Poudel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3261

FEDERAL CIRCUIT COURT OF AUSTRALIA

Poudel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3261

File number(s):

BRG 173 of 2020

Judgment of:

JUDGE VASTA

Date of judgment:

27 October 2020

Catchwords:

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.2.75

Cases cited:

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

Number of paragraphs:

49

Date of last submission/s:

27 October 2020

Date of hearing:

27 October 2020

Place:

Brisbane

Counsel for the First, Second and Third Applicants:

Mr Selliah

Counsel for the First Respondent:

Mr Wood

ORDERS

BRG 173 of 2020

BETWEEN:

BHARAT RAJ POUDEL

First Applicant

SHOVA ADHIKARI POUDEL

Second Applicant

RAJARSHI POUDEL

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	27 OCTOBER 2020

THE COURT ORDERS THAT:

1.That the Application filed 19 March 2020 and amended on 13 October 2020 is dismissed.

2.That the First Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 21 February 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Bharat Raj Poudel and his wife and two children, temporary business entry visas.  On 19 March 2020, the Applicant asked this Court to review that decision. 

2. The background to the matter is somewhat complicated.  The Applicant arrived in Australia on 9 December 2006 as a holder of a 573 student visa.  The Applicant and his dependents were subsequently granted a temporary graduate visa and then a postgraduate research visa.  The Applicant was able to gain employment with Lianrick, Pty Ltd who ran a higher education institute.

3. The employer, or sponsor, made a nomination as an approved sponsor for the Applicant who would work with them.  The Applicant, on 25 July 2016, applied for what is colloquially known as a 457 visa and his dependents were included on the application.  On 18 November 2016, the sponsor’s application was refused. 

4. The Department then asked the Applicant to comment on their intention regarding the visa application given that the sponsor’s application had been refused. The Applicant was invited to withdraw the application or to make any other comment.

5. The Applicant did not withdraw the application.  On 19 December 2016, the sponsor, made another nomination to be an approved sponsor.  That application was refused on 16 March 2017.  Again, the Applicant was invited to address the fact that the sponsorship had been refused, whether he wanted to withdraw the application or whether he wanted to make any other comment. 

6. On 17 March 2017, a day afterwards, the sponsor made a third application.  This application was refused on 17 July 2017.  For a third time, the Applicant was invited to make a comment about the fact that the visa application had been refused, was invited to withdraw his application and was invited to make any other comment. 

7. As I have detailed, the Applicant, on all three occasions, refused to withdraw his application.    On 17 August 2017, the sponsor made another application to be an approved sponsor.  The Department had not yet assessed whether they would look at that nomination.  The Applicant had, in his application, still linked it to the first nomination application by the sponsor which had been refused in the latter part of 2016. 

8. The delegate actually assessed the Applicant’s application on 16 February 2018.  The delegate explained that, because the Applicant was not the subject of an approved nomination, he didn’t satisfy the regulations and, so, therefore, the delegate refused to grant the visa. 

9. On 7 March 2018, the Applicant applied to the AAT to review that decision.  Soon afterwards, the AAT acknowledged that application and the AAT wrote that it would get in touch when it was ready to hold the hearings and decide the matter. 

10. In the meantime, on 4 September 2018, the sponsor’s fourth nomination application was approved. 

11. The approval letter explained that, pursuant to reg.2.75 of the Migration Regulations 1994 (Cth) (“the Regulations”), the nomination would cease on the earliest of a number of matters. One of those was 12 months on the day after the approval had been made. In effect, this meant that the approval of the nomination would cease on 5 September 2019.

12. On 3 October 2019, the AAT invited the Applicants to attend a hearing on 28 October 2019. 

13. A week later, 10 October 2019, the AAT invited the Applicants to comment on information that the First Applicant was not the subject of an approved nomination. 

14. On 24 October, the Applicant responded to the invitation claiming that the AAT had failed to open the Applicant’s file before the nomination had expired and he wished to apply for a new nomination and that the expiration of the nomination was through no fault of his own. 

15. The AAT heard the matter.  It found that it didn’t have the power to allow the lodgement of a new nomination and didn’t have the power to remit the application back to the Department. 

16. The AAT noted that it had a great deal of sympathy for the Applicant, being in the situation that he was in, but the fact was that he was not the subject of an approved nomination.  Because he was not the subject of an approved nomination, the Applicant could not succeed in his review before the Tribunal and the Tribunal affirmed the decision, as I previously noted. 

17. By an amended application which was not actually filed, but upon which I have given leave to proceed, the Applicant argues three grounds. 

18. The first ground is that the AAT’s delay in finalising the Applicant’s review resulted in a real and substantial risk of prejudice to the Applicants; it can be inferred that there was a real and substantial risk that the Second Respondent’s capacity to assess the Applicants was impaired.  Due to the Second Respondent’s delay, the Applicants were denied an opportunity to have their case properly considered.  This delay this amounts to jurisdictional error of the type identified in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.

19. The second ground was that the AAT’s reasoning process was illogical and irrational, thereby resulting in a legally unreasonable outcome which amounted to a jurisdictional error. 

