Sahay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 774
•22 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sahay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 774
File number(s): MLG 392 of 2020 Judgment of: JUDGE A KELLY Date of judgment: 22 April 2021 Catchwords: MIGRATION – Skilled Independent (Points-Tested) (subclass 189) visas – applicants outside ‘migration zone’ at time of making application, and at time of delegate’s decision – where application for review may only be made, relevantly, where visa applicant was present in migration zone at time of delegate’s decision – applicants not present at time of decision – show cause hearing – where applicants apply for review by Tribunal – where Tribunal decides it has no jurisdiction to consider application – where common ground that applicants outside migration zone when delegate’s decision made – ability to apply for review governed by Pt 5 of the Act – applicable principles – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 65, 338, 347, 351, 357A, 360, 474, 476
Migration Regulations 1994 (Cth), Sch 2 cl 189.244, 189.311, 189.411Cases cited: Agar v Hyde (2000) 201 CLR 522
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 (2016) 152 ALD 478
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940Number of paragraphs: 35 Date of hearing: 13 April 2021 Place: Melbourne Counsel for the Applicant: The Applicants appeared in person Counsel for the Respondents: Mr C. Henies Solicitors for the Respondents: Australian Government Solicitor ORDERS
MLG 392 of 2020 BETWEEN: VIBHOR BINAY PRASSAD SAHAY
First Applicant
RASHIKA PRAKASH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The originating application dated 6 February 2020 be dismissed.
4.The applicant’s pay the costs of the first respondent fixed in the sum of $3,737.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By originating application dated 6 February 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 January 2020 affirming a decision of a delegate of the first respondent (Minister) refusing to grant Skilled Independent (Points-Tested) (subclass 189) visas (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed. In summary, on 2 January 2020 the Tribunal correctly concluded that it had no jurisdiction to consider the application for review made on 28 March 2019 in the combined circumstances that on 8 February 2019 (being the date of the delegate’s decision to refuse the visa application), the applicants were out of the ‘migration zone’ and where, further, another Tribunal (differently constituted) had earlier decided that the Tribunal had no jurisdiction to consider another application that the applicants had already made. While the Minister accepted that the applicant’s case as advanced before the court at the hearing was, if accepted, unfortunate, it was correctly submitted that the circumstance of the applicants being out of the migration zone at the time of the delegate’s decision was fatal to their application for merits review by the Tribunal. Having regard to the history of the matter, if their case was accepted, it may be appropriate for Ministerial intervention: Act, s 351.
Background
The background to the application is drawn from the Minister’s submissions and court book in the circumstance that the applicants have filed no material.
The first applicant, a male citizen of India aged 34 years, first came to Australia on 30 May 2017 on a Visitor visa (subclass 600) and the second applicant, a female citizen of India aged 32 years and spouse of the first applicant arrived with him, having been married since July 2015.
On 14 December 2017, the first applicant applied for the visa. The second applicant was listed as a dependant of the visa applicant. By the application, the first applicant revealed that he held a Masters of Financial Management while the second applicant disclosed that she held a Bachelor of Laws from the University of Lucknow, India.
At the time of making this application, the applicants were outside the ‘migration zone’, having departed Australia on 13 November 2017: Act, s 5(1). The applicants, who returned to Australia on 26 November 2017, departed on 14 December 2017 and returned again on 17 December 2017. On 16 January 2019, the applicants again departed Australia.
On 8 February 2019, a delegate of the Minister refused to grant the first applicant the visa, doing so on the basis that he did not satisfy any of the points requirement contained in cl 189.224(2) of Sch 2 to the Migration Regulations 1994 (Regulations). Consequently, the delegate also refused to grant the second applicant a visa on the basis that she was not the member of a family unit of a person who held a skilled visa: Regulations, Sch 2, cl 189.311.3.
The applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 20 March 2019, a Tribunal found that as the applicants were outside of the migration zone at the time that the delegate’s decision was made, it did not have jurisdiction to consider the applicants’ application: Act, ss 347(2)(a), 347(3A).
On 28 March 2019, the applicants lodged a further application for review of the delegate’s decision with the Tribunal.
On 5 April 2019, the Tribunal invited the applicants to comment on whether they had made valid applications, noting that they were not in Australia at the time of the delegate’s decision. In response, the applicants submitted that they were unaware of the requirement that they must be in the ‘migration zone’ at the time of the delegate’s decision and that they were outside of the migration zone because the first applicant’s father had undergone an operation (hip surgery). Much material was supplied in support of that submission. By their submission to the Tribunal (and this Court), it was plain that the applicants accepted they had been out of the migration zone at the time of the delegate’s decision made on 8 February 2019.
On 2 January 2020, the Tribunal made a decision that it did not have jurisdiction to consider the further application as “the application for review is not an application properly made under s.347 of the Act”: Reasons, [6] (Tribunal decision).
Procedural History
On 6 February 2020, the applicants filed an application for judicial review of the Tribunal decision together with an affidavit to which he exhibited a copy of the Reasons and deposed:
1.The evidences and grounds of application are true in nature.
