Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 94
•29 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94
File number(s): PEG 77 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 29 September 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether “all the circumstances” of the applicant’s case were taken into account – whether the applicant was afforded procedural fairness – whether there was any bias on the part of the Tribunal – whether the Tribunal should have granted the applicant the extension of time requested – whether the Tribunal was required to ask the Minister to exercise discretionary powers – no jurisdictional error – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 8 and 131
Migration Act 1958 (Cth), ss 5, 65, 66, 351, 366, 417, 474, 476
Cases cited: AFG20 v Minister for Immigration & Anor [2020] FCCA 1361
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) HCA 24; (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
Singh v Minister for Immigration and Border [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378
SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 110 Date of last submission: 9 September 2021 Date of hearing: 27 August 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 77 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RICKY LEE SEARLE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 SEPTEMBER 2021
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: This copy of the Court’s Reasons for judgment may be subject to review 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 KENDALL:
INTRODUCTION
The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 17 March 2021. The Tribunal affirmed a decision made by a Ministerial delegate to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) (Regional Sponsored Migration Scheme) visa (the “visa”) under s 65(1)(b) of the Migration Act 1958 (Cth) (the “Migration Act”).
BACKGROUND
The applicant is a citizen of the United Kingdom (Court Book (“CB”) 22). On 11 November 2016, he applied for the visa (CB 21-65).
The applicant sought the visa on the basis of his employment with Berriman Resources Pty Ltd ATF the Nadia Family Trust (“Berriman Resources”) (CB 59-60) with a nominated occupation of “Building Associate” (CB 33).
The nomination submitted to the then Department of Home Affairs (the “Department”) by Berriman Resources (listing the applicant as their nominee) was refused on 19 February 2018 (CB 111). Subsequent merits review proceedings in relation to that decision were ultimately withdrawn by Berriman Resources (CB 131).
On 19 February 2018, the Department invited the applicant to comment on information it had received that the nomination submitted by Berriman Resources (listing the applicant as their nominee) had been refused. Unfortunately, this meant that the applicant’s visa application could not, without further information, be approved (CB 85-88).
The Department sent the invitation to comment to the applicant’s first migration agent. Unfortunately, no response was received from the applicant or his agent.
On 10 March 2018, the applicant’s first migration agent stopped representing the applicant (CB 93 & 97-100).
The applicant appointed a second migration agent on 10 March 2018 (CB 91-93).
On 4 April 2018, the Department sent a “fresh” invitation to comment to the applicant’s new migration agent, again explaining that it had received information that the nomination submitted by Berriman Resources had been refused (CB 101-105).
No response or comment from the applicant was forthcoming.
On 10 May 2021, the Department contacted the applicant’s second migration agent asking that they advise by close of business on 11 May 2018 whether the applicant wished to withdraw his visa application (CB 106).
There was no response from the applicant in relation to that correspondence.
On 14 May 2018, a Ministerial delegate refused to grant the applicant the visa on the basis that there was no approved nomination in place as required by cl 187.233(3) of the Regulations (CB 110-113).
The applicant was notified of the refusal that day in accordance with s 66 of the Migration Act (CB 107-109).
On 27 May 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 114-115).
On 16 February 2021, the Tribunal sent the applicant an “invitation to attend a hearing by telephone”. The applicant was asked to complete a “Response to Hearing Invitation form” (CB 119-122).
The applicant provided a completed response to the hearing invitation to the Tribunal on 17 February 2021 (CB 123-125).
On 23 February 2021, the Tribunal invited the applicant to comment on or respond to the following information (CB 130-132):
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The application for approval of the nominated position made by Berriman Resources Pty Ltd ATF the Nadia Family Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but they have now withdrawn that application for review. This means that the nominator’s application for the nominated position has not been approved.
The applicant was advised that any “comment or response” should be received by the Tribunal by 9 March 2021.
On 2 March 2021, the applicant emailed the Tribunal and asked for a 6-8 week extension within which to respond on the basis that he had appointed a new lawyer (CB 133).
On 3 March 2021, the Tribunal refused the applicant’s request for an extension of time, advising the applicant as follows: (CB 134-136):
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.
On 23 February 2021 we sent you an invitation to comment on or respond to information.
On 2 March 2021 we received a request for an extension of time to provide the comments or response.
We have considered the request carefully but have decided not to grant an extension of time. The decision before the Tribunal is restricted to a single-issue. Having considered the nature of the issue, the Tribunal does not consider that additional time would be necessary. The comments or response must therefore be received by 9 March 2021, as previously advised.
