Saini v Minister for Immigration
[2020] FCCA 2271
•20 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAINI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2271 |
| Catchwords: MIGRATION – Subclass 187 visa – decision of the Administrative Appeals Tribunal – where employer nomination withdrawn on late notice – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359AA, 360, 476 Migration Regulations 1994 (Cth), cl.187.233 of Schedule 2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | GURWINDER SINGH SAINI |
| Second Applicant: | JATINDER KAUR SAINI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 71 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 17 August 2020 |
| Date of Last Submission: | 17 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 August 2020 |
REPRESENTATION
| Applicants: | The applicants appeared in person |
| Counsel for the First Respondent: | Ms J Tran |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 71 of 2020
| GURWINDER SINGH SAINI |
First Applicant
| JATINDER KAUR SAINI |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first and second applicant are husband and wife respectively. Both applicants arrived in Australia on 7 August 2009 on a student visa (Court Book (“CB”) 103-108).
On 24 August 2016, the first applicant applied for a Regional Employer Nomination (Permanent) (subclass 187) visa (the “visa”). He applied for the position of “Office Manager” with “Jaguar Facility Services Pty Ltd” (the “sponsor”). The second applicant was included in the visa application as a migrating family member. The applicants were assisted by a migration agent (CB 1-47).
On 9 October 2017, the then Department of Immigration and Border Protection invited the applicants to comment on information that indicated that a decision to refuse the sponsor’s nomination had been made and that, as such, the applicants could not be granted the visa (CB 66-70).
On 27 October 2017, the sponsor sought review of the decision to refuse the nomination at the Administrative Appeals Tribunal (the “Tribunal”) (CB 76-77).
On 3 November 2017, the applicants’ migration agent responded to the invitation to comment. He asked that the visa application remain “unfinalized” until the sponsor’s appeal to the Tribunal had been determined (CB 71-77). On 16 November 2017, the Department advised that the applicants’ visa application could not be placed “on hold” as requested (CB 78).
On 17 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa. The delegate found that the first applicant did not meet cl.187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) because he was not the subject of an approved nomination. As the first applicant did not meet the primary criteria, it followed that the second applicant also failed to meet the visa criterion (CB 87-96).
On 29 November 2019, the applicants applied to the Tribunal for review of the delegate’s decision to refuse the visa (CB 97-98).
On 6 December 2019, the Tribunal invited the applicants to attend a hearing scheduled for 19 December 2019.
The applicants’ migration agent asked the Tribunal to postpone the hearing. On 12 December 2019, the Tribunal granted an adjournment and advised the applicants that the hearing had been rescheduled for 30 January 2020 (CB 116-119).
On 24 January 2020, the sponsor withdrew the appeal relating to the sponsorship decision (CB 138 at [12]).
On 28 January 2020, the Tribunal contacted the applicants’ migration agent. The Tribunal advised that the sponsor had withdrawn their application and that the sponsor’s business had been sold (CB 120 and CB 122). On the same day, the first applicant advised that he was no longer assisted by a migration agent (CB 124-125).
On 30 January 2020, the applicants attended a hearing before the Tribunal (CB 126-132).
On 31 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 134-140).
On 27 February 2020, the applicants applied to this Court for review. The application for judicial review is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to succeed in this Court, the applicants must establish that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 21 paragraphs.
The Tribunal began by setting out the background to the application. The overview provided included details of the type of visa applied for and the basis of the delegate’s decision (at [1]-[7]).
The Tribunal identified that the relevant issue before it was whether the first applicant satisfied the requirements of cl.187.233 (at [8]). The Tribunal then set out the requirements of that clause, as follows:
9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
10. In addition, this criterion also requires that:
• the person who will employ the applicant is the person who made nomination
• the nomination has been approved and has not been subsequently withdrawn
• there is no adverse information known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information.
• the position is still available to the applicant, and
• the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal then stated as follows:
12.On 28 January 2020 the Tribunal decided that it did not have jurisdiction to make a decision under review in respect of the nomination under r.5.19 in the related case-file number 1726414. This is because the employer nominator in that matter had withdrawn the appeal against the decision to refuse the nomination for the position relating to the applicant on 24 January 2020. This means the delegate’s decision dated 9 October 2017 refusing the nomination in that matter remains in effect.
The Tribunal put to the applicants that the sponsor had withdrawn from the appeal relating to the sponsorship decision and explained that, as a result of that withdrawal, the Tribunal no longer had jurisdiction and the first applicant could not satisfy the relevant provision for the grant of the visa (at [13]-[16]).
