Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 2868
•22 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAMAH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2868 |
| Catchwords: MIGRATION – Cancellation of subclass 457 visa – decision of the Administrative Appeals Tribunal – where the Tribunal’s failure to properly review the applicant’s application amounts to jurisdictional error – where, despite error, it would be futile to remit matter to Tribunal – application dismissed on the basis of futility. |
| Legislation: Migration Act 1958 (Cth), ss.37A, 38, 82, 116, 133, 134D, 349, 379A, 379C, 476 Migration Regulations 1994 (Cth), Condition 8107 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | AHMAD ABU SAMAH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 68 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 October 2020 |
| Date of Last Submission: | 20 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 22 October 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms B Rayment |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 68 of 2020
| AHMAD ABU SAMAH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Singapore. On 21 August 2017, the applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (the “visa”).
On 2 July 2018, the then Department of Home Affairs received an email from the applicant’s sponsor stating that the applicant’s employment had ceased on 27 June 2018 (Court Book (“CB”) 1).
On 6 February 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (the “NOICC”) (CB 3-7). The NOICC indicated that it appeared that the applicant had not complied with a condition of his visa and, as such, his visa could be cancelled pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (the “Act”). Specifically, it explained that the applicant appeared not to have complied with Condition 8107(3) of the Migration Regulations 1994 (Cth) (the “Regulations”) – which requires that the applicant must not cease employment for more than 60 consecutive days.
On 15 February 2019, the applicant responded to the NOICC as follows (CB 10-19):
…
I would like to highlight to the department/ committee that I have been living and contributing to the nation’s economy for over five years and five months now. Hence, my family and I feel that Australia is our home now.
I had submitted my intention to be considered for Permanent Resident (PR) back in 2015 and received an EOI no. E0006434382.
I had submitted my qualifications for assessment via VETASSESS which came back positive and had also taken four IELTS tests and one PTE test which eventually gave me points equivalent to Band 7 for all four categories (see attachments).
In my understanding, I had met the requirements of a valid visa as in the section 46 of the Migration Act, minimum requirements for the visa subclass 190 or the very least, visa subclass 489 are all met for the lodging of the EOI. I am still waiting for your department’s advise on proceeding to the next step of visa application process while holding the current visa subclass 457 which expires this coming 21 August 2019. The process was followed by me as per the instructions in your web page.
Having two Masters (an MBA and a MSc in Project Management) and vast experiences in the Oil and Gas industry and the Hospitality industry, I believe I would be an asset to Australia as I continue to work and contribute to the economy and community.
My wife and children would also be seen as future contributors to the economy and community in Australia as they thrive in school and education, including arts and sports. My daughter is a singer and music producer while my son is a soccer player. We are accustomed to Australia’s way of life and would like to request for the department/ committee to assist us in our pursuit for Permanent Residency
…
On 19 February 2019, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (CB 20-32). The delegate was satisfied that the applicant had not complied with Condition 8107(3)(b) and that the visa should be cancelled.
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 28 February 2019 (CB 33-35). The applicant attached a number of supporting documents (CB 36-53).
On 22 July 2019, the Tribunal invited the applicant to comment on or respond to information which indicated that no new business nominations had been approved in relation to his visa (CB 58-60). The applicant was also invited to address why the visa should not be cancelled.
No response was received.
On 21 August 2019, the applicant’s visa (which is the subject of this review) expired.
On 21 January 2020, the Tribunal affirmed the decision to cancel the applicant’s visa.
On 25 February 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is four pages long and spans 14 paragraphs.
The Tribunal began by explaining that the applicant was seeking review of the delegate’s decision to cancel the visa (at [1]). It noted that the delegate had determined that the applicant no longer met the requirements of Condition 8107(3)(b) (at [2]).
The Tribunal explained that the issue before it was whether the ground for cancellation was made out and, if so, whether the visa should be cancelled (at [2]).
