Salh & Anor v Minister for Immigration & Anor
[2019] FCCA 2096
•1 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2096 |
| Catchwords: MIGRATION – Subclass 457 Business (Long Stay) visa – effect of 2018 amendments to Migration Regulations 1994. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider all material evidence. ADMINISTRATIVE LAW – No jurisdictional error if denial of procedural fairness not material to decision. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.140GB, 357A, 359, 360, 368, 474 Migration Regulations 1994, sch.2 cl.457.223 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252 |
| First Applicant: | AMRIT KAUR SALH |
| Second Applicant: | JAGJIT SINGH SALH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1283 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 July 2018 |
| Date of Last Submission: | 16 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr T Bagley |
| Solicitors for the Applicants: | MyVisa Lawyers |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1283 of 2015
| AMRIT KAUR SALH |
First Applicant
| JAGJIT SINGH SALH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants are citizens of India who are wife and husband respectively. On 6 February 2013 the first applicant applied to what is now the Department of Home Affairs (“Department”) for a Temporary Business Entry (Class UC) subclass 457 Business (Long Stay) visa. The application was made on the basis of the first applicant’s proposed employment in the nominated occupation of café or restaurant manager and included the second applicant as a member of her family unit. On 24 December 2013 a delegate of the first respondent (“Minister”) refused the application on the basis that the first applicant did not meet satisfy cl.457.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
The criteria for the grant of a subclass 457 visa were found in pt.457 of sch.2 to the Regulations. A primary criterion which had to be satisfied at the time a decision was made on the application was cl.457.223(4)(e). At all material times, it relevantly provided as follows:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
…
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; …
At all material times ss.357A, 359, 360 and 368 of the Act relevantly provided:
Division 5—Conduct of review
357A Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
…
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
368 Tribunal’s decision and written statement
Written statement of decision
(1)Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
…
BACKGROUND FACTS
Delegate
As indicated earlier, the first applicant’s visa application was made on the basis that she would be employed in the nominated occupation of café or restaurant manager. The first applicant provided the following information in her application form:
a)she was employed as an assistant banquet manager from August 2000 to November 2002 and as a banquet manager from December 2002 to October 2008;
b)from February 2010 to the date of her application in February 2013, she was employed as a “Class Directress” in two different schools; and
c)she obtained her Bachelor of Commerce in 1988 and her Master of Commerce in 1990 from Kurukshetra University.
Various documents in support of her application were provided, including documents from a previous earlier employer and documents from Kurukshetra University.
On 27 June 2013 the Department wrote to the first applicant and advised her that it had conducted checks to confirm the information she had provided in her application. It invited her to comment on information it had received during this process to the effect that her Master of Commerce degree was fraudulent.
The first applicant responded on 25 July 2013. Relevantly, she claimed that she had completed her master’s degree from the university through Harkrishan Chand Raithkhana College (“College”), which she said was an affiliated institution. She provided letters from the university and the College, dated 20 and 25 February 2013 respectively, confirming her bona fides as a student.
On 12 November 2013 the Department wrote to the first applicant and invited her to comment on the following information:
On the 17/09/2013 the overseas post in New Delhi conducted checks on your qualifications to confirm if they were genuine
…
On the 06/11/2013 the overseas post received an email from the certificate section from the university confirming that the roll no and regd number are not in series. The university confirmed that they were unable to confirm the applicants [sic] records. It is evident that the applicant has provided fraudulent educational documents.
A copy of the letter from Kurukshetra University which contained that information (“University Letter”) was reproduced in the Court Book which was Ex.A.
On 1 December 2013 the first applicant wrote to the Department and reiterated that she had completed her university qualifications through the College. She claimed that she had been shocked by the university’s inability to verify her records and that their “administrative bungle” had had a significant impact on her. She further claimed that even if her master’s degree was not taken into account, given her eight years of relevant industry experience she still satisfied the 457 skills requirements for the nominated occupation.
The delegate refused the applicants’ visa application on 24 December 2013, relevantly finding that the master’s degree testamur provided by the first applicant had been fraudulently obtained. In light of this, the delegate also felt unable to place any weight on the first applicant’s alleged eight years’ relevant experience. As a result, the delegate was not satisfied that the first applicant had demonstrated that she had the skills necessary to perform the nominated occupation, as required by cl.457.223(4)(e).
