Pasha v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 907
•3 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Pasha v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 907
File number(s): SYG 2386 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 November 2022 Catchwords: MIGRATION LAW – applicant’s application for review of Registrar’s decision – hearing de novo of respondent's application for summary dismissal – decision of Administrative Appeals Tribunal – Regional Employer Nomination (Subclass 187) visa – application of clause 187.233 of schedule 2 Migration Regulations 1994 – where the applicant was not subject to an approved nomination – where Tribunal made the only decision available in the circumstances – further consideration of Tribunal’s refusal to refer applicant’s matter to the Minister under section 351 Migration Act 1975 (Cth) – finding that no reasonable prospects of success and remittal to the Tribunal would be futile – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143
Migration Act 1958 (Cth), s 351
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.13, 21.04
Migration Regulations 1994 (Cth) sch 2, cl 187.233
Cases cited: Bechara v Bates [2021] FCAFC 34
NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 470
Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 20 October 2022 Date of hearing: 20 October 2022 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms S Roberts of Mills Oakley ORDERS
SYG 2386 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHAJA PASHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
3 November 2022
THE COURT ORDERS THAT:
1.The applicant’s application for review of a Registrar’s decision filed on 29 September 2022 be dismissed.
2.The applicant pay the first respondent’s costs of this application in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for review of a decision made by Registrar Carney on 13 September 2022. That decision concerned an application by the first respondent for summary dismissal of the applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 2 December 2021.
Relevantly, by his decision, Registrar Carney made orders:
(a)summarily dismissing the applicant’s application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’); and
(b)for the applicant to pay the first respondent’s costs fixed in the sum of $3,930.00.
The applicant filed his application for review of this decision on 30 September 2022, some 10 days outside of the 7-day timeframe prescribed by the Rules. At the commencement of the hearing before me, the representative for the Minister indicated that while an extension of time was formally opposed, there was no strong opposition to proceeding with the review in circumstances where the court has a broad discretion to extend time. In these circumstances, I granted leave for the applicant to proceed with this application out of time.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. The task of this court therefore is to consider the first respondent’s application for summary dismissal afresh. This approach is consistent with the principles outlined by the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34.
Background
Application for subclass 187 visa on 10 March 2017
The applicant is a citizen of India. On 10 March 2017, he applied for a Regional Employer Nomination (Subclass 187) visa (‘subclass 187 visa’) in the Direct Entry stream on the basis of his employment with Hospitality Future Pty Ltd (‘the sponsor’) in the nominated occupation of ‘Café or Restaurant Manager’.[1]
[1] Court book at pages 1 to 12.
On 8 February 2019, the Department of Home Affairs (‘Department’) wrote to the applicant inviting him to comment on unfavourable information that it had received, namely, that his nominated sponsor did not operate out of the address provided by the applicant and that, in fact, another business entity was operating out of that location. The applicant was advised that as a result of this unfavourable information, the Department had ‘formed the view that the position of Café or Restaurant Manager as nominated by Hospitality Future Pty Ltd is not available’.[2] The applicant was provided with 28 days to provide a response to the invitation, after which the Department may decide his application.
[2] Court book at page 98.
The applicant’s response to this invitation is at page 102 of the court book. In this response, the applicant stated that:
(a)he had met with the director of Hospitality Future Pty Ltd who had advised him that there was a genuine need for a Restaurant Manager;
(b)he advised the director of his ‘visa scenario’ and the director had agreed to nominate him for a subclass 187 visa and that the applicant would start the position after his application for a visa was approved;
(c)he was ‘shocked’ to have received correspondence from the Department that the restaurant where he thought he would be working was operating under a different ABN than the one he provided and that he was unaware that there had been a change in ownership in circumstances where the restaurant was still operating at the same address;
(d)he requested the Department to take into consideration the fact that he had ‘done nothing wrong’ and that the circumstances giving rise to the unfavourable information before the Department were due to factors beyond his control.
Refusal of nomination on 25 July 2019
On 25 July 2019, the applicant was advised that the nomination submitted to the Department by the sponsor had been refused, meaning that his visa application could not be approved.[3] He was invited to provide any comments on this outcome and was also informed of his option to withdraw his application. The applicant was advised that if he did not provide a response within 28 days and the application had not been withdrawn, then it would be refused.
[3] Court book at page 104.
It is relevant to note that the sponsor subsequently applied to the Tribunal for review of the decision made on 25 July 2019 to refuse the applicant’s nomination.[4] On 26 November 2019, the Tribunal determined that it did not have jurisdiction to review this decision in circumstances where the sponsor had been deregistered and ceased to exist as a legal entity.
[4] Tribunal decision record dated 2 December 2021 at paragraph [22].