2. The basis of our application for review is on compelling and compassionate grounds.
3. The evidences provided includes:
- Father BINAY KRISHNAGOVIND PRASAD SAHAY’S hip surgery medical certificates, bills (x-ray & medical costs incurred in surgery) and photos;
- Mother-in-law MAMTA PRAKASH’S chronic illness medical certificates, [and] bills.
4. All the evidences provided are true and represent the reasons for our trip to India based on compelling and compassionate grounds, due to which our application for review to the AAT was accepted on ‘migration zone’ jurisdictional error.
5. The decision record provided by the delegate of the Immigration Minister, which clearly states ‘decision can be reviewed’ on the first instance itself.
On 30 March 2020, a response was filed on behalf of the Minister seeking dismissal of the application on the basis that the Tribunal’s decision was not affected by error.
On 20 May 2020, orders were made, by consent, listing the matter for a show cause hearing. Orders were made affording the applicants opportunities to file any amended application, affidavits and submissions. On 15 January 2021, orders were made extending the date for compliance with those earlier orders, however, no further amended application, evidence or submissions were filed by the applicants.
On 25 March 2021, a submission was filed on behalf of the Minister together with an affidavit confirming that both Applicants had departed Australia on 16 January 2019 and arrived in Australia on 13 February 2019 and so were ‘outside the migration zone’ on 8 February 2019.
Grounds of review
The grounds of the application were framed in narrative form and read as follows:
1. My application for review to the AAT was rejected on the grounds of ‘migration zone’ sections 347(2), 338(7A), 5(1).
2. As per the section 338(7A), an applicant must be in Australian shores (territories/states) to make a valid application of review.
3. During the time of visa refusal, me and my partner were in India, and in the refusal letter and decision record it was clearly written that we are eligible to put a review.
4. The time we put in our application for 189 Skilled Independent visa, we were desperately waiting for the file to be opened for more than 6 months, but it didn’t open and in the middle of it we were getting negative news from our respective parents about their health, where they were struggling to cope up with their respective health, and were desperately seeking for our presence for a long period of time just to console themselves.
5. Thereafter, we contacted the Immigration Department for the same, and after consulting them, we left the country to India on a valid travelling visa.
6. After reaching there and spending some time with our parents due to which they felt positive and started recovering, we were about to leave for Australia, when we received the notification for refusal.
7. To this we were literally shocked to see the decision because as per our knowledge we were making those 5 points for NAATI, but after coming back and researching on that we got to know that for 5 points you need to get the accreditation, which in my casse I didn’t get that.
8. During the time of lodging the application I even provided the documents for the NAATI test including the result letter, but the case officer gave the refusal.
9. And we desperately wanted to let the case member from the tribunal know about the reason for claiming the points with full evidences, but that unfortunate thing happened, when we were outside ‘migration zone’.
10. I have attached all the relevant evidences including our parents medical certificates as the reasons (compelling and compassionate) behind our travel to India during that critical situation.
11. Above all I would like to draw your attention to the circumstances that we were in, when we were initially lodging the application for Skilled Independent 189 visa, where we didn’t take any help from migration agents, as they gave me false advises due to which I had to suffer a lot, and I was forced to put in a visitor application due to which my work rights were revoked and we had to struggle a lot thereafter.
12. To be honest we were under the impression that those 5 points for NAATI can be claimed by sitting for the tests, which we did on our own.
13. Even during our crucial time of whether to leave the country for the sake of our beloved parents was taken based on our conversation with immigration case officers, who clearly told us to leave the country after granting us our Bridging visa B travelling rights, as we did accordingly as per the guidance but unfortunately just after leaving the country we received the unfavourable decision.
14. However, in the refusal letter as well the case officer clearly mentioned that we are eligible to utilise our review rights but the case member from the AAT applied the ‘migration zone’ Act, and he didn’t allow us to present our side of the arguments in person during hearing.
15. To be honest being a layman and skilled people in different skill-sets, we were not knowing about the migration zone, and even the case officers from the Immigration Department, whom we consulted didn’t tell us about this law.
16. We just went overseas to meet and we with our parents and just because of this we are unable to get our visa application reviewed. (Emphasis added)
As model litigant, the Minister identified that, fairly read, the grounds of review contended:
16.1.they have ‘compelling and compassionate circumstances’;
16.2.they were unaware of the requirement that they be in the migration zone at the time of the delegate’s decision; and
16.3.they had to be in India at the time of the delegate’s decision for the sake of the first applicant’s parents; and
16.4.the Tribunal did not allow them to present their arguments at a hearing.
Although the second applicant, a lawyer, stated that she would make oral submissions on behalf of the applicants, in the event, both applicants made oral submissions. In doing so, they accepted that despite the orders made in May 2020, and again in January 2021, they had filed no further submissions or evidence in addition to that set out above. The applicant submitted that the essence of their substantive complaint was set out in the first applicant’s affidavit and the narrative provided by the grounds of review and expanded upon those matters as follows.
The applicants submitted that they had waited a period of over six months in seeking a decision upon the visa application and that during that period the first applicant’s father’s degenerative hip condition had worsened to the point that it required surgery and, further, that the father sought to have his son (the first applicant), at his side following that surgery. The second applicant added that her mother was also suffering illness and sought her comfort.