20. And the third ground is that the AAT misapplied and misconstrued reg.2.75, and failed to take into account the relevant consideration which is the second bullet point which is under the heading “Period of Approval” in the nomination approval notice. The second respondent also failed to make a finding.

21. With regard to the first matter, it would seem to me that there really are three distinct timeframes.  The Applicant, having filed his application for review before the AAT on 7 March 2018 is the beginning of that period which ends on 4 September 2018 when the sponsor’s fourth nomination was approved.  The next time period is 5 September 2018 to 5 September 2019; that date being the time that the application is in force until the time that the approval ceases or lapses.  And then, the third time period is the time period from 6 September 2019 through to 28 October 2019 when the AAT held the hearing.  There is actually a fourth time period, that is, from 28 October 2019 to 21 February 2020 that is the time that the AAT had the decision reserved.

22. In labelling these time periods, it is really the submission of the Applicant that fairness dictated that the Applicant’s matter be assessed by the Tribunal during time period 2.  If the AAT had been dealing with matters straightaway and had dealt with the Applicant’s application during time period 1, it would seem that the decision would have been unfavourable to the Applicant.  The AAT dealt with the Applicant’s matter in time period number 3. 

23. The Applicant relies upon the authority of NAIS (Supra).   At paragraph 5 of that decision, the Chief Justice, Gleeson CJ said:

    5. Undue delay in decision-making, whether by Courts or administrative bodies, is always to be deplored.  However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay.  The circumstances in which delay, of itself, will vitiate proceedings or a decision, are rare.  Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles.  There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression.  In such circumstances, the ground for relief is the oppression, not the delay.  A court of appeal, reviewing the decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe.  Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself.  Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case…

24. In that decision, the Court went through what had occurred where a Tribunal had delayed the time between hearing and decision and commented as to whether the delay did actually impair the decision-making in that the Tribunal would have had their recollection and impressions somewhat eroded by the effluxion of time.  In paragraph 11, the Court said:

    11. The fact that the impairment resulted from the default of the Tribunal is important.  Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant.  That does not make the procedure unfair.  On the other hand, when the Tribunal exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises. 

25. The Applicant here claims that the Applicant was not at fault for the fact that the Tribunal, having received the application on 7 or 8 March 2018, did not contact them until the beginning of October 2019, over 18 months later.  The Applicant says that the drawing out of those proceedings has affected the capacity to discharge its statutory obligations and that capacity has, at the very least, been materially diminished. 

26. It seems to me that the capacity of the Tribunal has not been, in any way, materially diminished.  The result that the Tribunal could come to has been somewhat changed as it would seem to me that if the Tribunal had heard the matter during time period 2, then the result would have been different. 

27. But that is not an error.  The Tribunal acted upon the facts that were before it and made a decision.  That decision was not affected by any error.  The effluxion of time is simply a reality of the fact that the Tribunal has a huge caseload.  There is no evidence here that there have been any requests for an expedited hearing or that the Applicant or his representatives had pointed out to the Tribunal that time was of the essence, having regard to the fact that the fourth nomination had been approved on 4 September 2018. 

28. That may have – and I stress only may have – been a different factor if it were that the Tribunal, having been notified of the urgency and was specifically asked to expedite the hearing had refused to do so, but that is not the case here. 

29. It may be that there are unfortunate consequences for the Applicant that the matter was not heard during time period 2 and, instead, was heard in time period 3; but, as I've pointed out, if the matter had been heard in time period 1, the result would have been unfavourable to the Applicant too.  It does not seem to me, then, that there has been any jurisdictional error made by the Tribunal.  This ground, therefore, fails. 

30. The second ground, that there was an illogicality in the decision, really stems from comments that were made by the Tribunal in paragraph 27 and then later in paragraphs 32 and following.  Regulation 2.75 meant that the nomination had ceased as at 5 September 2019; the Tribunal said this at paragraph 27:

    27. The applicant made a visa application, the only one, which was refused by a delegate because he did not have an approved nomination. It was refused, and thus the visa application was refused by the delegate has been the only decision the delegate could have made. From then to the date upon which the nomination expired, the applicant did not make another visa application. Had he done so, then the limitations of the nomination would not apply. It is not for the Tribunal to know of either the intentions of the nominator or the applicant. It was upon the employer to notify him of the approved nomination, and it was for the applicant to make a visa application based on that approved nomination. Had he done so, he would have avoided the consequences of r.2.75(2)(b) as that condition would have been inapplicable once the applicants visa application was made provided that it was within that 12 month period.

31. At paragraph 32, the Tribunal said that,

    32. The Tribunal acknowledges the applicant’s circumstances where he now finds that his approved nomination has expired.  The applicant has had a long journey in securing an approved nomination only to fall short of the line by his failing to make a visa application.  The Tribunal takes into account those circumstances as well as the consequences for his family…

32. While it is true that the Applicant, having made a visa application which was then refused, could not ever have made another visa application, that only means that the statements that were made in paragraph 27 really speak of a speculative situation that could not have actually existed.  Paragraph 27 was speculative because it was not part of the decision of the Tribunal. 

