Panchal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 25
•18 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panchal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 25
File number: MLG 1936 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 18 January 2024 Catchwords: MIGRATION – Employer Nomination (Subclass 186) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicants’ “compelling circumstances” – whether the conduct of the applicants’ migration agent amounted to a fraud on the Tribunal – whether the Tribunal erred by failing to “link” the applicants’ review application with another review application – whether the first applicant was properly notified of the Tribunal hearing – whether the Tribunal failed to afford the applicants procedural fairness – no jurisdictional error – remittal futile in any event – application dismissed. Legislation: Migration Act 1958 (Cth), ss 338, 347, 357A, 359A, 359C, 360, 360A, 362B, 476 and Part 5
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.10
Migration Regulations 1994 (Cth), reg 4.21 and cll 186.233 & 186.311 in Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
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 [2023] FedCFamC2G 243
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
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
Pandya v Minister for Immigration [2020] FCCA 99
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 114 Date of hearing: 10 November 2023 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1936 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PANNABEN KAMLESHKUMAR PANCHAL
First Applicant
RUDRA KAMLESHKUMAR PANCHAL
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 JANUARY 2024
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 are citizens of India (Court Book (“CB”) 1-7). The first applicant is married to Mr Kamleshkumar Prahladbhai Panchal, the primary visa applicant (the “Mr Panchal”). Mr Panchal is not a party to the proceeding before this Court – an issue that will be discussed further below. The first applicant and her husband have two children. The first child is an adult daughter who was initially a party to this proceeding but (for reasons that will be discussed further below) has since been removed as a party. The second child is a (minor) son (the “second applicant”) (CB 5).
On 29 June 2016, Mr Panchal applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa (the “visa”) in the Direct Entry stream (CB 1-23). The first applicant and their children were included in the visa application as members of Mr Panchal’s family unit (CB 3-7). In that visa application, Mr Panchal nominated the position of “ICT Business Analyst” (CB 10). The sponsoring employer in this regard was AVP Solutions Pty Ltd (the “sponsor”) (CB 51). Mr Panchal appointed a migration agent to assist with the visa application (the “representative”) (CB 9).
On 1 February 2017, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application (CB 51 & 62).
Later that same day (also on 1 February 2017), Mr Panchal was notified by the then Department of Immigration and Border Protection (the “Department”) (via email and through his representative) that his sponsor’s nomination application had been refused. He was invited to “comment on or withdraw” his visa application. He was also advised that, if he did not withdraw his application or provide a response to the invitation to comment within 28 days, his visa application would be refused (CB 51-54).
No response was provided by or on behalf of Mr Panchal.
The sponsor sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”).
On 17 March 2017, a delegate of the Minister refused to grant Mr Panchal and his family the visas (CB 61-66). The delegate was not satisfied that Mr Panchal met cl 186.223(3) in Schedule 2 of the Migration Regulations 1994 (the “Regulations”) because he was not the subject of an approved nomination (CB 62). As such, the first applicant and their children failed to satisfy cl 186.311 in Schedule 2 of the Regulations (CB 63-66).
On 6 April 2017, the first applicant sought review of the delegate’s decision in relation to the visa application at the Tribunal on behalf of herself and her two children (CB 67-69). Mr Panchal was not included in the review application and was not a party to the Tribunal proceeding (this will be addressed further below). In that review application, the first applicant requested that all correspondence be sent to her directly (as the “review applicant”) in the matter (CB 68). She provided the Tribunal with email and postal addresses to do so (CB 68-69).
On 8 March 2019, the first applicant and her children were invited (via a letter sent by email) to attend a hearing before the Tribunal to give evidence and present arguments (CB 76-78).
On 2 April 2019, the first applicant was notified (via a letter sent by email) that the Tribunal hearing had been rescheduled and would instead take place on 7 May 2019 because a request for postponement of the hearing of the “related case” had been granted by the Member (CB 79-81).
On 7 May 2019, neither the applicants nor the sponsor attended the scheduled hearing and, as a result, the hearing was “cancelled” on the Member’s instructions (CB 83-88).
On 7 May 2019, the application for review of the sponsor’s decision was withdrawn (CB 99).