On 7 March 2021, the applicant sent the Tribunal an email containing the following annexures (CB 137):
(a)A letter from the Australian Securities & Investments Commission (ASIC) dated 29 February 2020, indicating that the applicant had registered "Pro Build Perth" as a business name (CB 138-139);
(b)An employment contract between Pro Build Perth (ABN 41 641 751 626) and the applicant dated 15 June 2020 (and signed by the applicant as the employer and employee) (CB 140-147);
(c)A payslip from Pro Build Perth to the applicant dated 4 March 2021 (CB 148); and
(d)material relating to the applicant’s employment with Berriman Resources – namely, an employment contract dated 31 October 2016 (CB 150-151) and payslips for February-April 2020, June 2018, June 2017 and December 2016 (CB 152-159).
On 8 March 2021, the applicant gave the Tribunal a character reference from family friends and an affidavit sworn by the applicant (CB 160-164). The following day, he provided further material relating to his company, “Pro Build Perth” (CB 165-166).
On 17 March 2021, the applicant attended a hearing before the Tribunal appearing via telephone. The hearing started at 9:37am and ended at 9:51am (CB 167-170).
On 17 March 2021, the Tribunal gave oral reasons affirming the delegate’s decision which refused to grant the applicant the visa (CB 171-175).
On 23 April 2021, the applicant requested a written statement of the Tribunal’s decision and reasons (CB 179).
On 4 May 2021, the Tribunal gave the applicant a written statement of its decision and reasons (CB 180-181).
On 19 April 2021, the applicant applied for judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration 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 written record of its oral reasons is two pages in length and spans 10 paragraphs.
The Tribunal began by identifying the type of visa under review (at [1]) and noted that it had handed down an oral decision at the hearing on 17 March 2021 (at [2]).
The Tribunal then determined as follows:
STATEMENT OF DECISION AND REASONS
3. On 11 November 2016, Ricky Lee Searle applied for a Subclass 187 visa in the Direct Entry stream, nominated by Berriman Resources Proprietary Limited. The application for approval of the nominated position made by Berriman Resources, was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but later withdrew the application.
4. On 23 February 2021, the tribunal wrote to Mr Searle and advised him of the withdrawal of the related nomination. The letter invited Mr Searle to comment on or respond to the information, and advised that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.
5. The letter finally advised that if the tribunal were to rely on the information in making its decision, it may find that the position specified in the visa application is not the subject of an approved nomination. This would mean that the application does not satisfy a requirement for the grant of the visa, and the tribunal must affirm the decision under review.
6. On 7 March 2021, Mr Searle wrote to the tribunal and provided details of a business he started. He also indicated in today's hearing that he would like the minister to consider his matter for intervention. As discussed with Mr Searle today, it is open to him to make that application, but based on the information before me, I do not see any unique or exceptional circumstances that would justify the tribunal making that referral on his behalf.
The Tribunal continued:
7. Clause 187.233 requires 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 to which the visa application relates must be the position in relation to which the declaration, mentioned in paragraph 1114C(3d) of schedule 1, was made. This requirement cannot be satisfied by a later nomination of a position made by a different employer.
8. In the current matter, the nomination application lodged by the applicant's employer was withdrawn, and no subsequent nomination applications were made. The applicant has acknowledged that he is not the subject of an approved or pending nomination in the Direct Entry stream. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream, no claims have been made in relation to the other streams.
9. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed. The tribunal affirms the decision not to grant the applicant a Regional Employer Nomination visa.
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [10]).
PROCEEDINGS IN THIS COURT
The applicant’s application for judicial review filed on 19 April 2021 provides one particularised ground of review, as follows:
1. The Tribunal made a jurisdictional error by not providing me with a fair hearing because they failed to consider the full merits of my circumstances and my case.
Particulars
(a)The Tribunal hearing was conducted by telephone and I could not tell if the Tribunal Member was giving consideration to my evidence.
(b)The Tribunal appeared to read from a pre-prepared oral decision, accordingly I do not believe the Tribunal conducted the hearing impartially.
(c)The Tribunal did not consider that I worked for the proposed nominator for a period of three years, therefore fulfilling the purpose of the Subclass 187 visa. This circumstance was dismissed, and the Tribunal did not give reasons for their views.
