Saoud v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 122

•

23 February 2023

Federal Circuit and Family Court of Australia

(DIVISION 2)

Saoud v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 122

File number(s): MLG 1432 of 2019
Judgment of: JUDGE LAING
Date of judgment: 23 February 2023
Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant Employer Nomination (Permanent) (Class EN) (Subclass 186) visas – whether the Tribunal denied the applicants procedural fairness – whether the Tribunal relevantly erred in not granting an adjournment – where the Applicant claimed that his purported signature on a form purporting to appoint a Migration Agent had been forged – where remittal would be futile – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 360, 360A, 362B, 362B(1A), 363(1)(b), 379A(5), 379C(5), 426A(1A)

Migration Regulations 1994 (Cth) reg 4.21, cl 186.223

Cases cited:

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 45

KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464

Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536 at [26]

Singh v Minister for Immigration & Anor [2019] FCCA 1614

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

Division: Division 2 General Federal Law
Number of paragraphs: 35
Date of hearing: 13 February 2023
Place: Sydney
Solicitor for the Applicants The first, second, third, fifth and sixth applicants appeared by video-link. No appearance by the fourth applicant.
Solicitor for the First Respondent Ms M. Richardson (Sparke Helmore) appeared by video-link

ORDERS

MLG 1432 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

TAHA SAOUD

First Applicant

FADIA RAJAB

Second Applicant

AHMAD SAOUD (and others named in the Schedule)

Third Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE LAING

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

INTRODUCTION

  1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicants Employer Nomination (Permanent) (Class EN) (Subclass 186) visas (186 visas).

    BACKGROUND

  2. The first applicant in these proceedings (Applicant) is a national of Lebanon. In June 2016, he applied for the 186 visas on the basis of a nomination lodged by his proposed employer (Business). The Applicant’s wife and children applied as members of the family unit.

  3. By letter dated 11 January 2017, the Applicant was invited to comment on information that the nomination had been refused. This, it was noted, would mean that his visa application would be unable to be approved.  The letter also advised that if a declaration form relating to payment for visa sponsorship was not completed, then the visa application would be considered invalid. On 19 January 2017, the applicants’ then migration agent (First Agent) provided the requisite form but did not otherwise address the matters raised in the letter.

  4. The Delegate refused the 186 visa application on 16 February 2017. The Delegate observed that the Business did not have an approved nomination in place for the Applicant and that the nomination relied upon had been refused. Accordingly, the Delegate found that the criterion in cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.

  5. On 22 February 2017, the applicants applied for review of the Delegate’s decision by the Tribunal.

  6. On 9 November 2018, the Tribunal wrote to the applicants noting that the First Agent’s registration had been suspended. On 23 November 2018, the Tribunal was notified of the appointment of a new agent (Second Agent). On 3 December 2018, the Second Agent requested that any hearing in the matter not occur during a period of office closure ending on 8 January 2019. 

  7. On 7 March 2019, in a letter sent via the Second Agent, the applicants were invited to comment on information that the Tribunal had affirmed the decision refusing the nomination. This information was noted as being relevant to the review because it was a requirement for the grant of the visa that the position specified in the visa application be the subject of an approved nomination. If the nomination were not approved, then a requirement for the visa would be unable to be met with the result that the decision under review would be affirmed.

  8. On 17 March 2019, the Second Agent responded advising that “the nominated company will be seeking a Federal Circuit Court appeal.”

  9. On 25 March 2019, the Tribunal sent via the Second Agent an invitation to attend a hearing before the Tribunal on 10 April 2019. There was no appearance for the applicants at the hearing.

  10. On 10 April 2019, the Tribunal affirmed the Delegate’s decision.

    ReLEVANT CRITERION

  11. The criterion at issue before the Tribunal was cl 186.223 of Schedule 2 to the Regulations, which provided:

    (1)      The position to which the application relates is the position:

    (a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457... visa; and

    (c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)     Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)The position is still available to the applicant.

    (5)The application for the visa is made no more than 6 months after the Minister approved the nomination.