On 13 May 2019, the Tribunal wrote to the first applicant pursuant to s 359A of the Migration Act 1958 (Cth) (the “Act”) and invited her to comment on that information (being that on 1 February 2017, the delegate had refused to grant the sponsor the visa and that on 7 May 2019, an application for review of that decision by the Tribunal was withdrawn) (CB 89-91). The first applicant was asked to provide a response (or seek an extension of time within which to do so) by 27 May 2019 (CB 91).
On 23 May 2019, Mr Panchal’s representative wrote to the Tribunal (via email) as follows (without alteration) (CB 92):
I am writing this email regarding aforementioned AAT Case.
Actually [Mr Panchal] lodged another AAT Review Application (Nomination (Case Number: 1906382) & Visa (Case Number: 1909048)) under another employer.
I would like to ask you to link Case Number 1707415 with Case Number: 1906382 and Case Number: 1909048.
If you need more information, please feel free to contact me at undersigned.
Look forward to an early and prompt revertal at the soonest. Thank you.
On 24 May 2019, Mr Panchal also wrote to the Tribunal (via email), stating (without alteration) (CB 93):
I am writing this email regarding aforementioned AAT Case.
I am undersigned, [Mr Panchal] lodged another AAT Review Application (Nomination (Case Number: 1906382) & Visa (Case Number: 1909048)) under another employer.
I would like to ask you to link Case Number 1707415 with Case Number: 1906382 and Case Number: 1909048.
If you need more information, please feel free to contact me at undersigned or below an authorized person.
Later that day (also on 24 May 2019), the Tribunal replied to the representative (via email) as follows (CB 94):
Thank you for your email. ln. order for me to be able to discuss specific matters in relation to those matters with you, you must be appointed as an authorised party. Consequently, as you are not an authorised party to 1707415, I am unable to provide you with specific information in relation to those matters. As a general procedure however, cases will be linked in the event that the nominator and the visa applicant are the same parties.
Please do not hesitate to contact me should have any further concerns.
On 27 May 2019, Mr Panchal again wrote to the Tribunal (via email) stating as follows (without alteration) (CB 95):
I am writing this email regarding aforementioned AAT Case.
I am undersigned, [Mr Panchal] lodged another AAT Review Application (Nomination (Case Number: 1906382) & Visa (Case Number: 1909048)) under another employer.
I would like to ask you to link Case Number 1707415 with Case Number: 1906382 and Case Number: 1909048.
If you need more information, please feel free to contact me at undersigned.
Look forward to an early and prompt revertal at the soonest. Thank you.
No response was provided to the Tribunal by or on behalf of the first applicant.
On 29 May 2019, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 98-101). The Tribunal determined that as Mr Panchal was not the subject of an approved nomination, he could not be granted the visa (CB 100). That, in turn, meant that the first applicant and their children were also not eligible for the visa (CB 100-101). The first applicant was notified of the Tribunal’s decision by letter dated 30 May 2019 (sent to the first applicant via email) (CB 96-97).
On 3 June 2019, Mr Panchal wrote to the Tribunal (via email) requesting that the Tribunal review his case as “top priority” (CB 102).
On 4 June 2019, the Tribunal notified Mr Panchal (via email) that a decision had been made and the case had been finalised on 30 May 2019 (CB 103).
On 20 June 2016, the first applicant applied to this Court for judicial review of the Tribunal’s decision. That application included her children and is brought pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is four pages long and spans 20 paragraphs (CB 98-101).
The Tribunal began by identifying that Mr Panchal had applied for the visa on 29 June 2016 and that a delegate of the Minister refused to grant the applicants the visas on 17 March 2017 because Mr Panchal was not the subject of an approved nomination. The Tribunal identified that the issue before it was whether Mr Panchal was the subject of an approved nomination (at [1]-[4]).
The Tribunal acknowledged that the sponsor’s nomination application had been refused by the Department on 1 February 2017 and that the sponsor had sought review of that decision by the Tribunal. The Tribunal noted that an initial Tribunal hearing date was set (on 4 April 2019) but that, after an adjournment request was made (and granted), a new hearing date of 7 April 2019 had been set. The Tribunal explained that the applicants were notified of the new hearing date on 2 April 2019 but did not attend the Tribunal hearing (at [5]-[8]).