Refusal of subclass 187 visa application on 27 August 2019
On 27 August 2019, in response to the Department’s invitation to provide comments in relation to the refusal of his nomination or otherwise confirm whether he wished to withdraw his visa application, the applicant confirmed that he did not intend to withdraw his application.[5]
[5] Court book at page 113.
Later that day, the delegate refused the visa application on the basis that he did not meet the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[6] Relevantly, this clause provides that a subclass 187 visa application cannot be granted unless the following criteria have been satisfied:
[6] Court book at page 116.
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(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 is evident from the terms of clause 187.233(3), an applicant for a subclass 187 visa is required to be subject to a nomination approved by the Minister. In this case, the visa application was refused on the basis that clause 187.233(3) had not been met, in circumstances where the Minister had refused the nomination on 25 July 2019.
Application for review at Tribunal on 7 September 2019
On 7 September 2019, the applicant applied to the Tribunal for review of the delegate’s decision of 27 August 2019 refusing his subclass 187 visa application.[7]
[7] Court book at pages 124 to 125.
On 6 October 2020, the applicant was invited to a hearing before the Tribunal,[8] to be conducted by telephone on 11 November 2020. The applicant attended this hearing and gave evidence and presented arguments with respect of his application for review.[9]
[8] Court book at page 140.
[9] Court book at pages 153 to 154.
On 2 December 2021, the applicant was advised that the Tribunal had determined to affirm the decision under review to refuse his subclass 187 visa application.
Tribunal decision
The Tribunal’s decision record of 2 December 2021 is at pages 160 to 166 of the court book.
In essence, the Tribunal determined to affirm the decision under review for the same reasons as those provided by the delegate at first instance. At paragraph [12], the Tribunal identified the sole issue before the Tribunal as ‘whether the nomination linked to the applicant’s visa application is approved’. Significantly, it highlighted that the question of whether there is an approved nomination is ‘not a matter in relation to which the Tribunal has discretion’.
At paragraphs [15] to [17], the Tribunal outlined the evidence given by the applicant in relation to his nomination being refused. The applicant had indicated that:
(a)he had tried, unsuccessfully, to contact the sponsor;
(b)the sponsor had not contacted him before the business shut down so he was not aware of the status of his nomination; and
(c)the refusal of his subclass 187 application was unfair in circumstances where he had tried to do everything in the proper way, but the visa still had not been granted. Moreover, he submitted that the reason why the sponsor’s business closed, which led to the nomination being refused, was because of the Department’s own delay in making a decision in relation to the nomination application.
The applicant also referred to the difficulty he experienced as a result of the Department’s delay in making a decision in relation to his application, including that he did not have familial support in Australia, that he had not been able to travel overseas to visit his family during the pandemic and that he had been unable to obtain assistance from a migration agent.
At paragraph [18], the Tribunal accepted the applicant’s submission that his nomination had been refused for reasons beyond his control. It further stated that:
18.… The Tribunal appreciates the extreme distress that Mr Pasha is experiencing in his current situation, which he believes would not have happened in the absence of delay by the Department. It is understandable that Mr Pasha considers that the decision to refuse to grant the application for the Subclass 187 visa is unfair given his situation and the consequences of the decision. However, it remains the case that the application for the nomination of the position related to Mr Pasha’s Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact and is a matter over which the Tribunal has no discretion.
Noting that the Tribunal’s previous refusal to review the decision to refuse the nomination application meant that the matter had been finally determined and there was no approved nomination as required by the Regulations, the Tribunal concluded that in all of the circumstances outlined above, it was bound to affirm the decision under review.
At paragraph [25], the Tribunal went on to note that it had been requested by the applicant to refer the matter to the Department for consideration by the Minister pursuant to section 351 of the Migration Act 1975 (Cth) (‘the Act’). Under section 351, the Minister has the power to substitute a decision of the Tribunal with his own if it is in the public interest to do so.
Ultimately, however, while the Tribunal sympathised with the applicant’s ‘unfortunate position’ and the circumstances beyond his control which led to the nomination application being refused, it was not convinced that the matter was ‘sufficiently unique or compelling to warrant the Tribunal referring the matter’.[10]
[10] Tribunal decision record dated 2 December 2021 at paragraph [25].
On this basis, the Tribunal affirmed the decision not to grant the applicant a subclass 187 visa.
Proceedings in this court
On 23 December 2021, the applicant filed an application in this court, seeking judicial review of the Tribunal’s decision of 2 December 2021. This application was accompanied by an affidavit annexing a copy of the Tribunal’s decision record.
The Minister filed a response on 17 January 2022, in which he sought that the application be summarily dismissed pursuant to rule 13.13 of the Rules on the basis that the application had no reasonable prospects of success.