The Tribunal notes that the first applicant responded as follows:
17. The applicant responded straight away in relation to the information put. He was aware already that the nominating employer had earlier withdrawn the appeal against the refusal of the nomination. He explained that he was 47 years old and that this was his ‘last chance’ to obtain a visa but understood, after further discussion, that the relevant criteria must still be satisfied. The applicants confirmed to the Tribunal that they understand and accept that in circumstances where there is no approved nomination, it would not be possible for their visa applications to be successful as an approved nomination for the position is one of the essential criteria (cl.187.233(3)).
The Tribunal concluded that there was no evidence before it that the nomination was approved so as to satisfy the requirement of cl.187.233(3) of Schedule 2 of the Regulations (at [18]-[19]).
Accordingly, the Tribunal affirmed the decision not to grant the applicants the visa (at [20]).
Proceedings in this Court
The applicants’ application for judicial review dated 27 February 2020 contains three grounds of review, as follows:
1. Ignoring materials the decision-maker was required to looked at:
At the tribunal hearing, I had all the proof at my disposal to pursue my case but I came to know before the hearing commence, my employer told me that he had withdrawn the case just two-three days ago. I was surprised to when I came to know this. This gives me no time to act in my defence so that I can present my arguable case. So when the member asks me that do you know that your employer had withdrawn the case then I said yes. We had a joint appearing with another visa applicant which was also sponsored by my employer.
2. Reaching a decision that is unreasonable in the legal sense:
Despite knowing this that if I did not give a chance to find another employer due to immediate withdrawn of the nomination, I will lose my case.
3. Relying on materials the decision-maker should not have looked at:
The member just looked at the nomination side but not looked at the nominee side. Decision maker should consider my age factor as I have surpassed the 47 years after which I can not apply for permanent visas. I should be given the chance to find another employer to sponsor me in the limited timeframe. But instead this didn’t happen.
(Without alteration)
The applicants were given an opportunity to file any amended application, any further affidavit evidence and an outline of written submissions. No further materials were filed.
The materials before the Court are thus limited to the judicial review application dated 27 February 2020, a Court Book numbering 140 pages (marked as exhibit 1) and an outline of written submissions filed by the Minister on 3 August 2020.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the second applicant. The Court confirmed with the applicants that they had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. 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].
To assist the applicants, the Court explained to them 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].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa being sought. 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.
Against this background, the first applicant provided a background to the review before the Tribunal. He explained that “the circumstances changed before the Tribunal as the nomination had been withdrawn” and that he did not “have a chance to support his application as the sponsor had withdrawn.” Further, he only “came to know the nomination was withdrawn at the start of the hearing” before the Tribunal. The first applicant felt that he should be given “a chance in light of the changed circumstances”.
The Court will address these submissions below.
Consideration
The judicial review application uses “headings” to identify a category of jurisdictional error and provides “particulars” as to how the Tribunal fell into that error. Unfortunately, the “particulars” provided do not always relate to the grounds identified by the associated heading. Noting the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392, the Court will (in its duty to assist unrepresented applicants) respond to the grounds as stated, address any alternative grounds which better relate to the particulars provided and address an additional issue relating to procedural fairness (which appears to be at the core of the application as a whole).
Ground 1
By ground 1, the applicants appear to suggest that the Tribunal “ignored” the fact that there had been a withdrawal of the sponsor’s application and that, as a result, the applicants did not have time to prepare their case. The first applicant’s oral submissions to this Court repeated this concern.
To the extent that ground 1 (and the Minister’s interpretation of ground 1) can be considered an allegation of procedural unfairness, or that the Tribunal acted unreasonably in failing to adjourn the matter so that the applicants could provide further relevant materials, the Court will consider this below.
Here, however, the Court will consider whether the Tribunal “ignored the fact that there had been a late withdrawal of the relevant sponsorship”.
The first applicant’s sponsor withdrew its application to the Tribunal on 24 January 2020. The applicants’ application was heard on 30 January 2020.
The late withdrawal of the sponsor’s application is unfortunate. The applicants were clearly “caught off guard”. Unfortunately, the fact that the sponsor waited until very late in the piece to withdraw its application is not relevant in so far as it goes to the issue of jurisdictional error and an alleged failure to consider relevant materials.
The Tribunal was only required to consider whether the applicants met the visa criterion. This was the only “relevant consideration” (even in circumstances where there had been a “late withdrawal” of the sponsor’s appeal against the decision to refuse the nomination for the position relating to the first applicant).
The first applicant also suggests in ground 1 that he had “all the proof at [his] disposal” prior to the sponsor withdrawing its application. It appears the applicants are suggesting that the Tribunal should have considered the materials that “prove” their case.
Again, all that the Tribunal was required to consider was whether the first applicant met the relevant visa criterion at the time of the decision. The fact that the first applicant may have had “proof” that he previously met the criterion was, unfortunately, no longer relevant. Once the sponsor had withdrawn its application the first applicant could not “prove” that he had a nomination at the time of the decision.