The Tribunal explained that it had written to the applicants on 13 May 2019 pursuant to s 359A of the Act and placed the following information before them, as follows (at [9]):
Information before the Tribunal indicates that you do not have an approved business nomination. The application for approval of a business nomination made by AVP Solutions Pty Ltd was refused by the Department of Immigration and Border Protection on 1 February 2017. An application for review of that decision by the Tribunal was withdrawn on 7 May 2019.
The Tribunal also noted that the Tribunal’s invitation letter provided the applicants with information that, if relied upon, would be the reason (or part thereof) for affirming the delegate’s decision. The Tribunal noted further that the applicants had been asked to provide information or comments (in writing) by 27 May 2019 and were notified that if they did not do so they would lose any entitlement to appear before the Tribunal to give evidence (at [10]-[11]).
The Tribunal then outlined the correspondence received from Mr Panchal and his representative requesting the “linking” of their cases. The Tribunal explained that Mr Panchal had not provided the “basis for the ability of the Tribunal to link cases” in this instance or any information indicating that he was identified in any approved nomination. The Tribunal determined that there was no basis upon which it could link this matter to any other case and found that it did not have jurisdiction to do so (at [12]-[17]).
The Tribunal ultimately found that Mr Panchal had not met cl 186.233(3) in Schedule 2 of the Regulations and, as such, the first applicant and her children did not satisfy cl 186.311 in Schedule 2 of the Regulations. The Tribunal affirmed the decision refusing to grant the applicants the visas (at [18]-[20]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 20 June 2019) contains ten grounds of review as follows (transcribed verbatim):
1.We applied for a visa under Employer Nomination (permanent) SUBCLASS 186 on 29th June 2016 s.65 of the Migration Act 1958. However. the delegate of the Minister of Home Affairs refused the visa application on 17th March 2017 as it did not satisfy cl.186.233 of Schedule 2 of the Migration Regulations 1994.
2.We then made and appeal to the Administrative Appeals Tribunal (AAT) to consider the visa application and substitute the decision in our favour.
3.The Tribunal member requested for more information regarding the nomination application. Because of compelling and compassionate circumstances we were unable to provide these documents.
4. We requested the Tribunal member to adjourn the hearing to a later date.
5.It is also noteworthy that we had applied for another AAT review application for nomination and visa and requested the Tribunal member to link this case with the former application.
6.The Tribunal member did not accept this appeal and considered that we did not have an approved nomination. The Tribunal member also did not accept the appeal from my migration agent and concluded that he was not an authorised person to make the request.
7.All the previous documents submitted were in support of the claim that the nominated role is of utmost importance. However, the Tribunal affirmed the decision of the delegate to refuse the visa application on 29th May, 2019 stating that the reason for refusal is that there should be an approved nomination.
8.The Tribunal member failed to take into account my compelling circumstances which were beyond my control and made a decision considering my circumstances and have not provided me a fair chance to present my case.
9.I strongly believe that the tribunal member fell into Jurisdictional Error by ignoring the relevant facts and information, and made a judgement based on assumptions rather than facts provided in the review response.
10.I believe that a jurisdictional error has been made while making a decision on my visa application and I seek judicial review of the application. I request honourable court to review my case to provide me justice.
In addition to some background information and a request for relief, the supporting affidavit (affirmed by the first applicant on 19 June 2019) also includes the following additional “ground” (without alteration):
2.I strongly believe that both DHA and the Tribunal have not assessed the visa application fairly as the relevant circumstances and supporting documents around it were not considered…
On 27 January 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. 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 20 June 2019 (the first applicant’s affidavit being taken as read and in evidence at the hearing), a Court Book numbering 103 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 27 October 2023 and the affidavit of service of Christopher Orchard affirmed and filed on 3 November 2023 (also taken as read and in evidence at the hearing).
Procedural matters
Mr Panchal – not a party to the proceeding
At the hearing of this matter (on 10 November 2023), the Court asked the first applicant why her husband was not a party to the Tribunal’s decision (and, as such, the application before this Court). The first applicant explained that her husband was overseas at the time she applied to the Tribunal for review and was not able to be included in the review application. The first applicant further explained that she had remained in Australia with her children as they were still in school at that time and needed to focus on their studies.