    TRIBUNAL’S DECISION

  12. The Tribunal set out the background to the matter at [1]-[10] of its decision, including the invitation to comment it had sent to the Second Agent and their “single sentence” response referring to review by the Federal Circuit Court (as it was) in respect of the nomination decision. 

  13. The Tribunal stated that the applicants had been invited to a hearing which they had not attended, with no reason for the non-appearance having been given (at [12]). The Tribunal considered whether to exercise its discretion to adjourn the review under s 363(1)(b) of the Migration Act 1958 (Cth) (Act) as follows (at [13]-[19]) (footnotes omitted):

    13.The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

    14.In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs1 and Manna v Minister for Immigration and Citizenship2 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li3 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh4 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection5 where analogous issues were discussed.

    15.The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.186.223 of the Migration Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

    16.The Tribunal has had regard to the fact that the application was refused by the Department on 16 February 2017 because there was no approved nomination. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over two years of the reasons for the visa refusal.

    17.The Tribunal has also had regard to the brief response to the 359A letter (referred to in paragraph 6) which did not provide any substantive response to the matters contained in the Tribunal's letter or relating to this applicant's Tribunal review.

    18.In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant can meet cl.186.223. The Tribunal is not disposed to delaying making a decision indefinitely

    19.Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that cl.186.223 can be met.

  14. The Tribunal then set out the criterion in issue at [22]-[23], before reasoning as follows at [24]-[29]:

    24. As contained in the delegate's decision (a copy of which was provided to the Tribunal on review) on 11 January 2017, the nomination lodged by Exquisite Touch Painting Pty Ltd, being the nomination referred to in cl.186.223(1) was refused by a delegate of the Minister for Immigration and Citizenship.

    25. On 22 February 2017 the nominator, Exquisite Touch Painting Pty Ltd, lodged an application for Tribunal review of that decision and it was affirmed by the Tribunal.

    26. It is a requirement for the grant of a visa that the position specified in the visa application is the subject of an approved nomination. As the nominator's application for the nominated position has not been approved, the Tribunal finds that the position specified in the applicant's visa application is not the subject of an approved nomination.

    27. Therefore, cl.186.223 is not met.

    28. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    29. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the secondary applicants as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

  15. On this basis, the Tribunal affirmed the Delegate’s decision (at [30]).

    Proceedings before this court

  16. The applicants commenced the proceedings before this Court through an application filed on 10 May 2019. The following was stated under the heading “Grounds of application” (reproduced verbatim):

    1.        The Tribunal failed to take into consideration a relevant matter in its decision.

    a.The Tribunal's decision, did not take into consideration that the applicant was not in attendance at the hearing and that his claims could not be expanded upon.

    b.This resulted in a decision affected by jurisdictional error.

    2.The Tribunal failed to afford the applicant natural justice and procedural fairness.

    a.The Tribunal's decision did not afford the applicant natural justice and procedural fairness.

    b.There were no attempts on the Tribunal's behalf to further contact the applicant.

    c.The applicant was denied an opportunity to provide further evidence in support of their application for review.

    d.A decision from the Tribunal due to the applicants' absence at the hearing denied the applicant natural justice and procedural fairness.

    3.The Tribunal incorrectly exercised its legal duty under s 363(1)(b) of the Migration Act to grant the applicant an adjournment.

    a.The Tribunal's decision did not adequately exercise its duty under s 363(1)(b) of the Act.

    b.The Tribunal made a decision not to grant an adjournment based only on an unfounded analysis that the matter did not have any favourable prospects of success.

    c.The Tribunal in its failure to exercise its power under s 363(1)(b) of the Act did not take into consideration the circumstances of the applicant and denied him natural justice and procedural fairness.

    d.The applicant was denied an opportunity to provide further evidence in support of their application for review.

    e.The Tribunal's incorrect exercise of its power under s 363(1) constitutes jurisdictional error.

