed.
Consideration - ground 1
Ground 1 asserts a denial of procedural fairness because the Tribunal only granted Mr Ozkan a two-week extension of time to respond to the Further Invitation in circumstances where Mr Ozkan had informed the Tribunal that he would be overseas until August 2019, and of the other matters set out at [9] above.
The Minister argues that in circumstances where the two-week extension was communicated to Mr Ozkan on 1 July 2019 and he did not respond to the Tribunal’s correspondence by requesting a longer extension, it must be inferred that Mr Ozkan was content with the extension, and no procedural unfairness is therefore revealed.
The Tribunal was required to invite Mr Ozkan to appear before it to give evidence and present arguments relating to the issues arising on the Tribunal’s review of the Delegate’s Decision: Migration Act, s 360(1); SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal afforded Mr Ozkan a fair and meaningful opportunity to be heard pursuant to s 360(1) of the Migration Act, as well as an opportunity to comment on a dispositive issue by issuing the Further Invitation. Mr Ozkan did not avail himself of the opportunity afforded to him by reason of the Further Invitation, and nor did he seek to further extend time to comply with the Further Invitation. It was not for the Tribunal to make sure that Mr Ozkan made the best use of the opportunity which was afforded to him: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 (“Sullivan”); EJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 348 at [102] per Judge Lucev. In the above circumstances Mr Ozkan was not denied procedural fairness by the Tribunal.
A further question requires consideration, and that is whether it was unreasonable, in a legal sense, for the Tribunal to impose a two week deadline, extended to a month on application for an extension of time by Mr Ozkan, to respond to the Further Invitation?
In certain circumstances legal unreasonableness, may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ it was observed that:
The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per Allsop CJ; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The Further Invitation issued following the Tribunal Hearing and the Tribunal decision to affirm the Delegate’s Decision to refuse the Sponsor’s Nomination. The information on which comment was sought in the Further Invitation at CB 57 was very limited in scope, being:
The application for approval of the nominated position made by Love in Istanbul Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
The Tribunal observed at CB 57 that the information on which comment was sought in the Further Invitation:
… is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
It is pertinent to observe that, notwithstanding Mr Ozkan was in Turkey on holiday and that he professed to have difficulty with formal and legal English, the application to extend time to respond to the Further Invitation (set out at [3] above) is well composed, logical and written in coherent and serviceable English. With the extension of time to 19 July 2019 Mr Ozkan had a month in which to consider and prepare his response to the Further Invitation.
Given the very limited scope, and simple nature of, the enquiry to be commented upon under the Further Invitation, a month, and indeed a fortnight, was plainly an adequate period of time for Mr Ozkan to respond to the Tribunal, and an appropriate exercise of the Tribunal’s discretion to extend time for the provision of information pursuant to the Further Invitation. In fact there was only ever one possible relevant response from Mr Ozkan, this being that the Sponsor’s Nomination had been refused. In the circumstances the Tribunal’s decision to only extend time to 18 July 2019 was not legally unreasonable.
It follows from the foregoing that ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration - ground 2
Ground 2 asserts that the Tribunal failed to consider relevant considerations, namely “all factors surrounding [his] situation”. Mr Ozkan submits that the process was “extremely confusing for him”. In its terms ground 2 quarrels with why the Nomination was refused and otherwise seeks impermissible merits review of the Tribunal’s decision with respect to the Sponsor’s Nomination application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Why an applicant does not have an approved nomination is of no consequence under cl 457.223 of Sch 2 to the Migration Regulations which makes it clear that an applicant must have an approved nomination to satisfy the relevant visa criteria. Judicial review of the Tribunal’s separate Sponsor’s Nomination refusal decision was not sought by the Sponsor. Mr Ozkan does not therefore have standing to challenge the Sponsor’s Nomination refusal decision: Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 at [40] per Judge Kendall. In circumstances where there was no challenge to the Tribunal’s separate Sponsor’s Nomination refusal decision, and therefore no approved nomination for Mr Ozkan under cl 457.223 of Sch 2 to the Migration Regulations, and where those matters were properly considered by the Tribunal in correctly determining that Mr Ozkan did not meet the criteria for the TBE Visa, there was no jurisdictional error in the Tribunal affirming the Delegate’s Decision to refuse Mr Ozkan the TBE Visa.
It follows from the foregoing that ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
The Court is cognisant that Mr Ozkan was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error otherwise in the Tribunal Decision.
Materiality and futility
By way of relief it would appear that Mr Ozkan seeks orders that the Tribunal Decision be quashed and that the matter be remitted to the Tribunal for re-determination.
If the matter were to be remitted to the Tribunal for re-determination Mr Ozkan would still be required to satisfy cl 457.223(4)(a) of Sch 2 to the Migration Regulations as at the date of any further Tribunal decision. Mr Ozkan cannot satisfy that mandatory visa criteria because:
(a)it was a requirement for the grant of the TBE Visa (a subclass 457 visa) that the Nomination had been approved under s 140GB of the Migration Act, and that that Nomination had not ceased: Migration Regulations, Sch 2, cl 457.223(4)(a). Mr Ozkan can no longer be sponsored for the grant of the TBE Visa because the Delegate’s Decision was to refuse the Sponsor’s Nomination application, and that refusal was affirmed by the Tribunal, and was not one in respect of which the Sponsor sought judicial review by the Tribunal. If the matter was remitted to the Tribunal it would therefore be bound to affirm the Delegate’s Decision because Mr Ozkan cannot fulfil the criteria in cl 457.223(4)(a) of Sch 2 to the Migration Regulations; and
(b)on 18 March 2018 the Migration Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), that amendment removing subclass 457 from the class of skilled visas, and thereby having the effect that an employer can no longer seek approval of a nomination to sponsor a prospective subclass 457 visa holder.
For an error to be jurisdictional the error must be material in the sense that there is a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [1] per Kiefel CJ, Keane and Gleeson JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] and [85] per Kiefel CJ, Gageler, Keane and Gleeson JJ. For reasons set out at [23] and [27] above, even if Mr Ozkan was able to demonstrate jurisdictional error in the Tribunal Decision (which in the Court’s view he cannot), any such error could not be material because there is not a realistic possibility of a different outcome if the matter were to be remitted to the Tribunal.
It would therefore be futile for the Court to grant relief because the only outcome open to the Tribunal on remittal would therefore be to again affirm the Delegate’s Decision, and relief by way of remittal would therefore lack utility as no useful alternative result could ensue: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278, CLR at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ.
Conclusion and Orders
The Court has concluded Mr Ozkan has not made out any of the grounds of the Judicial Review Application, but that even if there was an error in the Tribunal Decision (which there was not) it was not material and the Tribunal Decision is therefore not affected by jurisdictional error. Further, even if there was jurisdictional error in the Tribunal Decision (which there was not), relief would be futile. It follows that there will be an order dismissing the Judicial Review Application filed on 22 August 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 21 December 2022
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