On 11 April 2022, orders were made by Registrar Van der Westhuizen listing the summary dismissal application for hearing on a date to be advised. Further orders were made for the filing of material prior to the hearing date, including written submissions. Despite these orders, the applicant has not filed any further affidavits or written submissions in these proceedings.
The applicant attended the hearing on 13 September 2022 before Registrar Carney, following which Registrar Carney made orders dismissing the applicant’s application pursuant to rule 13.13(a) of the Rules.
On 29 September 2022, the applicant filed this application for review of that decision.
On 20 October 2022, the matter came on before me for hearing of the application for review of the decision to summarily dismiss the applicant’s application. The applicant appeared on his own behalf and made oral submissions in support of this application.
Summary dismissal principles
As stated, in a review application such as this, the first respondent’s application for summary dismissal to be heard de novo. As such, it is appropriate to briefly outline the principles relating to summary dismissal.
The court has the power to summarily dismiss a claim before it pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’), which is also reflected in rule 13.13 of the Rules. Section 143 of the FCFCOA Act relevantly provides that summary judgment may be given in relation to the whole or part of any proceedings where ‘the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding’. Section 143(3) of the FCFCOA Act then clarifies that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Similarly, rule 13.13(a) relevantly provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has not reasonable prospect of successfully prosecuting the proceeding or claim …
The principles by which a summary dismissal application is to be determined are well settled. In Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473, when considering the equivalent provision in the Federal Court of Australia Act1976 (Cth),[11] Perry J relevantly summarised them as follows at paragraph [7]:
(a)the respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of succeeding;
(b)the pleadings disclose no reasonable cause of action and that such deficiency is incurable;
(c)section 31A sets a lower threshold than the previous test for summary dismissal although the power to summarily dismiss must still be exercised cautiously given the early stage at which it is being sought;
(d)an assessment of the prospects of a claim involves ‘the making of value judgements in the absence of a full and complete factual matrix and argument’;
(e)the determination of a summary dismissal application does not require a mini trial based upon incomplete evidence, however it requires an assessment of the available material to determine whether there is a real question of law or fact that should be decided at trial.[12]
[11] See Federal Court of Australia Act 1976 (Cth), s 31A.
[12] Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (citations omitted).
Having regard to these matters, for the reasons which follow, I find that this is a matter which has no reasonable prospects of succeeding and therefore ought be dismissed summarily.
GRounds of review
In his application filed on 23 December 2021, the applicant proposes six grounds of judicial review as follows:
1.On 12 October 2020 I accepted the Tribunal invitation to attend the hearing scheduled for 11 October 2020.
2.The Tribunal decision was not made until 2 December 2021.
3.The Tribunal accepted that the circumstances that led to the refusal of the application for the nomination of the position linked to my application for the subclass 187 visa were beyond my control.
4.The Tribunal was aware of the delay in making the decision and failed to respond to my request for ministerial intervention pursuant to s 351 of the Act.
5.The Tribunal knowing that my circumstances are compelling yet failed to recommend ministerial intervention as I believe that my circumstances are sufficiently unique and exceptional to justify referring the matter.
6.The delay in making a decision so late is a denial of fairness and natural justice.
At the hearing before me, the applicant was invited to make any further submissions he wished to make with respect of his grounds of review. He indicated that he had nothing further to add beyond the matters raised in his initial application for judicial review.
Grounds 1 and 2
Grounds 1 and 2 recount the procedural history to this matter and do not identify any alleged error in the Tribunal’s decision that may properly constitute a ground of review.
Grounds 1 and 2 therefore do not have any reasonable prospects of success.
Grounds 3, 4 and 5
By grounds 3, 4 and 5, the applicant takes issue with the Tribunal’s refusal to refer his matter to the Minister under section 351 of the Act for intervention. Taken together, by these grounds, the applicant alleges that:
(a)the Tribunal accepted that the circumstances which led to his nomination application being refused were beyond his control;
(b)the Tribunal was also aware of the Minister’s delay in making his decision to refuse the applicant’s subclass 187 visa application; and
(c)in these circumstances, and having accepted that the applicant’s circumstances were ‘compelling’, the Tribunal erred in ‘failing to respond’ to his request for the matter to be referred to the Minister for intervention.
The applicant also takes issue with the Tribunal’s finding that his matter was not sufficiently unique or exceptional to justify referring his matter to the Minister.
To the extent that these grounds are understood as a submission that the Tribunal failed to consider the applicant’s request for the matter to be referred for Ministerial intervention, such a ground has no reasonable prospects of success. It is clear from the face of the Tribunal’s decision record that the Tribunal did, in fact, consider the applicant’s request to refer the applicant’s matter to the Minister for intervention.[13]
[13] See Tribunal decision record at paragraphs [25] to [27].