Mr Panchal was in Australia at the time he lodged his visa application. Section 338(2) of the Act thus applies.
Where s 338(2) of the Act applies, an application for review must satisfy the requirements set out in s 347 of the Act.
Relevant to this matter are the following sections of the Act:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i)if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii)if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii)if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:
(a)if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b)if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
(c)if the Part 5‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
(d)if the Part 5‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note:Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).
(3)If the Part 5‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
…
The Court is satisfied, based on the oral submissions given on behalf of the Minister at the hearing, that Mr Panchal could not have sought review of the Tribunal’s decision as he was not “physically present in the migration zone when the application for review [was] made”: s 347(3) of the Act.
The Court is also satisfied that the first applicant and her children could make any application for review of the delegate’s decision to the Tribunal because they are “non‑citizen[s] who [are] the subject of that decision”: s 347(2)(a) of the Act.
Removal of the first applicant’s daughter as a party to the proceeding
The Court also queried the visa status of the first applicant’s adult daughter.
The first applicant told the Court that her daughter had, in fact, been granted a permanent residency visa the month prior (in October 2023). Noting that there was nothing before the Court to confirm the grant of any visa in that regard, the Court asked the first applicant to send the Court a copy of the visa grant notice following the hearing. The first applicant did so and the parties ultimately agreed that, because the first applicant’s adult daughter already holds a permanent visa, she should no longer be included as a party to the proceeding. The Court made orders accordingly (by consent) on 16 January 2024.
Appointment of litigation guardian for the second applicant
The Court also noted that the (now) second applicant in the proceeding is still a minor (being born in August 2007). On that basis, the Court explained to the first applicant that, because her son is still a minor, it was appropriate for a litigation guardian to be appointed on his behalf. The first applicant agreed to being appointed the litigation guardian for her son and the Court made orders (pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”)) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
Hearing before this Court
On 10 November 2023, the first applicant and her adult daughter appeared before this Court (via video link). The first applicant spoke on behalf of her family with her daughter offering support and minor assistance. The Court confirmed that the first applicant had received copies of the Court Book and Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave her an opportunity to explain orally what she 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 her 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 (“SZRUI”) 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 told the Court that she did not think that the paperwork had been done correctly – noting, in particular, that she thought that the company profit information for the sponsor did not fulfill the relevant requirements. The first applicant also told the Court that she was alone in Australia with her two children and, on her “agent’s advice”, she applied to the Tribunal for review of the delegate’s decision. The first applicant explained that her daughter was “studying in year 11” and she “did not want to disturb her education by taking her back to India”. She stressed that her “agent” had advised her to apply to this Court for review so she followed that advice but she “felt as though she had not been properly guided” by her agent.
The first applicant also told the Court that she “was not aware of the legal process and what she needed to do”. She explained that she was not aware that she needed to follow up on anything and did not appear at the Tribunal hearing because she “was not aware of the hearing”.
The first applicant’s concerns, to the extent that they amount to any allegation of jurisdictional error on the part of the Tribunal, will be considered by the Court below.
CONSIDERATION
Having considered all of the materials before it (including the applicants’ grounds of review, the information included in the first applicant’s affidavit and her oral submissions to this Court) and noting that the applicants were unrepresented before this Court, the Court has interpreted the first applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicants to raise the following concerns:
(a)whether the Tribunal failed to consider the applicants’ “compelling circumstances”;
(b)whether the conduct of the applicants’ migration agent amounted to fraud on the Tribunal;
(c)whether the Tribunal erred by failing to “link” the applicants’ review application with another review application;
(d)whether the first applicant was properly notified of the Tribunal hearing; and
(e)whether the Tribunal failed to afford the applicants procedural fairness.
Whether the Tribunal failed to consider the applicants’ “compelling circumstances”
Unfortunately, the first applicant did not detail what “compelling circumstances” the Tribunal failed to consider.
There is no evidence before this Court to suggest that the applicants ever raised any “compelling circumstances” before the Department or the Tribunal. The Tribunal cannot be found to have erred on the basis of failing to consider information or an individual’s circumstances if that information was never put to the Tribunal.
