Ramandeep v Minister for Immigration

[2020] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMANDEEP v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2193

Catchwords:
MIGRATION – Regional Employer Nomination (subclass 187) visa – decision of the Administrative Appeals Tribunal – where nomination was withdrawn – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05

Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 359B, 359C, 360, 363A, 379A

Migration Regulations 1994 (Cth), reg.4.17, cl.187.233 of sch.2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: RAMANDEEP

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 436 of 2019

Judgment of: Judge Kendall

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Perth

Delivered on: 12 August 2020

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 436 of 2019

RAMANDEEP

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India. On 7 November 2017, he applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (Court Book (“CB”) 1-12). His nominated occupation was as a “Cook”.

2. On 18 May 2018, the then Department of Home Affairs invited the applicant to comment on information related to his visa (CB 14-17). Specifically, he was asked to comment on information that his sponsor’s nomination had been refused (such that he could not be granted the visa). No response was received from the applicant.

3. On 18 June 2018, a delegate for the first respondent (the “Minister”) refused to grant the applicant the visa (CB 18-24). The delegate was not satisfied that the applicant met cl.187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate found that the applicant did not have an approved nomination as the sponsor’s nomination had been refused.

4. On 8 July 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 25-26).

5. On 1 October 2019, the Tribunal wrote to the applicant inviting him to comment or respond to information which “would be the reason for affirming the delegate’s decision” (CB 31-32). That is, information that the sponsor had withdrawn their application for review of the decision to refuse their nomination. This meant that the applicant might not meet cl.187.233 of the Regulations. No response was received from the applicant.

6. On 17 October 2019, the Tribunal affirmed the delegate’s decision to refuse the visa application (CB 35-38).

Tribunal’s Decision

1. The Tribunal’s decision is four pages long and spans 15 paragraphs.

2. The decision commences by providing a background to the application. This includes information about the visa applied for and the outcome of the delegate’s decision (at [1]-[4]).

3. The Tribunal then summarised the requirements of cl.187.233 of the Regulations (at [6]-[7]).

4. The Tribunal then summarised the delegate’s decision in greater detail (at [8]-[10]).

5. The Tribunal then stated as follows:

   11. By ‘Withdrawal of application for migration or refugee review - MR Division’ form, the applicant’s nominator withdrew their merits review application with the Tribunal.

   12. By s.359A letter of 1 October 2019 (emailed to the applicant), the Tribunal advised the applicant that on 1 October 2019, the Tribunal accepted the withdrawal of the merits review application by their nominator. Further, that this was relevant as cl.187 .233(3) requires that the nomination made in relation to the applicant by their nominating employer had been approved; and that if the Tribunal relied on this information, it may find the nomination in relation to the applicant has not been approved and consequently, the decision under review should be affirmed. The Tribunal advised the applicant they should respond in writing by 15 October 2019. No response had been received at the time and date of this decision. In the circumstances of this case, the Tribunal has decided to proceed to a decision without giving the applicant any further chance to respond.

   13.That being said, and based on the evidence before the Tribunal, I am satisfied the applicant had not met cl.187.233(3); and that cl.187.233 is not met.

   14. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

6. On the basis of the above, the Tribunal affirmed the decision not to grant the applicant the visa (at [15]).

Proceedings in this Court

1. Somewhat unusually, the applicant in this case did not file his judicial review application on the approved Court form for judicial review as per r.44.05(1) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). Instead, he filed an affidavit.

2. Having noted this discrepancy (and in order to ensure that the Court records were correct), the Court called a directions hearing on 28 July 2020 to clarify with the applicant that his “grounds” of review were stated in the affidavit affirmed 11 November 2019. Unfortunately, the applicant did not attend the directions hearing.

3. The Minister filed submissions that address the matters raised in the affidavit and did not take issue with the fact that the applicant did not file the application with the approved form.

4. As the applicant was unrepresented, the Court made orders dispensing with compliance of r.44.05(1) of the Rules pursuant to r.1.06 of the Rules. The affidavit of the applicant affirmed 11 November 2019 is thus taken as the applicant’s judicial review application.

5. Against that background, the applicant’s affidavit provides one “ground of review” as follows:

   I wish to apply for a Federal Circuit Court Application for a review of AAT Decision. The AAT Decision Maker has not made a fair decision.

6. Annexed to the applicant’s application is a letter to the Court indicating that he had not been assisted by a lawyer.

7. The applicant was given an opportunity to file an amended application, any affidavit evidence and any written submissions prior to the hearing. No further materials were filed.