Having done so, the Tribunal declined to refer the matter in circumstances where it did not consider his matter to be ‘sufficiently unique, compelling or exceptional’ to do so. As the Minister points out, the Tribunal also made it clear to the applicant that he could make a request directly to the Minister for his intervention, if he wished to press this course of action.[14]
[14] Tribunal decision record dated 2 December 2021 at paragraph [27].
The Tribunal’s conclusion that the applicant’s case was not sufficiently unique or compelling to warrant the Tribunal referring the matter was reasonably open on the matters before it. At paragraph [26], the Tribunal also acknowledged the difficulties experienced by the applicant in not having his visa application determined in a timelier manner.
I understand that the applicant feels that it is unfair that the Tribunal did not, in all the circumstances of this matter, determine to refer the matter to the Minister for consideration under section 351, in circumstances where it accepted that there had been a delay in the Tribunal’s decision and, importantly, that fact that the sponsor’s nomination was rejected was due to matters beyond the applicant’s control.
However, that does not equate to jurisdictional error. On the facts of this case, even if I were to find that the Tribunal had erred in the way in which it dealt with the applicant’s request for a referral under section 351 of the Act; that could not amount to a jurisdictional error.
The issue of whether or not to refer the matter to the Minister for exercise of his discretion was not part of the Tribunal’s task in determining the applicant’s application for review. That task was confined to a consideration of whether or not the applicant met the necessary requirements of the grant of a visa under clause 187.233 of the Regulations.
As such, even there was an error in the way in which the Tribunal went about its consideration of this issue, which for the reasons previously stated, I am not satisfied was the case, it could not amount to a jurisdictional error because it has no bearing on its decision to affirm the delegate’s decision.
For each of these reasons, grounds 3, 4 and 5 therefore do not disclose any reasonable prospects of establishing jurisdictional error on the part of the Tribunal.
Ground 6
By ground 6, the applicant submits that the Tribunal’s delay in making its decision in relation to his application for review amounted to a denial of fairness and natural justice.
The Minister in his written submissions concedes that the decision was not made ‘quickly’. It is not in dispute that the applicant filed his application for review in the Tribunal in September 2019. He was not invited to a hearing until October 2020. The applicant attended a hearing in November 2020 although a decision was not made until over a year later, in December 2021. This represents a period of over 2 years between the applicant making an application to the Tribunal and a decision being made.
I accept that in these circumstances the applicant is frustrated by the delay and feels that he has been denied a fair process as a result. However, there is no requirement that the Tribunal make a decision within a specified time frame.
Without being in any way critical of the applicant who was representing himself in these proceedings, the applicant has not articulated how he says the Tribunal’s delay in making its decision evidences a jurisdictional error on the part of the Tribunal, other than to say that it was unfair and that he felt disadvantaged by it.
It is possible, and I accept that, in certain, rare cases, excessive delay may rise to the level of jurisdictional error,[15] however, I do not accept that this is such a case. The sponsor’s nomination was refused on 25 July 2019. As such, from that date onwards, the applicant did not satisfy the requirements of clause 187.233 of the Regulations. It follows that as at 7 September 2019, when the applicant applied to the Tribunal for a review of the delegate’s decision, he did not comply with clause 187.233 and therefore the visa could not be granted. The delay in the Tribunal’s decision making did not affect this fact.
[15] NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 470 at [5].
Ultimately, this is a case in which the Tribunal did not have discretion in its decision-making. As a result of the applicant’s failure to meet one of the pre-requisites to being granted a subclass 187 visa, namely, that he be subject to an approved nomination, the Tribunal had no choice but to affirm the decision under review. While one may question why it took a period of over 12 months for the Tribunal to reach the only decision available to it, it ultimately did make its decision, which was the only one that it could have reasonably made in the circumstances.
Therefore, ground 6 does not have any reasonable prospects of being made out.
Futility
As I have found that the applicant does not have any reasonable prospects of establishing jurisdictional error, it is not necessary for me to consider the utility of remitting the matter back to the Tribunal for reconsideration. However, even if I were satisfied that jurisdictional error had been established, it would be futile to grant the relief sought by the applicant.
This is because the Minister’s decision to refuse the applicant’s nomination, which was later affirmed by the Tribunal on 26 November 2019, means that the issue of the applicant’s nomination has been finally determined. The nomination application required by clause 187.233 is a ‘once off’ process meaning that even if the applicant was able to later successfully obtain a new, approved nomination, he would still not be able to meet the requirements of clause 187.233 for the purposes of this visa application, his original application for nomination having been denied.
It would therefore be futile to remit the matter back to the Tribunal in circumstances where it would ultimately reach the same conclusion as it did at first instance to affirm the decision under review.
Conclusion
For each of these reasons, the applicant has no reasonable prospects of success in establishing jurisdictional error on the part of the Tribunal and I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 3 November 2022
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