The Tribunal then set out the contents of the invitation to comment and invitation to provide information that was sent to the applicant on
22 July 2019 (at [3]). The Tribunal noted that the applicant did not respond to that invitation (at [4]).
The Tribunal then summarised the scope of s.116 of the Act and noted that, if it was satisfied that the ground for cancellation had been made out, it would then consider whether to cancel the visa (at [6]).
In relation to whether a ground for cancellation existed, the Tribunal explained:
7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(b) attached to the applicant’s visa. Under this condition, “if the holder ceases employment – the period in which the holder ceases employment must not exceed 90 consecutive days”.
8. From the material before it, the Tribunal is satisfied of the following facts:
• The applicant was granted a Subclass 457 visa on 21 August 2017. It was originally valid to 21 August 2019 but was cancelled on 19 February 2019. This visa was sponsored by JGC Oceania Pty Ltd.
• The applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required in part:
i. that he must not cease to be employed by his approved sponsor; and
ii. that if he ceased employment, that the period must not exceed 60 consecutive days.
• The applicant ceased being employed by JGC Oceania Pty Ltd on or before 27 June 2018. On 19 February 2019, the date the applicant’s visa was cancelled, he had not worked for his sponsor for more than 60 consecutive days.
• There is no information to indicate that the applicant recommenced employment with your sponsor. Indeed, the opposite is true and that it was made clear to the applicant well in advanced that his role was coming to an end well before 21 August 2019. Indeed, an email from the JGC Oceania Pty Ltd Operations Manager to the applicant’s then migration agent noted that the applicant role was” ... coming to an end in 2018”.
• There is no evidence before the Tribunal that any new business nominations have been approved in respect of the applicant since his visa was cancelled.
9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
The Tribunal noted that there were no matters specified in the Act or Regulations which needed to be considered when determining whether to cancel the visa (at [10]). It also noted that it had had regard to the applicant’s particular circumstances and the materials before the Tribunal, including:
a)an untitled and undated document from the applicant that commenced with “Degree of hardship that may be caused to the visa holder or the visa holder’s family” – wherein the applicant had written that he was supporting himself on “odd jobs” in Darwin (at [10]);
b)correspondence between the applicant and the Commonwealth and Northern Territory Governments (at [11]); and
c)the extensive International English Language Testing System (IELTS) testing that the applicant had undertaken, in addition to his extensive vocational and academic qualifications (at [11]).
The Tribunal then stated:
12. The Tribunal observes that the delegate’s decision is very well-reasoned and seemingly comprehensive. Conversely, the Tribunal also observes that the applicant has not placed any new material before it that was not before the delegate. In these circumstances, the Tribunal does not see circumstances in which its discretion should be exercised.
13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal affirmed the decision to cancel the applicant’s visa.
Proceedings in this Court
In his application for judicial review filed on 25 February 2020, the applicant seeks the following relief:
1. Seeking to have the Court conduct a judicial review of the Administrative Appeals Tribunal’s decision.
2. Seeking to have the decision made by the delegate of the Minister be substituted with a more favourable outcome.
3. Seeking to be granted a permanent resident status.
The application for judicial review also contains four grounds of review, as follows:
1. The Administrative Appeals Tribunal (Tribunal) claimed that a recent check indicated that no new relevant business nominations have been approved in respect of Mr. Ahmad Abu Samah (the Applicant) since the visa was cancelled. The Applicant had received a number of employment offers. However, the removal of visa subclass 457 and the new requirements for business nominations had made it impossible for the potential employers to proceed with the hiring of the Applicant.
2. The Tribunal also claimed to have written to the Applicant on 22 July 2019 under ss.359A and 359(2) of the Act as an invitation to comment on or respond. However, the Applicant did not receive the Tribunal’s invitation via email, which was the main medium of correspondence and/or communication.