8. The materials before the Court are thus limited to the applicant’s affidavit affirmed 11 November 2019 (which, as noted above, is read as the applicant’s judicial review application), a Court Book numbering 38 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 20 July 2020.

9. The applicant appeared before the Court without legal representation. He was assisted by a Hindi interpreter. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the “ground of review” and to outline any other concerns he has with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

10. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, they most commonly include (but are not limited to) 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 at [2]; and

    f)where the decision is illogical, irrational or unreasonable: 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].

11. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks.  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.

12. Against this background, the applicant stated that when he was working for the sponsor he “was doing everything right”. After the refusal, “he moved city and suffered depression”. Further, while he “believed the Tribunal’s decision was correct”, the hardship and depression he has suffered since that time has been immense.

13. Unfortunately, the applicant’s oral submissions do not identify any error in the Tribunal’s decision. Rather, the applicant has essentially conceded that there was no error.

14. In relation to the applicant’s current mental health, the Court sympathises.  However, there is no evidence before the Court that the applicant’s health prevented him from meaningfully participating before the Tribunal or before this Court.  The applicant’s oral submissions before this Court were clear and articulate.

Consideration

1. The sole “ground of review” (as outlined in the applicant’s affidavit) is that the Tribunal did not make a “fair decision”. As the Court, and the Minister, understand, this ground is suggesting that the Tribunal breached the procedural fairness obligations owed to applicants under div.5 of pt.5 of the Act.

2. For the reasons that follow, the Court is satisfied that the applicant was not denied procedural fairness.

3. Here, the applicant was invited to comment on or respond to adverse information that would be part of the reason for affirming the decision on review (CB 31-32). That invitation was issued pursuant to s.359A of the Act. Relevantly, it:

   a)stated that the sponsor’s withdrawal of their application would be the reason for affirming the decision: the Act, s.359A(1)(a);

   b)indicated that this was relevant because it was a criterion of the visa that the applicant have an approved nomination: the Act, s.359A(1)(b);

   c)invited the applicant to comment or respond to the information in writing: the Act, ss.359A(1)(c) and 359B(1)(b);

   d)indicated that the applicant should respond by 15 October 2019: the Act s.359B(2). The time provided to the applicant to respond was the time that was prescribed by reg.4.17 of the Regulations; and

   e)was sent via email (a method specified in s.379A(5) to the applicant’s nominated email account: the Act, s.359A(2).

4. The applicant was validly invited to comment on the adverse information. His failure to respond within the time provided meant that he was not entitled to attend a hearing. The Tribunal had no power to invite him to attend a hearing and could make a decision at any time without taking any further action. This is the “cascading effect” of ss.359C, 360(3) and 363A: Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413.

5. Further, the applicant did not request an extension of time to respond to the invitation to comment. He had not engaged with the Tribunal in any manner since filing his application.

6. In these circumstances, it was entirely reasonable for the Tribunal to proceed to make a decision without waiting for the applicant to provide further information.

7. To the extent that the applicant’s oral submissions suggest he was suffering mental health issues after the delegate’s decision, there is no evidence to this effect before the Court.

8. There is no breach of the exhaustive procedural fairness obligations in this matter.

9. The sole ground of review is, accordingly, dismissed.

10. The Court has otherwise reviewed the Tribunal’s decision and is satisfied that no error arises.

11. The Tribunal correctly identified the relevant legal provisions and correctly determined that there was no evidence to satisfy cl.187.233 of the Regulations.

12. The Tribunal came to the only decision that was open to it in light of the facts and evidence before it.

13. The Court also notes that, as relevant to the particular circumstances of this case, even if the Court were able to identify jurisdictional error, it would (in any event) be futile to remit the matter for rehearing before the Tribunal. This is so because the applicant would still fail to satisfy cl.187.233 of the Regulations. He could not be the subject of an approved nomination as his sponsor has withdrawn its application. Further, the applicant cannot seek to obtain a new sponsor or a new nomination for the visa: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[89]. The sponsor’s actions have, in effect, sealed the applicant’s fate and he cannot be granted the visa he seeks.

Conclusion

1. The applicant has failed to identify any jurisdictional error in the Tribunal’s decision. The Court has otherwise been unable to identify any error. Further, remittal of the matter would be futile.

2. The application is, accordingly, dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date: 12 August 2020