Pandya v Minister for Immigration
[2020] FCCA 99
•20 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PANDYA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 99 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employment visa – applicant ineligible for the visa as he lacked an approved sponsor – show cause application bound to fail – applicant claiming inability to attend Court due to psychological illness – interlocutory termination of proceedings. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046 |
| First Applicant: | SANDIP DILIPBHAI PANDYA |
| Second Applicant: | KRUTI SANDIP PANDYA |
| Third Applicant: | DIVIT PANDYA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1457 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2020 |
REPRESENTATION
| The Second Applicant appeared by telephone |
| Solicitors for the Respondents: | Ms M Perotti of Sparke Helmore |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court confirms that, for the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), the second applicant is appointed as litigation guardian of the third applicant, and the second applicant is relieved of the obligation of filing an affidavit of consent or of notifying the first respondent of her appointment.
On condition that the applicants file a Notice of Discontinuance no later than 5.00pm on 31 January 2020, the application will be discontinued with no order as to costs.
If no Notice of Discontinuance is filed in accordance with Order 3, the application will be dismissed with effect from 31 January 2020 by virtue of these orders, with the first and second applicant to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1457 of 2019
| SANDIP DILIPBHAI PANDYA |
First Applicant
KRUTI SANDIP PANDYA
Second Applicant
DIVIT PANDYA
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
I have before me an application lodged on 14 June 2019 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 May 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants regional employer nomination permanent visas. There are three applicants, who are a husband (Mr Pandya), his wife (Mrs Pandya), and their infant child, Divit Pandya. The second applicant, Mrs Pandya, was, by consent, appointed the litigation guardian of Divit Pandya, although the order made by a registrar required amendment.
A registrar made procedural orders in this matter by consent on 18 July 2019. Those orders provided the applicants with the opportunity to file further material and listed the matter for a show cause hearing on 20 December 2019. The applicants did not avail themselves of the opportunity to file further material but did correspond with the Court immediately before the hearing on 20 December. The import of that correspondence was that Mr Pandya was in hospital due to a medical emergency. A document from Westmead Hospital confirmed that Mr Pandya had been admitted on 19 December for tests. The Court was successful in contacting Mr Pandya on his mobile telephone number on 20 December. He was at that time in the hospital, and it was not possible to have an extended conversation because, as he said, he was being called for a test. In the circumstances I made orders giving the applicants the opportunity to provide medical evidence of Mr Pandya’s illness, in which case the matter would be adjourned to today.
That medical evidence was provided, and, accordingly, the adjournment order took effect. The matter was adjourned to 2.15pm today. Since then, the applicants have provided further email correspondence to my chambers attaching a medical certificate from Dr Palu Malaowalla of Rosehill Surgery dated 8 January 2020. The doctor states that he has examined Mr Pandya and forms the opinion that he is undergoing extreme anxiety for a period of a month or so with depression. Mr Pandya complains of chest pains, which were investigated when he was admitted to Westmead Hospital on 19 December. He has decreased appetite and is unable to sleep due to constant thoughts in his mind. This is said to have all stemmed from pressures he is going through in his life. He has been advised counselling on a weekly basis. The doctor opines that it would be appropriate to adjourn the court proceedings for at least three months to help Mr Pandya deal with his condition.
An adjournment is opposed by the Minister on several bases but, probably most importantly, on the basis that an adjournment would serve no useful purpose because the application is doomed to fail. Mr Pandya did not attend the Court for today's adjourned hearing. The Court was, however, successful in contacting Mrs Pandya by telephone. She supported the case for an adjournment. I would be sympathetic to the proposition of there being an adjournment if some useful purpose would be served by that adjournment.
However, I agree with the Minister that the application in this case is doomed to fail, and in those circumstances I see no benefit, either to the parties or, indeed, the Court, in prolonging the proceedings.
The Minister's submissions deal with the background to the case, which I adopt.
On 26 June 2017, Mr Pandya applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa.[1] His wife and son applied as members of his family unit.[2] Mr Pandya identified Jeegar Retail Pty Ltd as the sponsoring employer.[3]
[1] Court Book (CB) 1-35
[2] CB 3-4
[3] CB 72
On 10 August 2017, the Minister wrote to Mr Pandya at the email address provided in connection with his application and invited him to comment on information that the sponsor’s nomination application had been refused.[4] No response was received from the applicant.
[4] CB 6; 93-95
On 25 September 2018, the delegate refused to grant the visa on the basis that Mr Pandya was not the subject of an approved nomination, and therefore did not satisfy clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[5]
[5] CB 102-106
On 12 October 2018, the applicants applied to the Tribunal for review of the delegate’s decision.[6] On 12 February 2019, the Tribunal wrote to Mr Pandya at the email address provided in connection with his application for review and requested that he provide evidence to support that he was the subject of an approved nomination, or a pending application for review of a decision to refuse the nomination application by 26 February 2019.[7] No response was received from Mr Pandya.