3. The Tribunal had also had particular regard to the various correspondences between the Applicant and the Commonwealth and Northern Territory governments. The Applicant was eligible for visa subclass 489 back in year 2016. However, the Applicant’s email to the officer at the NT Immigration department dated 19 December 2019 was not responded until January 2017 due to the Christmas and New Year holiday period. The Applicant’s birthday falls on 27 December and on 27 December 2016, the Applicant turned 45. This had made the Applicant ineligible to proceed with the Permanent Residency application due to the age limit.
4. The Tribunal also noted the extensive International English Language Testing System (IELTS) and the Pearson Test of English (PTE) testings that the Applicant had undertaken both in Singapore and Australia, in addition to his extensive vocational and academic qualifications which include two Masters i.e. Master of Business Administration (University of Wales) and Master of Science in Project Management (University of Salford). The Applicant hope to be given the opportunity to continue in contributing to the growth of the nation’s economy should the Applicant is granted a Permanent Resident status.
The applicant also filed an affidavit affirmed on 25 February 2020. Annexure 3 to that affidavit is titled “ADMINISTRATIVE APPEALS TRIBUNAL – QUESTIONS AND ANSWERS”. The Court notes that this annexure is reproduced at CB 36-39. Nothing arises from the applicant’s affidavit which requires consideration here.
The applicant was given an opportunity to file an amended application, affidavit evidence and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review filed on 25 February 2020, a Court Book numbering 66 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 28 September 2020.
The applicant appeared before the Court without legal representation. The applicant did not have a copy of the Court Book or the Minister’s submissions with him. He confirmed, however, that he had received both documents. The Court gave the applicant a copy of the written submissions and noted that if reference was made to the Court Book, either the Court or Counsel for the Minister would explain the relevance of the material referred to. The Court is satisfied that the applicant was able to actively engage with the Court and articulate any concerns he has with the Tribunal’s decision.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought 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 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].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is 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 applicant explained that he did receive job offers during the 60-day period after his employment ceased. However, potential employers were not willing to sponsor the applicant. The applicant indicated that he recognised that the 457 visa was no longer available to him. He expressed concerns with the 60-day time period imposed by the legislation and stressed that what has occurred to him has caused considerable hardship.
The Court does not doubt the sincerity of the applicant’s submissions. Unfortunately, the oral submissions made generally fail to address the issue of jurisdictional error.
Consideration
Judicial Review Application
The Relief Sought
In his judicial review application, the applicant seeks the following relief:
1. Seeking to have the Court conduct a judicial review of the Administrative Appeals Tribunal’s decision.
2. Seeking to have the decision made by the delegate of the Minister be substituted with a more favourable outcome.
3. Seeking to be granted a permanent resident status.
In relation to the first request, the Court exercises jurisdiction under s.476 of the Act. As such, it is undertaking a review of the Tribunal’s decision.
In relation to the second request, the Court has no jurisdiction to review the delegate’s decision. Substituting a more favourable decision is a matter for the Tribunal – not this Court: the Act, s.349(2)(d).
Finally, the Court has no power to grant the applicant permanent resident status.
The Court is restricted to determining whether the Tribunal fell into jurisdictional error. The only relief that the Court can grant relates to the Tribunal’s decision on review.
To the extent that the applicant seeks orders in relation to the delegate’s decision or his visa status, the Court cannot assist him in this regard.
Ground 1
Ground 1 of the judicial review application provides:
The Administrative Appeals Tribunal (Tribunal) claimed that a recent check indicated that no new relevant business nominations have been approved in respect of Mr. Ahmad Abu Samah (the Applicant) since the visa was cancelled. The Applicant had received a number of employment offers. However, the removal of visa subclass 457 and the new requirements for business nominations had made it impossible for the potential employers to proceed with the hiring of the Applicant.
The Court is not unsympathetic to the concerns raised here.
The purpose of Condition 8107 is to allow a visa holder the opportunity to arrange for a new sponsor and to get all relevant approvals within the prescribed time frame (here, 60 days).
Unfortunately, as a result of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (which abolished the class of visa that the applicant held), the applicant could not (and now will never be able to) obtain a new sponsor or a relevant approval.