Tribunal
On 6 January 2014 the applicants applied to the Tribunal for a review of the delegate’s decision.
On 11 November 2014 the Tribunal wrote to the Department saying:
For this review, the Tribunal Member seeks a copy of the verification checks conducted by the Department regarding the applicant's qualifications.
According to a case note on ICSE dated 12/11/2013 for this visa application, the New Delhi post received an email from the certification section of the university. This email is not on the Department's file. Could we be sent ASAP by email a copy of this email from the university plus anything else relevant to the verification checks conducted regarding the qualifications. …
On 19 November 2014 the Department replied by email, attaching a copy of the University Letter.
On 24 November 2014 the Tribunal wrote to the applicants and advised them that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to attend a hearing on 22 December 2014 but that hearing was postponed to 18 February 2015 at the applicants’ request.
Following a further request for a postponement, the Tribunal wrote to the applicants on 17 February 2015 and advised them their hearing had been rescheduled to 26 March 2015. The Tribunal indicated that a further postponement was not likely to be granted and, if the applicants did not attend the hearing, a decision on their application could be made without further notice. The Tribunal also invited the applicants to provide evidence that the first applicant had the skills necessary to perform the occupation of café or restaurant manager.
On 26 March 2015 the first applicant emailed the Tribunal a letter in which she stated, relevantly:
The degree that I provided to the department was based on the education which I did with the university back in 1990. After all these years it came as a shock to me that the university where I studied no longer existed and my degree did not hold any value. I had no idea about this until I was informed by the department. …
I have never nor will I ever do anything against the law. … None of this was done intentionally; I was not given the right guidance and unfortunately I am facing the consequences. (emphasis added)
Tribunal’s findings and reasons
The applicants did not attend the hearing on 26 March 2015. In the circumstances, and pursuant to s.362B of the Act as it stood at the time, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicants to appear before it.
On 10 April 2015 the Tribunal affirmed the decision of the delegate not to grant the applicants subclass 457 visas. In doing so, it noted that decision in the following terms:
4.The delegate refused to grant the visas on 24 December 2013 on the basis that cl.457.223(4)(e) was not met because the delegate found that the applicant had submitted fraudulent documents to show she has a Masters of Commerce. The delegate gave no weight to the applicant's claimed experience for 8 years as a banquet manager.
In considering for itself whether the first applicant satisfied cl.457.223(4)(e), the Tribunal had regard to the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) which, for the nominated occupation of café and restaurant manager, referred to a general indicative skill level of an associate degree, advanced diploma or a diploma, or in lieu three years’ relevant experience.
The Tribunal noted the first applicant’s letter of 26 March 2015, saying:
… on the basis of the visa applicant's letter of 26 March 2015 in which the applicant states that the university where she obtained her qualification is no longer in existence, the Tribunal is of the view that it is not possible to verify the qualifications. The applicant also writes that her degree holds no value and on this basis the Tribunal is not satisfied that the visa applicant has a qualification equal to an advanced Diploma or Diploma.
The Tribunal was also not satisfied that the first applicant had an employment background suitable for the occupation of café and restaurant manager and was unable to make positive findings about it.
Overall, the Tribunal was not satisfied that the first applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. For these reasons, it found that she did not satisfy the requirements of cl.457.223(4)(e) for the grant of the visa.
PROCEEDINGS IN THIS COURT
In their amended application the applicants alleged:
1.The Second Respondent fell into jurisdictional error, in making the Decision, by contravening sections 357A and/or 359 of the Migration Act 1958 (Cth).
Particulars
(a)On or about 11 November 2014, the Second Respondent sought and obtained a copy of verification checks conducted by the Department of Immigration and Border Protection regarding the First Applicant’s qualifications.
(b)Among the verification checks was a document received by the New Delhi office (or “post”) of the Department from Kurukshetra University:
i. indicting [sic] that the educational record of the First Applicant could not be verified “due to Roll No. & Regn. No. are not in series”; and
ii. stating “please supply the original DMCs/Degrees for further necessary action”.