The Court also notes that in the circumstances of this matter, the Tribunal was not able to consider any compelling circumstances (whatever those circumstances might have been). The sole issue before the Tribunal was whether Mr Panchal was the subject of an approved nomination as required by cl 186.233(3) in Schedule 2 of the Regulations.
Clause 186.233 in Schedule 2 of the Regulations relevantly provided as follows:
186.233
(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(10); and
(b)in relation to which the declaration mentioned in paragraph 1114B(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.
(4A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6)The application for the visa is made not more than 6 months after the Minister approved the nomination.
As set out above, there is no provision in cl 186.233 in Schedule 2 of the Regulations for the Minister (or the Tribunal) to waive the requirement for an approved nomination. This is the case regardless of whether there were any compelling circumstances or reasons surrounding why a nomination has not been approved.
The Tribunal determined that, on the evidence before it, Mr Panchal was not the subject of an approved nomination (at [18]).
The Tribunal had no discretion to waive the requirements set out in cl 186.233 in Schedule 2 of the Regulations (or those set out in cl 186.311 in Schedule 2 of the Regulations relating to whether the first applicant and her children were members of the family unit of a person who held a Subclass 186 visa) – however compelling the individual circumstances might be: Pandya v Minister for Immigration [2020] FCCA 99 at [26].
No jurisdictional error arises in this regard.
Whether the conduct of the applicants’ migration agent amounted to a fraud on the Tribunal
As set out above, the first applicant raised concerns before this Court about the conduct of her “agent”.
The Court notes that Mr Panchal appointed a migration agent to assist him with the visa application lodged with the Department on 29 June 2016 (CB 9).
However, that representative was not appointed by the first applicant in relation to the Tribunal review or processes. In fact, in her review application made to the Tribunal on 6 April 2017, the first applicant requested that correspondence in relation to the review application be sent to her directly (as the review applicant) (CB 68). She also provided the Tribunal with both email and postal addresses for the Tribunal to do so (CB 68-69).
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
In circumstances where the first applicant did not appoint the representative to assist her with the Tribunal review, it cannot be said that the representative’s conduct amounted to a “fraud” on the Tribunal.
The Court acknowledges that Mr Panchal’s representative did contact the Tribunal on 23 May 2019 to ask that the first applicant’s Tribunal review be “linked” to other cases relating to Mr Panchal (CB 92). This issue will be discussed further below.
The Court notes, however, that that representative was not on the Tribunal’s record as acting for the first applicant. The Tribunal notified the representative (on 24 May 2019) that he “must be appointed as an authorised party” in relation to the first applicant’s review application in order for the Tribunal to discuss the matter with him (CB 94).
There is no evidence before the Court to suggest that the representative (or the first applicant) ever provided the Tribunal with any notification that the representative was acting in relation to the first applicant’s Tribunal review.
To the extent that the first applicant has concerns about the assistance given in relation to the preparation of paperwork relating to the visa or nomination applications, the Court is unable to assist. Further, the Court considers that the concerns raised by the first applicant in that regard would, at their highest, amount to negligence, incompetence or bad advice (though the Court makes no findings about the representative in this regard).
In that regard, the first applicant may wish to consider raising her concerns with the appropriate regulatory authority (being the Office of the Migration Agents Registration Authority).
No jurisdictional error arises in this regard.
Whether the Tribunal erred by failing to “link” the applicants’ review application with another review application
The first applicant’s concerns in this regard are not clear.
Based on the information before this Court, it appears that Mr Panchal (or his representative) lodged other Tribunal review applications in relation to visa and nomination applications “under another employer” or sponsoring company (CB 92).
As outlined above, Mr Panchal and his representative contacted the Tribunal on multiple occasions requesting that the Tribunal “link” the review application relating to the first applicant and her children with Mr Panchal’s new Tribunal review applications relating to that other employer or sponsor.
The difficulty with that request is that the visa application in this matter was effectively tied to the nomination application made by the sponsor and referenced in the visa application (in this case, the nomination application made by AVP Solutions Pty Ltd, the sponsor in this matter).
The Court references the comments of Justice Mortimer (as the now Chief Justice then was) in this regard in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (“Singh”) (and affirmed in Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 (“Begum”) at [22]), as follows (emphasis added):
88.In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
As outlined above, the effect of Singh is that Mr Panchal’s visa application was tied to the sponsor’s nomination application and that nomination application could not be substituted by another nomination application from a different sponsoring employer.