The fact that the changes to the legislation meant that the applicant could not comply with Condition 8107 after his employment ended is indeed unfortunate. However, this does not amount to jurisdictional error on the part of the Tribunal.
The applicant also made a general oral submission that the period of 60 days was “unfair”. The period of 60 days was prescribed by the Regulations. The Tribunal was unable to extend the period. Therefore, again, this does not amount to jurisdictional error on the part of the Tribunal.
The Court notes that the Tribunal did state that the period of unemployment under Condition 8107 was “90 days” (at [7]). This was incorrect. However, this error is not material. It is, the Court accepts, a typographical error. The Tribunal had correctly referenced the 60-day period in the invitation to comment. Accordingly, nothing arises from this error.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 of the judicial review application provides:
The Tribunal also claimed to have written to the Applicant on 22 July 2019 under ss.359A and 359(2) of the Act as an invitation to comment on or respond. However, the Applicant did not receive the Tribunal’s invitation via email, which was the main medium of correspondence and/or communication.
The applicant claims that he did not receive “the invitation to comment and provide information” that was sent to him by the Tribunal on 22 July 2019. At the hearing, the applicant stressed that “just because an email is sent, this does not mean it has been received”.
The invitation was sent to the applicant via email. Email is a method specified in s.379A of the Act and it was open to the Tribunal to use this method of communication over another method: Minister for Immigration & Border Protection v Kim [2014] FCA 390.
The Tribunal used the email address that the applicant had specifically stated in his application for review to the Tribunal (CB 33-34). The email was, therefore, the “last email address... provided to the Tribunal…in connection with the review”: the Act, s.379A(5)(b) and (d).
As the Tribunal sent the invitation by email to the correct email address, the applicant is deemed to have received the email at the end of the day that it was sent to him: the Act, s.379C(5). This is so whether or not the applicant did in fact receive the invitation: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13].
Notwithstanding the applicant’s statement that he did not receive the invitation, legislatively he is deemed to have done so.
Accordingly, ground 2 is dismissed.
Ground 3
Ground 3 provides:
The Tribunal had also had particular regard to the various correspondences between the Applicant and the Commonwealth and Northern Territory governments. The Applicant was eligible for visa subclass 489 back in year 2016. However, the Applicant’s email to the officer at the NT Immigration department dated 19 December 2019 was not responded until January 2017 due to the Christmas and New Year holiday period. The Applicant’s birthday falls on 27 December and on 27 December 2016, the Applicant turned 45. This had made the Applicant ineligible to proceed with the Permanent Residency application due to the age limit.
Ground 3 does not take issue with the Tribunal’s decision. Rather, it details the difficulties the applicant has faced in trying to obtain permanent residency. Unfortunately, those difficulties are not relevant to the Court’s task on judicial review. The Tribunal’s reference to those documents was not material to the issue before it.
Ground 3 is, accordingly, dismissed.
Ground 4
Ground 4 provides:
The Tribunal also noted the extensive International English Language Testing System (IELTS) and the Pearson Test of English (PTE) testings that the Applicant had undertaken both in Singapore and Australia, in addition to his extensive vocational and academic qualifications which include two Masters i.e. Master of Business Administration (University of Wales) and Master of Science in Project Management (University of Salford). The Applicant hope to be given the opportunity to continue in contributing to the growth of the nation’s economy should the Applicant is granted a Permanent Resident status.
Again, the applicant does not take issue with the Tribunal’s decision. Rather, he is referring to his quest for permanent residency. The Tribunal’s reference to these documents was, again, not material.
No error arises in this regard.
Ground 4 is, accordingly, dismissed.
Otherwise
In its duty to the self-represented litigant, the Court has remained astute and alert to any possible error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. The Court has been assisted by the Minister in this regard, who made detailed submissions on an issue the Minister had identified and which the applicant had not raised.
