Rathod v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 332
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rathod v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 332
File number(s): SYG 1204 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 5 May 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) visa – whether Tribunal failed to notify applicant of hearing – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 359, 363, 379
Migration Regulations 1994 (Cth) cl 186.223 of Schedule 2
Cases cited: KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (KC) [2023] FCA 4
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 9 February 2023 Date of hearing: 9 February 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Evans appeared on behalf of the Respondent. ORDERS
SYG 1204 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROJER RAYMUNDBHAI RATHOD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
5 May 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the amount of $5500.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. On 17 October 2017, the he applied for an Employer Nomination (Permanent) (Class EN) visa (“Employer Nomination visa”). A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Employer Nomination visa on 26 April 2018.
On 26 June 2018, the applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision not to grant the applicant his Employer Nomination visa on 9 June 2021.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
The Court notes the matter was adjourned at the request of the First Respondent after an initial hearing to allow the Minister to make supplementary written submissions on the issue of futility.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 1 to 10 of the Tribunal’s decision record outline the background of the applicant’s Employer Nomination visa application. At paragraph 4, the Tribunal notes that the applicant was seeking his visa in the Temporary Residence Transition stream to work as a Café or Restaurant Manager.
At paragraph 6, the Tribunal states that on 21 April 2021, it wrote to the applicant pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) providing particulars of information that it considered would be the reason, or part of the reason, for affirming the delegate’s decision. The applicant was invited to comment on or respond to the particulars reproduced below:
The application for approval of the nominated position made by Emibarb Pty Ltd ATF The Emibarb Trust (“the Nominator”) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision with the AAT, but the application for review has recently been affirmed by the Tribunal on 16 April 2021.
The applicant was given until 5 May 2021 to provide comments or a response to the above information, or to seek an extension of time to respond, otherwise he could lose any entitlement he may have otherwise had under the Act to appear before the Tribunal. At paragraph 10, the Tribunal states that it did not receive any comments or a response from the applicant, nor a request for an extension of time, within the prescribed period.
At paragraph 11, the Tribunal notes that the s 359A invitation was sent to the email address belonging to the applicant’s representative, which was the last address for service provided by the applicant.
At paragraph 12, the Tribunal states that, because of the applicant’s failure to respond or comment, s 359C(2) and s 360(3) of the Act applied and the applicant was not entitled to appear before the Tribunal. Under s 363A of the Act, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise.
The Tribunal further notes that, in paragraph 13, the courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, s 363A of the Act precludes the Tribunal from offering an applicant a hearing. The Tribunal relied upon Singh v Minister for Immigration and Border Protection [2017] FCAFC 67.
At paragraph 16, the Tribunal stated that the issue in the matter concerned whether the position to which the application related was the subject of an approved nomination. At paragraph 17 and 18, the Tribunal outlines the legislative requirements for the grant of the visa type sought by the applicant. Notably, cl 186.223 of Schedule 2 to the MigrationRegulations 1994 (Cth) (“the Regulations”) requires that the position to which the application relates be the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the applicant.
At paragraph 19, the Tribunal notes that the nomination application lodged by the Nominator was refused by the delegate on 26 April 2016. The Nominator lodged an application for review on 14 May 2018, however on 16 April 2021 the Tribunal affirmed the decision under review to refuse the employer nomination.
At paragraph 22, the Tribunal stated that as the nomination had not been approved, it had no option but to find that the position to which the application related was not the subject of an approved nomination that identified the applicant. Accordingly, at paragraph 23 the Tribunal found that cl 186.223 of Schedule 2 to the Regulations was not met.
At paragraph 24, the Tribunal acknowledges that the applicant had only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream and that no claims had been made in respect of any other visa stream. As the requirements for the grant of a visa in this stream had not been met, the decision under review had to be affirmed.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained within in Initiating Application filed with the Court on 28 June 2021. They are as follows verbatim:
1. The applicant is of the view that the AAT member erred in the decision because there was a failure to notify directly of the invitation to appear at the Tribunal to give evidence.
2. The member said in the decision dated 9 June 2021 that the Tribunal had sent the invitation to my migration agent Ms Sun Hishop. In the opinion of the applicant the Tribunal should have sent the invitation to appear before the Tribunal to the applicant at his home address or email. The decision made no mention of sending the invitation under s359A of the Act to the applicant.
3. The applicant believes that this failure amounts to a Jurisdictional error made by the Tribunal.
4. The applicant was denied the right to have his case heard properly before the Member.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter and the Court was satisfied that the applicant was able to properly participate in the hearing, present evidence and make arguments.