(c)The tribunal was obliged, pursuant to sub-section 359(1) of the Act, to have regard to that document, and the information contained in it, in making the decision under review, but failed to do so.
2.The Second Respondent’s exercise of power in making the Decision was legally unreasonable because the following findings of the Second Respondent had no logical, rational or probative basis:
(a)that the Applicant’s university was no longer in existence;
(b)that it was not possible to verify the Applicant’s qualifications;
(c) that the Applicant had stated that her degree holds no value.
Ground 1
Submissions
In support of the first allegation, the applicants noted that the Tribunal had used its powers under s.359 of the Act to obtain the University Letter from the Department. They submitted that the Tribunal had therefore been obliged by s.359(1) of the Act to have regard to the information contained in the University Letter but had not. The applicants also submitted that s.357A(3), which required the Tribunal to act in a way that is fair and just, had also obliged it to have regard to the University Letter and its contents.
The applicants’ argument was that the Tribunal could not have made the statement quoted above at [22], if it had read the University Letter given that that letter evidenced the continuing existence of the Kurukshetra University. The applicants further submitted that it could be inferred from the Tribunal’s failure to mention the University Letter in its decision record that it had not had regard to it.
The Minister submitted that absence from the Tribunals’ reasons of any reference to the University Letter did not necessarily mean that regard had not been had to it because s.368 of the Act only relevantly required the Tribunal’s reasons to refer to the evidence or other material on which findings of fact were based. He argued that as the Tribunal had not based its decision on the information in the University Letter it had not been obliged to refer to it.
Further, argued the Minister, s.359(1) relevantly required only that the Tribunal have regard to information it obtained, not that it refer to that information in its reasons. Moreover, argued the Minister, the fact that s.359(1) empowered the Tribunal to get any information that it considered relevant did not mean that information obtained pursuant to that power was necessarily relevant to the Tribunal’s decision such that s.368 of the Act required that it be cited in the Tribunal’s reasons. The Minister submitted that:
The [University Letter] was ‘relevant’ in the sense that it was a document relating to the verification of the applicant’s degrees at the Kurukshetra University. However, ultimately, the Tribunal drew conclusions adverse to the applicant that were different from those of the delegate, and did not rely upon the content of the [University Letter]. It is for this reason that the [University Letter] does not feature in the Tribunal’s reasons. … The absence of reference to the [University Letter] does no more than indicate that the Tribunal did not consider the content of the [University Letter] to be material to its decision.
The Minister also submitted that even if the Tribunal had failed to have regard to the University Letter, no jurisdictional error was made out because no practical injustice resulted from such failure. He argued:
… the [University Letter] cannot have had any bearing on the Tribunal’s conclusion that it was not possible to verify the applicant’s qualifications because on the applicant’s evidence the University no longer existed. Had the [University Letter] suggested either (a) that as at 2015 the University was in existence, or (b) that the University had verified the applicant’s degrees as genuine, then a failure to have regard to the [University Letter] might have occasioned injustice to the applicant. However, the [University Letter] did not contain any such information.
Discussion
It is plain, as a matter of fact, that the Tribunal did not refer to the University Letter of its decision record. It is also uncontroversial that the failure of the Tribunal to refer expressly to particular evidence does not necessarily amount to jurisdictional error given that s.368 only required it to refer the evidence on which findings of fact were based.
It is also true that the University Letter was not necessarily relevant to the Tribunal’s finding that it was not satisfied that the first applicant had a qualification equal to a diploma or an advanced diploma because that finding was based on what the first applicant had said in her letter of 26 March 2015 and could be reached without reference to the University Letter. However the relevance of the University Letter to that finding is not the crucial issue. The crucial issues are:
a)whether the Tribunal’s decision that it was no longer possible to verify the first applicant’s qualifications and her degree was worthless indicates that it did not have regard to the University Letter and so breached ss.357A(3) and 359(1) of the Act; and
b)if so, whether such a breach amounts to jurisdictional error.