33. The Applicant attempted to say that the Tribunal were trying to convey that there were two reasons why the application was dismissed or the decision was affirmed.  Firstly, that the Applicant had a nomination which had lapsed and, secondly, because he didn’t put in a visa application when he could have. 

34. With all due respect to the Applicant, I do not see, on a reading of the decision, that there was a second reason given.  Such, in my view, is simply a throwaway observation made by the Tribunal because the Tribunal felt some degree of sympathy towards the Applicant, but it was never a reason why the Tribunal came to the decision that it did come to. 

35. It may be – and, again, I say it may be – that during the times where the department was keeping the Applicant abreast of the reality of the situation and had attempted to convince the Applicant that he should withdraw his application and then make a further application based on the new or the fourth application, that the Applicant may not find himself in the position that he now finds himself if he had heeded their advice.

36. I do understand that that’s not what the Tribunal actually said but it seems to me it’s what they may well have had in their mind.  But, as I say, all of that is speculation; all of that is simply trying to make sense of a situation that the Tribunal finds somewhat unpalatable when looking at the circumstances of the Applicant.  But it was not part of the decision and, therefore, cannot be affected by illogicality or irrationality.  Therefore, that ground fails. 

37. The final ground is a misapplication or misapprehension of the reg.2.75.

38. One needs to go through the regulations as they applied to the then 457 visa. For an application for a 457 visa to be valid, pursuant to cl.1223A(3)(da) of the Schedule 1 to the Regulations, a person must have nominated an occupation in relation to the applicant;

    (ii)either of the following applies,

    (A) the nomination had been approved under section 140GB of the Act and the approval of that nomination has not ceased under regulation 2.75;

    (B)  a decision in respect of the nomination has not been made under section 140GB of the Act;  and

    (iii)the person who nominated the occupation is not the subject of a bar under section 140M of the Act. 

39. Clause 457.223(4)(a), being a time of decision criterion, provided that each of the following applied: 

    (i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)the approval of the nomination has not ceased as provided for in regulation 2.75. 

40. Regulation 2.75(2) states: 

    (2) An approval of a nomination ceases on the earliest of:

    …

    (b) 12 months after the day on which the nomination is approved; and..

41. As I've already gone through the history of the Applicant’s applications, what needs to be noted is that, on 18 March, which was after the Applicants had applied to the Tribunal but before the delegate had approved the fourth nomination, there were amending regulations that came into effect which, in effect, abolished the subclass 457 visa. But with regard to the repeal of those provisions, the provisions that were in force immediately before the commencement of Schedule 1 to the amending regulations continue in relation to an application for a visa made before the commencement day which was 18 March 2018.

42. The amending regulations also made amendments to reg.2.75. However, cl.6704 provided that – and this is sub-clause 14 of that clause – despite the amendments of reg.2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of schedule 1 to that amending regulation continues to apply in relation to a nomination made before the commencement day.

43. Clause 15: However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day if, (a) before the commencement day, the person identified in the nomination applied for a subclass 457 visa on the basis of the nomination and (b) within 12 months after the day on which the nomination is approved the person applies to the tribunal for a review of a decision to refuse to grant a visa. 

44. The Applicant submits to me that this means that the approved nomination is still valid.  He says that that is because the Applicant had applied for the visa and that, before the commencement day, the Applicant had not had the decision made; therefore, the Applicant says that the nomination is still valid. 

45. I have some difficulty accepting this proposition.  The legislation is fairly clear.  Paragraph 2.75(2)(b) provides that the approved nomination ceases a year after the day the nomination is made; that is, 5 September 2019.  It seems to me that unless the time of decision was before 5 September 2019, then there will not be an approved nomination.  That is the effect of regulation 2.75(2)(b). 

1. The exception to paragraph 2.75(2)(b) was if, before the commencement day, the person had applied for a 457 visa on the basis of the nomination.  This was not so.  The Applicant had applied for the visa back in July 2016 on the basis of the nomination that was lodged in mid-2016.  For the exception to apply, the Applicant must have applied for the visa on the basis of the nomination of the fourth nomination which was made in August 2017 and within 12 months after the day on which the nomination was approved, that the Applicant applied to the tribunal for a review of the decision to refuse to grant the visa. 

2. The Applicant applied to the Tribunal on 7 March 2018, some six months before the nomination was approved.  As the two exceptions in cl.15 are cumulative, the Applicant could not have satisfied one of them, let alone both of them.  It therefore means that there is no jurisdictional error that has been established.  So this ground also fails. 

3. As the Tribunal noted, it is almost impossible not to feel sympathy for the Applicant in this case.  But as has been said in many other cases, this Court cannot decide matters according to sympathy.  It cannot torture the law or torture the evidence so that it can arrive at a palatable conclusion or decision. 

4. There are many matters that this Court has to decide, especially in this jurisdiction, that lead to somewhat unpalatable conclusions, but if that is what the law dictates, then that is what this Court is bound to enforce.  It is not for this Court to do anything other than that.  Therefore, the application is dismissed with costs in the sum of $7467.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       4 December 2020