The Minister’s submissions state that there is a likelihood that the Tribunal failed to perform its statutory task and fell into jurisdictional error.
The Court agrees.
The Tribunal’s consideration of the exercise of the discretion is, with respect, skeletal and arguably factually incorrect.
The following paragraphs are of note:
10. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised earlier by the applicant. Of particular note, the Tribunal has had particular regard to the untitled and undated document by the applicant that commences “Degree of hardship that may be caused to the visa holder or the visa holder’s family”. The Tribunal is concerned that at the time of writing that the applicant was supporting himself on “odd jobs” in Darwin.
11. The Tribunal has also had particular regard to the various correspondences between the applicant and the Commonwealth and Northern Territory governments. The Tribunal also notes the extensive International English Language Testing System (IELTS) testing that the applicant has undertaken, in addition to his extensive vocational and academic qualifications.
12.The Tribunal observes that the delegate’s decision is very well-reasoned and seemingly comprehensive. Conversely, the Tribunal also observes that the applicant has not placed any new material before it that was not before the delegate. In these circumstances, the Tribunal does not see circumstances in which its discretion should be exercised.
13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Two issues arise from the above.
First, the Tribunal states that the applicant had not provided any information that was not before the delegate (at [12]). This is incorrect. At least two pieces of evidence that the Tribunal had particular regard to (the correspondence between the applicant and the Northern Territory Government and the submission) were not before the delegate (CB 36-53).
The Minister submits that it is clear that the Tribunal had regard to the new information and that the statement about the applicant not having provided any further information to the Tribunal was a misstatement.
The Court agrees.
The Minister concedes, however, that a further, more problematic issue, arises from the Tribunal’s conclusion at [12]. In effect, it is submitted, the Tribunal adopted the delegate’s decision without the required level of analysis and, in so doing, failed in its statutory duty to review the delegate’s decision.
As explained by the Minister:
29.The Tribunal’s consideration of whether the visa should be cancelled rested entirely on its observation that the delegate’s decision was “very well-reasoned and seemingly comprehensive” (CB 65-66, [12]) … The Tribunal then found that: “[i]n these circumstances, the Tribunal does not see circumstances in which its discretion should be exercised”: CB 65-66, [12].
…
31.… the Tribunal did not engage with the case before it in any meaningful way and instead relied on its erroneous assumption that there were no new materials before it to conclude that it did not “see circumstances in which its discretion should be exercised”: CB 65-66, [12]. The only finding of fact that the Tribunal appeared to make in its consideration of the discretion was that the applicant did not place any new material before it, which was incorrect. Whilst it recorded that it had “had regard to the circumstances of this case, including matters raised earlier by the applicant” (CB 65, [10]), and cited some pieces of evidence before it (CB 65, [10]-[11]), it did not make any findings of fact on these matters, nor engage in a weighing exercise of factors for or against the cancellation.
32.Accordingly, it appears that the Tribunal failed to perform its statutory task of review as required by s 348 of the Act which required the Tribunal to consider whether or not the visa should be cancelled, having regard to all the relevant circumstances.
The Court agrees. The Tribunal’s “conclusion” is based on its assessment that the delegate’s decision was “very well-reasoned” and “seemingly comprehensive”.
The use of the word “seemingly” here suggests that the Tribunal has taken but a cursory approach in relation to the materials before it.
The Tribunal’s “findings” in this regard do not amount to an active consideration of the issue at hand (i.e., whether the visa should be cancelled) – an active consideration that is required before it can be concluded that the visa should be cancelled.
The Court agrees with the Minister that the Tribunal failed to exercise its jurisdiction. It did not comply with its statutory duty to “review” the delegate’s decision.
Jurisdictional error has, accordingly, been established.
Futility
While the Minister accepts that the Tribunal has fallen into error, the Minister also submits that it would, in any event, be futile to remit the matter to the Tribunal. Accordingly, it is argued, the Court should withhold relief.