That being the case, there would have been no utility in the Tribunal linking the first applicant’s review application with any review applications related to a new nomination or visa application made by Mr Panchal with another employer.
The Tribunal expressly considered the (multiple) requests to “link” the matter in its written reasons (at [12]-[16]) and ultimately determined as follows (emphasis added):
17.The applicants letter repeats the words of the migration agent. Again, there is not any evidence of the applicant having a nomination approval. There is not any basis upon which this Tribunal can link this matter to any other case. The Tribunal finds that it does not have jurisdiction to undertake such a procedure.
The Court is satisfied that the Tribunal was correct to proceed in the way that it did (without “linking” the first applicant’s review application with any other new review matters relating to Mr Panchal’s “other employer”).
No jurisdictional error arises in this regard.
Whether the first applicant was properly notified of the Tribunal hearing
In oral submissions before this Court, the first applicant claimed that she did not attend the Tribunal hearing because she “was not aware of the hearing”.
The Tribunal is required to invite an applicant (or applicants) to appear before it to give evidence and present arguments relating to the issues arising from the decision under the review: s 360(1) of the Act; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”).
The Court is satisfied that the Tribunal complied with those requirements in this matter.
On 8 March 2019, the Tribunal invited the first applicant (and her children) to appear at a hearing before it on 4 April 2017 (CB 76-78). That hearing invitation was sent to the first applicant via email using the email address provided in her review application (CB 68-69).
The Tribunal notes that an adjournment request was made (and granted by the Tribunal) (at [6] in its written reasons).
The first applicant confirms this at “ground four” in her judicial review application filed in this Court (which states that they had “requested the Tribunal member … adjourn the hearing to a later date”).
On 2 April 2019, the Tribunal notified the first applicant of the rescheduled hearing date (CB 79-81). That letter was sent to the first applicant via email using the email address provided by her in her Tribunal review application (CB 68-69 & 79-80).
When giving an applicant notice of a hearing, the Tribunal is required to comply with s 360A of the Act. The Court is satisfied that the Tribunal did so in this matter. In particular, the Court notes that:
(a)the letter informed the first applicant that the hearing would now take place on 7 May 2019 at 10.00am (QLD time) at the offices of the Tribunal in Brisbane (CB 80): s 360A(1) of the Act;
(b)the notification was sent to the first applicant by email sent to the last email address provided to the Tribunal by her in relation to her review application (CB 79-80): s 360A(2)(a) of the Act;
(c)was sent to the first applicant on 2 April 2019, more than 14 days before the date of the hearing (14 days being the minimum prescribed period): s 360A(4) of the Act and reg 4.21(4) of the Regulations; and
(d)the letter contained a statement explaining the effect of s 362B of the Act (CB 81): s 360A(5) of the Act. The relevant paragraphs in the letter stated that:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The first applicant did not attend that hearing.
The Court is satisfied that the first applicant was properly notified of the rescheduled hearing as required by s 360A of the Act.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicants procedural fairness
To the extent that the first applicant suggests that the Tribunal acted unfairly in not allowing her to appear at a hearing before it or was not able to properly present her case, the Court disagrees.
As outlined above, the first applicant failed to appear at the rescheduled hearing in this matter. In circumstances where an applicant fails appear at a Tribunal hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it”: s 362B(1A)(a) of the Act.
The Court notes, however, that after the first applicant failed to attend the hearing, the Tribunal then “invited her to comment on or respond to information” pursuant to s 359A of the Act (CB 89-91). That invitation letter relevantly stated as follows (CB 90-91):
•Information before the Tribunal indicates that you do not have an approved business nomination. The application for approval of a business nomination made by AVP Solutions Pty. ltd. was refused by the Department of Immigration and Border Protection on 1 February 2017. An application for review of that decision by the Tribunal was withdrawn on 7 May 2019.
This information is relevant to affirming the decision under review, as it indicates that you do not meet the requirements of cl. 186.233(3) of schedule 2 to the Migration Regulations 1994. Clause 186.233(3) requires that there is an approved nomination of an occupation in relation to you by a standard business sponsor which has not ceased.