The applicants submitted, in effect, that they had not simply left the ‘migration zone’ without notice to the Department of Home Affairs but, to the contrary, had made a telephone conversation and explained the circumstances and that, they were advised they could apply for a Bridging Visa B in order that they might depart from and return to Australia and that they did so. The applicants submitted that they successfully obtained a Bridging Visa B and it was only when they were in India that they received notification on 11 February 2019 advising them of the delegate’s decision. It was further submitted that (consistently with the grounds of review and the first applicant’s affidavit), the notification which they received of the delegate’s decision informed them of their entitlement to apply for review within 21 days. It was submitted that the applicants had duly made their application for review within that period.
The applicant submitted that there Bridging visas were granted on 19 January 2019 (Grant No 0049 510 728 833 and Application ID No 1030 6077 21).
The applicants stated that, at no stage were they informed or otherwise aware that a constraint on any entitlement to apply for a review by the Tribunal of a delegate’s decision might arise from the fact that the person who had made the visa application had not been physically present in the migration zone at the time of the delegate’s decision.
While accepting that they had been outside of the migration zone when the decision was made by a delegate of the Minister to refuse the visa application, they submitted that the mistake had arisen in the circumstances described above and asked that the matter be remitted to the Tribunal in order that reassessment could be made on the merits of the application
The solicitor advocate for the Minister submitted that there was a paucity of evidence or any affidavit or other documentary evidence to support what was described as being a “new case”. It was further submitted that in the circumstances of the case the applicants had been afforded an extended opportunity to file any amended application, further evidence and submissions and had not done so. It was further submitted, with some justification, that had the applicants articulated the matters described above by way of submissions or affidavit or other evidence, this would have given rise to an opportunity for the details so exposed to be referred to, explored, confirmed and/or denied by the Minister. Instead, where the opportunities given in the proceeding to make out the grounds of review had not been taken, it was submitted that the Act expressly confined the entitlement to apply to the Tribunal for the review of a Part 5-reviewable decision, relevantly, to a non-citizen who was physically present in the migration zone at the time when the delegate’s decision had been made.
Consideration
If the Tribunal’s decision was a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, pars 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Act, s 476(2).
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). The parties consented to such a hearing in this case.
Caution is required in the determination of an application, including a show cause application, which, in effect, determines a proceeding summarily: cf Agar v Hyde (2000) 201 CLR 522, [57]. Whether the application before the court is by way of an application for an extension of time or a show cause application, the correct approach for the court is to consider whether the grounds of review are properly to be regarded as being “arguable”, “reasonably arguable”, “sufficiently arguable” or [one that] has “reasonable prospects of success”: cf MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62]-[63] (Mortimer J), aff’d on appeal [2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ). Relatedly, it will not be in the interests of the administration of justice to allow an application to proceed to a final hearing pursuant to r 44.12(1)(b) where the applicant has not demonstrated an arguable case for the relief claimed upon the grounds of review, the submissions made or otherwise.
As the applicants were self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and the application for review.
The application was one to which Pt 5 of the Act applied. Part 5 of the Act comprises ss 336M – s 379A of the Act.
It was not in dispute that the decision of the delegate made on 8 February 2020 refusing the application was a Part 5 – Reviewable decision: Act, s 338(7A): Regs, Sch 2, cl 189.411. Further, the delegate’s decision was a decision covered by s 338 (7A) of the Act. That is because, in the circumstances of this case, the first applicant, a non-citizen, was outside the migration zone at the time the application was made and, by operation of cl 189.411 of Sch 2 of the Regulations, the visa was of a kind that could be granted while he was either or outside of the migration zone.
The review of a Part 5 – Reviewable decision by the Tribunal is governed by Div 3 of Pt 5 of the Act. Relevantly, by the combined operation of ss 347(2)(a) and 347(3A)(a) of the Act, read with s 338(7A), an application for review of a primary decision may only be made by a non-citizen who is the subject of the decision where he or she was physically present in the migration zone when that decision was made.
As was common ground before the Tribunal, neither of the applicants was in that zone at the time of the delegate’s decision. Under the Act, the applicants were not afforded a right to apply for a review of the delegate’s decision and accordingly, the Tribunal was correct in its conclusion that it had no jurisdiction to consider the further application for review.
I agree in the Minister’s submissions that the Act makes no provision for the waiver of the requirements which govern the entitlement to apply for review by the Tribunal of a Part 5 – Reviewable decision and that as there was no decision under review, the Tribunal was not required to invite the applicants to attend a hearing to give evidence or present arguments arising in relation to such a decision: Act, cf ss 357A, 360; SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940, [34] (Bennett J).
Conclusion
For the foregoing reasons, the application does not raise an arguable case for judicial review and should be dismissed: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a). While I accept the Minister’s submission that there is a paucity of evidence to make out the matters upon which the applicants’ substantive complaint was made, if such circumstances were properly demonstrated, they are of a kind that could be placed before the Minister in order that a more favourable decision might be made pursuant to s 351 of the Act.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 22 April 2021
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