Ground 1 is dismissed.
Ground 2
Ground 2 suggests that the Tribunal acted unreasonably because it knew that the sponsor had withdrawn the application and did not give the applicants an opportunity to find another employer or present further materials in that regard.
The applicants misunderstand the nature of the relevant visa requirements and to the extent that the applicants are suggesting that the Tribunal should have allowed them a chance to find another employer, this must be rejected.
The applicants could not “find” another employer. Their visa application was “tied” to the sponsor’s nomination. Upon the sponsor’s nomination being withdrawn, the applicants were unable to satisfy the relevant criteria. This was the case whether or not they obtained a new employer. The visa application required the approval of the sponsor’s nomination. No other employer could be substituted: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[90] (“Singh”).
In circumstances where any “chance” provided by the Tribunal to find an employer would have been futile, it cannot be said to be unreasonable not to have given additional time to find an employer. The same can be said for granting an adjournment to provide further material. “More time” in this context would not have assisted the applicants.
Ground 2 is dismissed.
Ground 3
Ground 3 suggests that the Tribunal relied on irrelevant material by looking at the “nomination side” but not the “nominee side”. The first applicant’s oral submissions to this Court repeated his concern that the Tribunal failed to consider the “change of circumstances” and stressed that the Tribunal simply focussed on the withdrawal, rather than the circumstances as a whole.
The Tribunal was required to consider the “nomination side” in determining whether the applicants could be granted the visa. Clause 187.233 makes it plain that the “nomination side” is a relevant consideration. On this basis alone the ground is not made out.
The Court assumes, by virtue of the wording of the particulars in ground 3, that the first applicant is arguing that the Tribunal failed to take into consideration his personal circumstances. The first applicant’s personal circumstances (for example, his age), or the applicants’ “personal circumstances generally” (for example, the ability to obtain a permanent visa) were not relevant to the Tribunal’s determination. As noted, a nomination is a mandatory criterion. There is no discretion to waive this requirement, no matter how compelling the personal circumstances advanced.
Ground 3 is dismissed.
Procedural Fairness
Reading the grounds of application as a whole, it is clear is that the first applicant believes he did not have adequate time to prepare for the Tribunal hearing because of the sponsor’s late withdrawal in the review process. It can be inferred that the applicants believed that the hearing should have been rescheduled. The first applicant explained to this Court that the Tribunal did not ask them if they needed “more time”. The first applicant also indicated that everything happened “so fast”.
The question here is whether the applicants were denied procedural fairness throughout the Tribunal review process.
Again, while unfortunate, the fact that the sponsor withdrew very late in the piece and the Tribunal “refused” to accommodate the applicants’ concerns in this regard (because, legislatively, it could not do so), does not give rise to any error on the part of the Tribunal.
Further, the applicants were invited to, and did, attend a hearing as is required by s.360 of the Act. At that hearing, the Tribunal put to the applicants, pursuant to s.359AA, that the sponsor’s nomination had been withdrawn and that without evidence of an approved nomination the visa could not be granted.
Despite what the applicants now appear to claim, the Tribunal also did advise the first applicant that additional time to comment or respond could be requested. The applicant responded “straight away”. No request for an adjournment or extra time was made.
At the hearing, the first applicant stated that the Tribunal did not ask him whether he needed further time. There is no evidence before the Court to suggest that the Tribunal failed to ask the applicants whether they needed more time to respond to the information put to them under s.359AA. While the applicants felt that things were moving “too fast”, there is nothing to suggest that the applicants were not given a real and meaningful opportunity to participate. Further, the Act does not create an obligation on the part of the Tribunal to reschedule a hearing when a sponsor withdraws from a review and that decision impacts an applicant’s case.
On the evidence before the Court, it cannot be said that the Tribunal failed to give the applicants procedural fairness as required by div.5 of pt.5 of the Act.
Futility
Clause 187.233(3) of Schedule 2 to the Regulations requires the first applicant to have, at the time of Tribunal’s decision, an approved nomination. This criterion can only be satisfied by approval of the original nomination which accompanied the visa application. It cannot be assessed against a new nomination application subsequently lodged by the employer: Singh at [88]-[90].
As the relevant nomination here was refused on 11 April 2017, and the sponsor withdrew from the review at the Tribunal, on remittal the applicants could not, in any event, satisfy cl.187.233. Remittal would thus be futile.
Conclusion
The applicants have failed to establish any jurisdictional error in the Tribunal’s decision. Additionally, remittal would be futile in the circumstances of this case.
The Court is not unsympathetic to the concerns the applicants raise. On the materials before the Court they have done nothing wrong. Unfortunately, because of the relevant visa criterion here, there was simply nothing the Tribunal could do to assist them.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 August 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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