If you are not the subject of an approved nomination by an approved standard business sponsor at the time of the Tribunal's decision, the Tribunal may find you do not meet cl. 186.233(3). If the Tribunal finds that you do not meet the subclauses in 186.233, the Tribunal must affirm that decision to not grant you an Employer Nomination (Permanent) (Class EN) visa.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 27 May 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 27 May 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 27 May 2019 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The first applicant did not provide any response to that invitation.
As set out in detail above, Mr Panchal and his representative both asked the Tribunal to “link” the first applicant’s review application with Mr Panchal’s Tribunal review cases relating to a nomination and visa application with “another employer”. There is no mention in the responses from either Mr Panchal or his representative to suggest that the requests were sent in response to the s 359A invitation letter sent by the Tribunal to the first applicant. Further, neither Mr Panchal, nor his representative, were authorised representatives of the first applicant in relation to her Tribunal review application.
In circumstances where an applicant is invited to comment on or respond to information pursuant to s 359A of the Act but fails to do so, the Tribunal “may make a decision on the review without taking any further action to obtain the applicant’s views on the information”: s 359C(2)(b) of the Act.
The Court is not satisfied that the correspondence from Mr Panchal and his representative amount to a “response” to the s 359A invitation letter. As outlined above, Mr Panchal was not a party to the Tribunal review relating to the first applicant and their children. Further, the first applicant did not appoint the representative (or any agent) to assist her with the review application.
On the basis of the first applicant’s failure to respond to the s 359A invitation letter, she “lost” any entitlement she might have otherwise had to appear before the Tribunal and the Tribunal was entitled to make a decision in relation to her review application without taking any further action: s 359C(2)(b) of the Act.
In circumstances where the first applicant did not appear at the rescheduled Tribunal hearing and did not respond to the Tribunal’s s 359A letter, the Court is satisfied that the Tribunal could have proceeded to make a decision (as it did here) without taking any further steps to either allow the first applicant to attend a hearing or to obtain any further information from her.
The Tribunal’s approach and reasoning in relation to why it proceeded as it did is arguably unclear. Having said that, the Court is nonetheless satisfied that Tribunal afforded the first applicant procedural fairness.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes that:
(a)the Tribunal exercised its power under s 359A of the Act to invite the first applicant to comment on or respond to information (CB 89-91). The first applicant did not respond to that invitation;
(b)the Tribunal invited the first applicant to attend a hearing before it (CB 76-78);
(c)a request was made to the Tribunal to adjourn that hearing date and the Tribunal granted that request (CB 99 at [7]);
(d)the Tribunal notified the first applicant of the rescheduled hearing and the first applicant failed to appear at the rescheduled hearing (CB 99 at [8]);
(e)the dispositive issue before the Tribunal (being whether Mr Panchal was the subject of an approved nomination as required by cl 186.233(3) in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL arises in this matter and the Tribunal complied with s 360 of the Act; and
(f)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the first applicant procedural fairness in this matter.
FUTILITY
In the event that the Court is wrong in its assessment above, the Court also considers that remittal of this matter to the Tribunal would be futile in any event.
As set out above, the visa application made by Mr Panchal in this matter is a “once off” process which, effectively, “ties” to the sponsor’s nomination application: Singh and Begum at [22]. The nomination application in this matter was refused by a delegate of the Minister. Whilst the sponsor initially sought review of that decision by the Tribunal, that review application was subsequently withdrawn on 7 May 2019 (CB 99 at [9]).
This means that the applicants will be “doomed to fail” if the matter is remitted to the Tribunal as no approved nomination exists in this matter.
In the circumstances, if the Court were to remit the matter to the Tribunal, the Tribunal would, again, have no choice but to find that Mr Panchal was not the subject of an approved nomination as required by cl 186.233(3) in Schedule 2 of the Regulations. On that basis, the applicants would also fail to satisfy cl 186.311 in Schedule 2 of the Regulations.
Hence, even if the Tribunal had erred, it would be futile to remit the matter to the Tribunal for reconsideration.
CONCLUSION
The application for judicial review and supporting affidavit filed by the first applicant on 20 June 2019 have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 January 2024
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