The Minister advances two arguments in this regard:
a)the applicant ceased being employed by the sponsor on
27 June 2018 and there is no evidence before the Court that the applicant had an approved nomination at the time of the Tribunal’s decision. As the applicant cannot obtain a new sponsor, remittal would be futile; and/orb)the applicant’s visa would have ceased on 21 August 2019. Even if the matter were remitted to the Tribunal and the Tribunal decided not to cancel the visa, the applicant would no longer hold the visa.
The applicant himself states that he could not obtain a sponsorship due to the relevant legislative changes.
The Court does not entirely agree with the Minister’s first argument. The applicant breached Condition 8107. The relevant issue is thus whether or not to cancel the visa. The applicant does not require a sponsor for resolution of that issue. While it may be a relevant consideration, it is not a requirement for the exercise of the discretion.
However, the Minister’s second argument has force.
The visa which the applicant seeks review of expired on 21 August 2019 (CB 10).
Section 68(3) of the Act provides:
When visa is in effect
…
(3) A visa can only be in effect during the visa period for the visa.
…
The applicant’s statement to the Tribunal was that his visa expired (that is, the end of the “visa period”) was 21 August 2019.
Section 82 of the Act provides:
When visas cease to be in effect
…
(7)A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
…
(10)For the purposes of subsections (5), (6) and (7), particular date includes:
(a) the date an event, specified in the visa, happens; or
(b) the date the holder ceases to have a status specified in the visa or the regulations.
Sections 37A, 133 and 134D of the Act allow the Minister to extend the period in which a visa is in effect. Notably, none of these provisions relate to the particular circumstances here (i.e., they do not relate to a Safe Haven Enterprise visa, the applicant is located in Australia and the cancellation was not an “emergency cancellation”).
Accordingly, there appears to be no statutory power to extend the visa if the matter is remitted. Put simply, if the Court remits the matter and the Tribunal finds in the applicant’s favour, it would be of no utility as the applicant’s visa has ceased and would no longer be in effect.
It is noted that in Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256, Justice French (as His Honour then was) considered an application for judicial review of a decision to refuse a bridging visa. The refusal of the bridging visa was made by a delegated officer on 4 June 1999. The Tribunal affirmed the decision on 24 June 1999. The applicant sought judicial review of the decision
On judicial review, the applicant was claiming that a decision on his application was not made within the required two-day limit and he was therefore deemed by the Act to have been granted the bridging visa (and the refusal was invalid). The Minister’s argument was that the visa was refused within the required time. Relevantly, the visa that the applicant was stating that he was deemed to have been granted was in effect for, at most, 14 days from the date of the grant of the visa.
His Honour made findings that the visa was refused on 4 June 1999 and that this was within the two day time period. Therefore, the applicant was not deemed to have been granted the visa. His Honour continued:
21. If my conclusion be wrong and a Bridging Visa E was granted, then the visa has long expired and there is no useful purpose to be achieved by making any order in relation to the decision of the Tribunal or the purported decision to refuse the grant of a bridging visa made by Mr Cain. That is only a hypothetical question, of course, because I have found on the balance of probability that, in fact, he made the decision within the two days. Even if he had not, I would consider that the relief which is sought would at this stage be futile…
Here, the visa has “long expired”. It expired over one year ago.
In Patel v Minister For Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister For Home Affairs & Anor [2018] FCCA 1179, this Court found that in circumstances where the student visas under review had expired, it would be an exercise in futility to grant relief as any relief would have no practical consequence.
These Court sees no reason for the same not to apply here. It would, in the particular circumstances of this case, be futile to remit the matter to the Tribunal.
Conclusion
While the applicant’s judicial review application does not identify any jurisdictional error, the Minister in accordance with its model litigant obligations has accepted that there is an error in the Tribunal’s decision.
The Court agrees with that assessment.
Despite this, however, the Court is of the view that any remittal of the matter to the Tribunal would be futile.
Accordingly, the Court exercises its discretion to withhold relief.
The application is, accordingly, dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 22 October 2020
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