The applicant also filed two affidavits. The first affidavit, affirmed by the applicant on 16 April 2021 and filed on 19 April 2021, attached a copy of a transcript of the Tribunal hearing and relevantly provided as follows:
3. I believe the Tribunal made a jurisdictional error as I was not afforded a fair hearing because all the circumstances of my case were not taken into account.
4. On 17 March 2021, my hearing was conducted by telephone and at the conclusion of the hearing, I was provided an oral decision. This oral decision affirmed the Department of Home Affairs decision to refuse my Subclass 187 visa. I attach the record of the oral decision of the Tribunal dated 17 March 2021 (marked as Annexure “RLS1”) which I received by email on 17 March 2021.
5. I could not see the Tribunal Member during the hearing. This made it very difficult for me to follow what was going on.
6. The oral decision appeared to be read from a pre-prepared script and for this reason I do not believe the Tribunal was impartial when it conducted the hearing.
7. During the hearing, I gave evidence that I had already worked for the nominator for three years while my Subclass 187 visa was processing.
8. The Tribunal did not consider that I have already fulfilled the purpose of the Subclass 187 visa and appeared to dismiss this circumstance as not being relevant to my appeal. The Tribunal did not provide me with any legal reason for their dismissal of this circumstance.
The second affidavit filed by the applicant attached a transcript of the Tribunal hearing.
The applicant appeared before the Court on 27 August 2021 without legal representation. The Minister was represented by Mr Papalia.
The Court confirmed with the applicant that he had a copy of the Court Book and the Minister’s written submissions with him.
Noting the comments of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], and noting that the applicant was not represented, the Court gave the applicant an opportunity to explain his grounds of review and outline any concerns he might have with the Tribunal’s decision.
The Court first explained to the applicant that it could only address the issue of jurisdictional error. It was noted that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (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) HCA 24; (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] (“SZRUI”); 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 [2014] FCAFC 1; (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (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 applicant the visa that he seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant:
(a)explained that he was concerned that the Tribunal did not “take into account the COVID situation” (noting, in effect, that his former employer had to “drop him” because of the pandemic);
(b)did not understand why the Tribunal member was “laughing during the hearing” (referencing the Tribunal transcript);
(c)felt that the hearing was too short;
(d)felt that the Tribunal member “was reading from a script” and had “already made up her mind”; and
(e)felt that he had not been given an opportunity “to defend himself”.
The Court will consider these submissions below within the context of the applicant’s ground of review.
Following the hearing of this matter the Court identified an issue that had not, in the Court’s opinion, been fully addressed at the hearing. That issue related to the applicant’s request that the Tribunal ask the Minister to exercise the discretionary powers to grant the visa in question (the “Ministerial Discretion issue”) in light of the impact that COVID had had on his former employer.
The Court held a further directions hearing on 31 August 2021 and, after discussing this issue with the parties, gave the parties leave to file further written submissions addressing this issue. The Minister did so on 9 September 2021. Unfortunately, the applicant did not file any written submissions on this or any other issue before the Court.
The Ministerial Discretion issue is also addressed below.
The materials before the Court include the applicant’s application for judicial review filed on 19 April 2021 (which included an affidavit from the applicant affirmed on 16 April 2021), an affidavit from Catherine Emma Law sworn on 16 April 2021 and filed on 19 April 2021 (which provided a transcript of the Tribunal hearing), a Court Book numbering 181 pages (marked as Exhibit 1), written submissions filed by the Minister on 16 July 2021 and further written submissions from the Minister filed on 9 September 2021.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has interpreted the applicant’s grounds of review as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised. The Court has also considered for itself whether any error arises in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Having assessed the applicant’s sole ground of review (and particulars) and his oral submissions before this Court, the Court identifies the following possible “errors” as being raised by the applicant:
(a)“all the circumstances of his case” were not taken into account. Relevantly, the Tribunal failed to consider the fact that the applicant had previously worked for the proposed nominator for three years and his evidence generally about that employment;
(b)he was denied procedural fairness because the hearing was conducted via telephone (thus denying him the right to engage with the Tribunal and advance his case);
(c)the Tribunal was biased (as evidenced, the applicant claims, by the fact that the Tribunal member was “reading from a script” “appeared to have already made up hr mind” and was “laughing at” the applicant.
Whether “all the circumstances” of the applicants case were taken into account
In relation to this issue, the applicant alleges as follows:
The Tribunal did not consider that I worked for the proposed nominator for a period of three years, therefore fulfilling the purpose of the Subclass 187 visa. This circumstance was dismissed, and the Tribunal did not give reasons for their views.