[6] CB 107-109
[7] CB 109; 115-117
On 18 April 2019, the Tribunal invited Mr Pandya to attend a hearing on 9 May 2019 to give evidence and present arguments.[8] Mr Pandya appeared on that date.[9]
[8] CB 119-122
[9] CB 123-126
On 17 May 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa.[10]
[10] CB 130-133
Tribunal decision
The Tribunal set out the background to the matter.[11] The Tribunal identified that the relevant issue was whether Mr Pandya was the subject of an approved nomination as required by clause 187.233 of the Regulations.[12]
[11] CB 131, [1]-[7]
[12] CB 131, [9]-[10]
The Tribunal recorded that during Mr Pandya’s oral evidence, he did not seem to be aware that the Tribunal sent him an invitation to comment through his migration agent on 12 February 2019. The Tribunal identified that Mr Pandya had explained that his employer found him working at Costco and offered him a position in Hillston. However, he subsequently had healthcare issues and returned to Sydney to work for Costco.[13]
[13] CB 132, [12]
The Tribunal found Mr Pandya was not the subject of an approved nomination as the nomination by Jeegar Retail Pty Ltd was refused by the delegate on 10 August 2018.[14] The Tribunal therefore found Mr Pandya did not meet the requirements of clause 187.233 and accordingly affirmed the decision under review.[15]
[14] CB 132, [13]
[15] CB 132, [15]-[17]
At the show cause hearing on 20 December I did raise with the Minister's solicitors one legal issue of potential importance. That issue was the subject of supplementary submissions filed on 10 January 2020.
As detailed in those submissions, I enquired whether Mr Pandya was entitled to the hearing before the Tribunal which had been afforded him, given the terms of ss.359 and 359C of the Migration Act 1958 (Cth) (Migration Act). I agree with the Minister's submissions concerning that issue.
As outlined at [6]-[7] of the Minister’s submissions, on 12 February 2019, the Tribunal wrote to Mr Pandya at the email address provided in connection with his application for review and requested that he provide evidence to support that he was the subject of an approved nomination, or a pending application for review of a decision to refuse the nomination application by 26 February 2019.[16] No response was received from Mr Pandya. On 18 April 2019, the Tribunal extended to Mr Pandya an invitation to attend a hearing scheduled on 9 May 2019.[17] Mr Pandya appeared on that date.[18]
[16] CB 109; 115-117
[17] CB 119-122
[18] CB 123-126
The Minister accepts that Mr Pandya was not entitled to a hearing and as a result, the Tribunal’s power to invite him to a hearing was not enlivened.[19] However, for the reasons that follow, I accept that the legal error is immaterial, does not go to jurisdiction and that even if it did the Court should exercise its discretion to withhold relief because any remittal to the Tribunal would be futile because the only decision open to the Tribunal was to affirm the delegate’s decision.[20]
[19] sections 360(3) and 363A
[20] SZBYR v Minister for Immigration (2007) 81 ALJR 1190
Mr Pandya’s failure to respond to the Tribunal’s written request for information provided pursuant to s.359 of the Migration Act, meant that he lost entitlement to a hearing pursuant to s.360(2)(c) and (3) of the Migration Act. Accordingly, by combined operation of ss.359C(1), 360(2)(c) and 360(3) of the Migration Act, the Tribunal was precluded from inviting Mr Pandya to attend a hearing. That is, Mr Pandya’s failure to respond to the s.359 request had the effect of attracting the cascading operation of ss.359C(2), 360(2)(c) and 360(3) of the Migration Act, which enlivened s.363A.[21]
[21] Singh v Minister for Immigration [2017] FCAFC 67 at [21] citing Hasran v Minister for Immigration [2010] FCAFC 40 at [25]-[30]
Notwithstanding the error, it does not go to jurisdiction and even if it did, relief should be refused in the exercise of the Court’s discretion on the basis of futility. As this Court has held, it could hardly be said that Mr Pandya was deprived of the possibility of a successful outcome before the Tribunal when only one outcome was possible.[22] The only decision open to the Tribunal was to affirm the delegate’s decision. By its letter sent pursuant to s.359 of the Migration Act, the Tribunal requested information from Mr Pandya to show that he was the subject of an approved nomination and put to him on notice that in the absence of an approved nomination for the position identified in his visa application, Mr Pandya would not meet the requirements for the grant of the visa.