    4.The Tribunal applied its discretion illogically to make a decision on the application under review under s 426A(1A) of the Migration Act

    a.Under s 426A(1A) of the act the Tribunal may make a decision on the information before them or dismiss the application.

    b.The applicant advised the Tribunal that he was not making an appearance.

    c.The discretion to make a decision on the application was illogical in the context of it being made on the basis of unanswered questions.

    d.S 426A applies if the applicant was scheduled for an appearance at the Tribunal but did not make the appearance.

    e.The Tribunal denied the applicant and opportunity to have their matter re-instated and for them to provide evidence.

    f.The Tribunal subsequently made a decision which was not based on evidence.

    g.Therefore resulting in jurisdictional error.

    The pleaded grounds

  17. Essentially, the pleaded grounds took issue with the Tribunal’s decision not to adjourn the review, but to proceed to a decision after the applicants did not attend the scheduled hearing.

  18. Ground 1 contended that the Tribunal failed to take into account that the Applicant did not attend the hearing and his claims could therefore not be expanded upon. This cannot be sustained on the face of the Tribunal’s decision. As set out earlier, the Tribunal observed that the applicants had not attended the hearing and proceeded in some detail to consider whether or not it ought to proceed to a decision on the available evidence, or adjourn the review to allow the applicants further opportunity to provide evidence (at [12]-[19]).

  19. Ground 2 contended that the applicants were denied procedural fairness on account of the Tribunal’s decision to proceed without providing the Applicant with further opportunity to provide evidence. However, the Tribunal’s procedural fairness obligations were limited under Part 5 of the Act. Subject to what I discuss below in relation to what was ultimately claimed regarding the Second Agent, the Tribunal appears to have invited the applicants to a hearing in accordance with s 360 of the Act. The invitation appears to have complied with the requirements of s 360A of the Act in that notice of the day, time and place of the hearing was given, that was in excess of the minimum prescribed period in reg 4.21 of the Regulations. The notice contained a statement to the effect of s 362B of the Act. The notice was transmitted by email to the last email address purportedly provided on behalf of the applicants in connection with the review, pursuant to s 379A(5) of the Act. If this is accepted, then the invitation would have been taken to have been received on 25 March 2019: s 379C(5) of the Act.

  20. The question, insofar as it was raised by the pleaded grounds, therefore became that raised by grounds 3 and 4, namely, whether it was reasonably open to the Tribunal to have declined to adjourn the matter, and to have instead proceeded to a decision in the manner that it did. Ground 3 alleged that, in this regard, the Tribunal erred in not granting an adjournment under s 363(1)(b) of the Act, which empowered the Tribunal to “adjourn the review from time to time”. Ground 4 referred to s 426A(1A), which did not apply to the review, but most likely intended to refer to its counterpart in s 362B(1A). That provision empowered the Tribunal to take certain actions in response to an applicant’s non-appearance at hearing. These included dismissing the application, or, as the Tribunal elected to do in this case, proceeding to make a decision on the review without taking any further action to allow or enable the applicant(s) to appear before it.

  21. These provisions provided the Tribunal with a discretion as to how it was to proceed. That discretion had to be exercised reasonably.

  22. Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464 at [43]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions.

  23. Subject to what I say below regarding the Second Agent, I would not have been persuaded that the high threshold for such a ground was capable of being met in the present case. The Tribunal’s reasons at [12]-[19] provided an “evident and intelligible justification” as to why the Tribunal proceeded in the manner that it did.

  24. Notwithstanding what was suggested in the particulars under ground 4, there is no evidence that the applicants advised the Tribunal that they would not attend the hearing. To the contrary, the Tribunal considered at [12] of its decision that no reason for the non-appearance had been received. This is supported in the evidence before the Court.

  25. The Tribunal had regard to relevant case law regarding the boundaries of its discretion at [14]. It considered the context of the non-appearance, including that the applicants had been on notice for some years of the basis for the visa refusal (i.e. because there was no approved nomination). The Tribunal considered that it had written to the applicants pursuant to the procedure in s 359A regarding affirmation of the nomination refusal. The “brief response” did not provide a substantive response to the issue, but instead indicated that “the nominated company will be seeking a Federal Circuit Court appeal.” The Tribunal, reasonably, was not disposed towards delaying its decision indefinitely in circumstances where it was “uncertain if and when” the applicants would provide information regarding their ability to meet the criterion in issue and the Tribunal considered that they had been given a fair opportunity to provide relevant information (at [15]-[18]).