The applicant repeats these concerns in his affidavit affirmed on 16 April 2021 (at [7] and [8]).
In relation to this issue, the Minister submits as follows in written submissions dated 16 July 2021:
34. The applicant’s argument that the Tribunal did not “consider” his evidence that he had worked for Berriman Resources for 3 years is of no moment. The Tribunal was not required in its reasons for decision to set out findings on questions of fact that were not material: see sub-s 368D(2)(a)(iii) in terms of the oral decision and sub-s 368D(4)(a) in terms of the subsequent written statement. That prior employment was not the determinative issue – rather sub-clause 187.223(2) of Sch 2 of the Regulations required the applicant to have an approved nomination in force. It is therefore irrelevant that the applicant worked for his previous employer, who had unsuccessfully sought the Minister’s approval of a nomination, and was therefore facts that did not need to be referenced in the Tribunal’s reasons for decision.
35.Moreover, the Tribunal was prevented by sub-s 349(4) of the Migration Act from “considering the purpose of the visa” divorced from the mandatory criteria for that visa set out in cl 187.2 of Sch 2 of the Regulations: see Migration Act sub-s 65(1).
The Court agrees with the Minister. The Tribunal did not fail to consider the “full merits of [the applicant’s] circumstances”.
The applicant’s evidence that he had worked for the nominator for three years was not relevant to the sole issue before the Tribunal – that is, whether the applicant was the subject of a valid nomination. Here, the nominator sought a review of the delegate’s decision to refuse the nomination but subsequently withdrew that application. The applicant confirmed this to be the case at the Tribunal hearing (CB 12). Without an approved nomination in place, the applicant did not, and could not, satisfy cl 187.233 of Schedule 2 of the Regulations. In that context, the fact that the applicant had worked for the nominator for three years was irrelevant to the issues before the Tribunal.
The applicant also states that the Tribunal did “not give reasons for its views”. This is factually incorrect. The transcript identifies that, when the Tribunal made its original decision, it did so orally and gave reasons for that decision (CB 15-16, 172). The applicant then requested a written statement of the oral decision (CB 179). The Tribunal complied with that request and produced a written statement of the decision and reasons on 4 May 2021 (CB 179). The applicant now has a copy of the written reasons and has, in the Court’s opinion, had ample time to consider it and critique it for error.
No jurisdictional error is identified in relation to this issue.
Procedural Fairness
The applicant claims that he was not afforded “procedural fairness” because “the Tribunal hearing was conducted by telephone and [he] could not tell if the Tribunal Member was giving consideration to [his] evidence. He claims further that he “could not see the Tribunal Member during the hearing” and “this made it very difficult for [him] to follow what was going on”.
In relation to this issue, the Minister submits as follows in written submissions dated 16 July 2021:
30. The applicant’s argument that he could not tell if the Tribunal was giving consideration to his evidence as the hearing was conducted by telephone is without basis. The Tribunal expressly considered the applicant’s evidence that there was no approved nomination in force in respect of his visa application.
31. Insofar as the applicant argues that he was not afforded a fair hearing due to the hearing being conducted by telephone, there was no objection by the applicant to the Tribunal proceeding in that way. Moreover, the Tribunal had the power and discretion to allow the hearing to proceed by telephone: see Migration Act sub-s 366(1); Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44] and the authority cited therein.
The Court agrees with the Minister for the following reasons.
Section 366 of the Migration Act permits the Tribunal to allow an appearance by an applicant before the Tribunal by telephone. The Tribunal exercised its discretion to do so (as per Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1378 at [65]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44]) and there is no evidence that that discretion was exercised unfairly or inappropriately.
On 16 February 2021, the Tribunal sent the applicant an invitation to attend a hearing by telephone (CB 119-122). The applicant was advised that “[i]f you are not able to participate in this telephone hearing, you need to advise us as soon as possible” (CB 121). The applicant contacted the Tribunal on 17 February 2021 to file his “Response to hearing invitation” (CB 123-125). The applicant did not answer the following question (CB 124):
Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing …?
The applicant contacted the Tribunal on 2 March 2021 (CB 133), twice on 7 March 2021 (CB 137-148 & 149-159), on 8 March 2021 (CB 160-164) and on 9 March 2021 (CB 165-166). The applicant did not inform the Tribunal on any of these occasions that he had any issues with the hearing proceeding by telephone.