The Tribunal appears to have accepted unquestioningly the first applicant’s assertions it was no longer possible to verify her qualifications, and that her degree was worthless, and to have been uninterested in, and to have placed no weight on, her statement that the information she had concerning the existence of her university had been provided by the Department and that it had come as a shock to her. The Tribunal was entitled to accept the first applicant’s evidence concerning her university. More importantly, the University Letter did not contradict that evidence and, as was noted earlier, was not necessarily relevant to its acceptance. That being so, the appropriate inference to draw, particularly as the Tribunal was aware of the basis of the delegate’s decision, is that the Tribunal had regard to the University Letter but made no reference to it because it was not relevant to the finding in question.
However, if I am wrong in that conclusion, for the reasons he advanced I accept the Minister’s argument that a failure by the Tribunal to consider the University Letter does not amount to jurisdictional error because the applicants did not suffer practical injustice as a consequence. In that connection, it might also be noted that since judgment in this matter was reserved, the High Court has published its decision in Minister for Immigration & Border Protection v SZMTA (2019) 93 ALJR 252. In that case the majority said that the “rigidity” of provisions such as s.359(1) is ameliorated by s.357A(3) such that a breach of procedural fairness obligations will only amount to jurisdictional error if it is material to a decision in the sense that compliance with procedural fairness obligations could realistically have resulted in the review having a different outcome: see 261–263 [27]–[45].
Ground 2
The burden of the second ground of the amended application was that the Tribunal should have disbelieved what the first applicant said in her letter of 26 March 2015. For the reasons already given the Tribunal was entitled to accept what she said and to find accordingly, as it did.
Futility
The Minister also submitted that even if the Tribunal had erred, it would be futile to remit the matter for rehearing as the Tribunal would have no alternative but to affirm the delegate’s decision because of changes made to the subclass 457 visa regime in the period following the review the subject of his proceeding.
Were the matter to be remitted, the Act’s present version of s.140GB would apply to it. That section relevantly provides:
140GB Minister to approve nominations
(1)A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2)The Minister must approve a person’s nomination if:
…
(ab)in any case—the person is an approved work sponsor; and
(b)in any case—the prescribed criteria are satisfied.
(3)The regulations may establish a process for the Minister to approve a person’s nomination.
…
Currently, reg.2.72 of the Regulations relevantly provides:
2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
Application of this regulation
(1) This regulation applies in relation to a person who:
(a) is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
… and
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
…
That version of the regulation is based on replacement wording introduced by item 79 of sch.1 to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 with effect on and from 18 March 2018. Since that date reg.2.72 has relevantly applied only to persons who already hold a subclass 457 visa: item 6704(6) of sch.1 to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. Subsequent amendments (Migration Amendment (Skilling Australians Fund) Regulations 2018, Migration Amendment (Temporary Sponsored Parent Visa and Other Measures) Regulations 2019 and Migration Amendment (New Skilled Regional Visas) Regulations 2019) have not altered that situation.
Currently, reg.2.73 of the Regulations relevantly provides:
2.73 Process for nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
Application of this regulation
(1)This regulation applies in relation to a person who is nominating a proposed occupation under paragraph 140GB(1)(b) of the Act in relation to any of the following (the nominee):
(a)a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(b)a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(c)an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of subsection 140GB(3) of the Act, the person may nominate a proposed occupation in accordance with the process set out in this regulation.
…
That version of the regulation is based on replacement wording introduced by item 80 of sch.1 to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 with effect on and from 18 March 2018. Since that date reg.2.73 has relevantly applied only to persons who already hold a subclass 457 visa: item 6704(7) of sch.1 to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. Subsequent amendments (Migration Amendment (Skilling Australians Fund) Regulations 2018, Migration Amendment (Temporary Sponsored Parent Visa and Other Measures) Regulations 2019 and Migration Amendment (New Skilled Regional Visas) Regulations 2019) have also not altered that situation.
Consequently it is now no longer possible for a person to obtain an approved nomination under s.140GB of the Act, and most critically regs.2.72(1) and 2.73(1) of the Regulations, to support a 457 visa application which remains to be finally determined. So, even were the matter to be returned to the Tribunal, the applicants’ situation would be no better than it is now.
In the circumstances, I accept the Minister’s argument that remittal of the matter to the Tribunal, even if jurisdictional error had been found, would be futile and so in the exercise of discretion constitutional writs would not be issued in this matter.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 1 August 2019
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