    Matters raised in the Applicant’s affidavit and at hearing

  1. In an affidavit accompanying the application to this Court, the Applicant contended that his previous representative’s conduct disadvantaged them, with the representative taking advantage of their limited knowledge. In this regard, the Applicant stated that their previous representative did not notify them of the hearing and did not advise them of his communications with the Tribunal.

  2. This was expanded upon, substantially, at the hearing by the fifth applicant. The fifth applicant submitted that the Second Agent had not been appointed by his family and that they had no knowledge of him prior to the Tribunal’s decision. The fifth applicant submitted that the First Agent had taken a substantial amount of money from the family, and that the Applicant’s purported signature on the form purporting to appoint the Second Agent had been forged. The Applicant supported the fifth applicant’s submissions.

  3. The fifth applicant also submitted that the situation was unfair and had caused his family significant difficulties, stress and harm. He told the Court that the nomination had been through his uncle, who had owed the Business. The Business has since been sold and is therefore not proposing to nominate anyone in the family. He submitted that the family had sought to do the right thing, but had been taken advantage of by unscrupulous migration agents.

  4. It is difficult not to have considerable sympathy for this family and the position they are now in. As I discussed with the parties, I was prepared to consider allowing the applicants additional time to put forward evidence of what had occurred. If the applicants’ submissions in this regard were supported by evidence, then that evidence could potentially demonstrate the species of issue considered in cases such as SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE). 

  5. However, my main concern regarding this course was the futility argument that had been raised by the Minister. The Minister submitted that remittal would be futile because if the matter were to be remitted, the Tribunal would be obliged to affirm the Delegate’s decision because the Applicant would be unable to satisfy cl 186.233. This argument, insofar as it relates to the 186 visa cohort, and the related 187 visa cohort, has been upheld in a number of cases: see for example Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 (Singh FC) at [44]-[45] and [81]-[90] per Mortimer J (Jagot J, as her Honour was, and Bromberg J agreeing); Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536 at [26]; Singh v Minister for Immigration & Anor [2019] FCCA 1614 at [81]-[87] and Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 45 at [55]. Whilst a similar argument was recently rejected in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 (KC) at [51]-[54], that case involved a different criterion (cl 457.223), and different circumstances.

  6. The applicants ultimately did not seek further opportunity to evidence what they had submitted regarding the Second Agent. The evidence before the Court (in affidavit form) is not sufficient to meet the threshold in SZFDE. This is because, without the context of the signature said to have been forged in support of an unauthorised appointment, the matters raised in the Applicant’s affidavit do not demonstrate dishonesty or fraud (as distinct from poor practices or negligence).

  7. Regardless, in the present case, the applicants have conceded that the Business is no longer proposing to nominate them as it has since been sold by their family member. For the reasons given in Singh FC at [89]-[90], the Applicant is unable to rely upon another nomination. In these circumstances, I accept the Minister’s submission that this matter is distinguishable from KC and that adjourning the proceedings would have potentially exposed the family to additional costs without the possibility of a successful outcome before the Tribunal. This is because they now cannot meet cl 186.233, which is an essential criterion for the grant of the visas. 

  8. The relief sought in the application before this Court would not have been granted in these circumstances.

    conclusion

  9. For these reasons, the application before this Court must be dismissed.

  10. I will hear the parties in relation to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       23 February 2023

SCHEDULE OF PARTIES

MLG 1432 of 2019

Applicants

Fourth Applicant:

ADNAN SAOUD

Fifth Applicant:

ALAA SAOUD

Sixth Applicant:

MOUSTAFA SAOUD
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Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

2

Minister for Immigration and Citizenship v Li [2013] HCA 18
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30