[22] Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046 at [25]
Mr Pandya did not provide any evidence that he was the subject of a nomination. There is otherwise no evidence that Mr Pandya was at any relevant time the subject of an approved nomination for the visa. Because the nomination made by the sponsor in respect of Mr Pandya had not been approved, the only decision the Tribunal could reach was that he did not meet the requirements of clause 187.223 of Schedule 2 to the Regulations). To his benefit, even once Mr Pandya was afforded the opportunity to attend a hearing, he was unable to provide evidence that he was the subject of an approved nomination.[23]
[23] CB 132, [12]
Therefore, even if the Tribunal had proceeded to make a decision on the evidence before it (as opposed to inviting Mr Pandya to attend a hearing and proceeding as it did), the only decision open to it would have been to affirm the delegate’s decision. In these circumstances, any remittal would be futile because the Tribunal would be bound to affirm the delegate’s decision.
In short, Mr Pandya was not entitled to a hearing before the Tribunal, and the Tribunal should not have afforded to him the hearing opportunity that he was granted. That was, of course, an error in his favour. Although the Tribunal made a legal mistake, as stated above, it would be futile to remit the matter to the Tribunal because there was only one decision open to the Tribunal, which was to affirm the decision of the delegate. The simple position was that Mr Pandya could not qualify for the class of visa he sought because he did not have an approved sponsor. That issue is dealt with in the Minister's original submissions in the context of the grounds of review advanced by the applicants.
By an application to show cause filed on 14 June 2019, the applicant advances five grounds of review:
1. The Tribunal has erred in accessing that the clause 187.233 and the additional criteria has not met in our case.
2. Our employer has lodged a valid nomination, and as per the criterion requires my employer is the same person who will employ me and he is the same person/organisation who made the nomination.
3. Our nomination has not yet approved and not been withdrawn
4. There is no ‘adverse information’ known to Immigration about the person/organisation who made the nomination or a person ‘associated with’ that person (within the meaning r.1.13A and r.1.13B); or it is reasonable to disregard any such information.
5. The position is still available for me, and
The visa application was made no more than six months after the nomination of the position was approved.
(errors in original)
The grounds show a misunderstanding of the issue before the Tribunal. The question for the Tribunal involved the strict application of the legislative requirements and the Tribunal had no discretion to waive the jurisdiction requirements. The sole issue for the Tribunal to determine was whether at the time of the decision, the position to which the visa application related was subject of an approved nomination in accordance with clause 187.233 of the Regulations. The material before the Tribunal indicated that the sponsor’s nomination application had been refused. There was otherwise no evidence before the Tribunal to suggest that Mr Pandya was the subject of an approved nomination at the time of the Tribunal’s decision or that the sponsor had sought judicial review of that decision. As Mr Pandya failed to satisfy clause 187.233, the Tribunal had no power or discretion to waive that requirement.
The grounds assert that Mr Pandya met the requirements of clause 187.233. However, as the nomination by the sponsor was not approved, the applicant did not meet clause 187.233(3) and therefore could not meet the remaining requirements of clause 187.233. Insofar as Mr Pandya alleges his employer “lodged a valid nomination” and that the “position is still available”, the existence of a valid nomination subsequent to the Tribunal’s decision could not have affected the Tribunal’s exercise of power and does not establish jurisdictional error on the part of the Tribunal.
I accept from the medical evidence supplied that Mr Pandya is suffering a high level of stress. He was unable to attend today, even by telephone, because he had taken medication, and, as Mrs Pandya has explained, he is currently asleep.
I accept that these proceedings are a significant element of the stressors in Mr Pandya's life. He is currently unable to deal with the proceedings himself. I have contemplated whether it would be appropriate to seek to have the second applicant, Mrs Pandya, made Mr Pandya's litigation guardian. However, I see no purpose in that in circumstances where the application is doomed to fail. Mrs Pandya states that there are matters of substance that Mr Pandya would want to put before the Court. The procedural orders made last year gave him that opportunity, which he has not taken up. There may be matters which Mr Pandya wishes to put to the Minister in support of his visa application. That is a matter for him. It is beyond the scope of this proceeding.
I can see, however, nothing that Mr Pandya could put before the Court in relation to the legal issues that could lead to a favourable outcome. Accepting that Mr Pandya has not been able to deal with the litigation because of ill health, it would be appropriate, in my view, to give him the opportunity to discontinue the proceedings without a cost penalty.
On condition that the applicants file a Notice of Discontinuance no later than 5.00pm on 31 January 2020, the application will be discontinued with no order as to costs.
If no Notice of Discontinuance is filed in accordance with Order 3, the application will be dismissed with effect from 31 January 2020 by virtue of these orders, with the first and second applicant to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 January 2020
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