Prior to the hearing commencing, the Court ensured that the applicant had access to a copy of the relevant Court book and a copy of the first respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.
Despite Court orders, no written submissions or other material supplied by the applicant in support of his application for judicial review. The applicant explained his situation to the Court at the first hearing. The applicant expressed his disappointment in regards to his current position and told the Court that he has spent more time in Australia, than he has in his country of birth.
During the second hearing the applicant told the Court that he was “over the Court case and just wanted the proceedings finalised”.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to grounds one and four, the first respondent submitted that, despite the applicant’s assertions, the Tribunal did not invite the applicant to attend a hearing. It was submitted that the Tribunal’s s 359A invitation complied with the relevant legislative requirements and was valid. Given that the applicant’s response to the s 359A invitation was not provided within the prescribed time, ss 359C, 360(3) and 363A of the Act precluded the Tribunal from inviting the applicant to attend any hearing before it.
The first respondent submitted that grounds two and three assert that the Tribunal failed to send the s 359A invitation in a correct and proper manner. The Tribunal sent their s 359A invitation to the applicant’s representative on 21 April 2021, being the email address provided by the application in association with the review and the only email address provided to the Tribunal for the purposes of communication with the applicant (Court Book pages 78 and 83). It was submitted that, in the absence of written notification of withdrawal of the applicant’s representative, the Tribunal was not required to provide the documents directly to the applicant. In fact, the Act prohibited the Tribunal from doing so.
In addition, the first respondent submitted that it would be futile for the Court to remit the matter back to the Tribunal even if jurisdictional error were to be established. The only decision open to the Tribunal would be for it to affirm the delegate’s decision as the nomination was refused. The applicant would not be able to satisfy the mandatory criteria in cl 186.223 of Schedule 2 of the Regulations which requires the position to which the visa application relates must be the one nominated in that application.
CONSIDERATION
Grounds one and four assert that there was a failure to notify the applicant directly of the invitation to appear at the Tribunal to give evidence and that as a result he was denied the right to have his case heard properly before the Tribunal.
As set out in the Tribunal decision, the applicant was invited under s 359A of the Act to comment on or respond to information, that being that the sponsor’s nomination application had been refused by the Tribunal. That letter also advised the applicant that if he did not respond to the s 359A letter or request an extension of time by 5 May 2021, he would lose any entitlement to appear before the Tribunal. At paragraphs 11 through to 13, the Tribunal properly set out the impact of the applicant failing to respond to the s 359A letter, in that pursuant to s359C(2) and s360(3) of the Act, the applicant had lost his right to appear before the Tribunal. The Court has carefully reviewed the reasoning of the Tribunal in that regard and can find no error of law in the Tribunal’s reasoning. Grounds one and four have no merit.
Ground two and three assert the Tribunal failed to send the s 359A letter to the applicant in the correct and proper manner. Pursuant to s 379G(1) of the Act, the Tribunal are required to give the authorised recipient, where there is one, instead of the applicant any documents in connection with the review. Further, an applicant is taken to receive that document at the time in which is provided to the authorised recipient. The Court is satisfied that the Tribunal sent the s 359A invitation to the applicant’s nominated email address, being the email of the applicant’s representative. The Court is further satisfied that in the absence of a written notification of the withdrawal of the applicant’s representative, not only was the Tribunal required to provide the applicants directly to the representative, it was prohibited from providing them directly to the applicant. Grounds two and three have no merit.
Additionally, given that the applicant sought an employer nominated visa, and in circumstances where this employer nomination was not successful, the Court is of the view that the decision of the Tribunal was the only one open to it. That is, the application for review by the Tribunal was fatally flawed from the moment the employer nomination was refused, following review by the Tribunal.
The Court notes that in addition, the first respondent relies upon the assertion that it would be futile to remit the matter back to the Tribunal even if jurisdictional error were established (which is not conceded) as the Tribunal would be required to make the same decision. The Court noted the decision of the Federal Court in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (KC) [2023] FCA 4 per Rares J. In that case the Federal Court found that, in the particular factual circumstances of that case, where there was a new sponsor and the Tribunal failed to allow an adjournment to allow the new sponsor to seek a review of the Minister’s decision, futility was not arguable. The Court is satisfied that the decision in KC has no applicability to the factual circumstances of this case. Accordingly, the Court agrees that it would be futile to remit the matter, even if jurisdictional error existed, as the Tribunal would be bound to make the same decision
CONCLUSION
There being no merit in the grounds of judicial review the application must be dismissed. The Court will hear from the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 5 May 2023
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