The applicant also attended the hearing. There is no evidence in the transcript of proceedings that the applicant raised concerns with the hearing proceeding by telephone or informed the Tribunal that he was finding it “difficult … to follow what was going on” (CB 11-16). For the reasons outlined above (at [52] to [56]) there is also nothing to suggest that the Tribunal did not consider the “circumstances” that were relevant to the sole issue of concern to the Tribunal.
There is no evidence before the Court that the applicant was not afforded a fair hearing because the hearing was held by telephone.
Bias
The applicant stresses that “the Tribunal appeared to read from a pre-prepared oral decision” and that he does not “believe the Tribunal conducted the hearing impartially”. Further, in oral submissions to the Court, the applicant argued that the Tribunal “seemed reluctant to take his case” and “appeared to have already made up its mind”.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 (“Jia Legeng”) at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Here, the applicant seems to suggest, on one level, “actual bias” on the part of the Tribunal. He claims, for example, that the Tribunal was “scripted” and “appeared to have already made up its mind”.
In relation to any concerns about actual bias, as correctly noted by the Minister (at [32] of the submissions dated 16 July 2021), the applicant must show that the Tribunal's “state of mind” was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments represented: Jia Legeng at [71]-[72].
The applicant also seems to allege apprehended bias. In that regard, he references the fact that the Tribunal can be seen to have “laughed” at various times throughout the hearing and acted “impartially”.
Here, the applicant has failed to provide evidence of bias on the part of the Tribunal. The hearing transcript demonstrates that the applicant attended a hearing before the Tribunal via telephone, the Tribunal gave the applicant ample opportunity to make any submissions he might want to make, the applicant was given an opportunity to answer the Tribunal’s questions and the Tribunal invited the applicant to comment on information. The transcript also identifies that the Tribunal advised the applicant that it would be making a decision on the evidence before it, including the applicant’s evidence at the hearing (CB 12, 15).
It is well settled that giving of oral reasons does not indicate bias (SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 at [39]). Nor is there any evidence that the Tribunal relied solely on a “pre-determined text”. On the contrary, the transcript reveals a clear effort on the part of the Tribunal to assess all the evidence before it, including evidence presented at the hearing. The Tribunal’s reasoning is reflective and not indicative of a predetermination that lacks objectivity or impartiality.
In relation to the concerns raised about what appears to be evidence of the Tribunal “laughing at the applicant”, the Court notes the following.
The transcript reveals that the Tribunal does appear, oddly, to have “laughed” at various points throughout the hearing. Relevantly, the transcript provides as follows:
[TRIBUNAL]: There are very strict criteria as to when the Minister will and won’t intervene, um …
SEARLE: Yes, yes.
[TRIBUNAL]: I would have a look at that to make sure you address each of those criteria, because it does have to be something quite special [laughing] um …
SEARLE: I have, I have um, you know the only thing really that um, sort of my immigration lawyer basically said to me was um, that if I was to go down that road, that it would be basically you know, exceptional, it cannot be economic, scientific, cultural and other benefits that would result in the- for me to remain in Australia. And I was hoping that the Minister can see the grounds for that. Um, I actually went ahead with his company I just thought actually I’ll just hopefully you know, earn enough money for me to just in case this did happen, it was, you know, so I could go back to another country or go back home, but um, since then I’ve made this company quite successful and I’m fairly um, at the moment I have eight Australians um, full time employed, um so I’m hoping that they will look at that and see that as a benefit to the economy, but you know, I’m not too sure. I’m hoping so.
[TRIBUNAL]: Well I would also recommend that you contact the department to see if there’s currently any arrangements in place, given the COVID19 situation, um …
SEARLE: Yes.
[TRIBUNAL]: Yeah, because I’m not entirely sure what happens when you can’t actually return to the UK [laughing]. Um, as I said I mean my role is very much restricted to this in this review, um, and I think your situation unfortunately is not unique, um, because of the circumstances that you know, the world is facing at the moment.
SEARLE: Yes.
Contextually, it does strike the Court as “odd” (and most unfortunate) that the Tribunal is recorded as “laughing” when assessing what, for the applicant, is a most serious issue (that being the effect that COVID had on his former employer).
The transcript does not, however, evidence either insensitivity or an unwillingness on the part of the Tribunal or a failure to act impartially. If anything, it represents inexperience or a lack of skill on the part of the Tribunal when responding to questions from an unrepresented applicant. However, there is no evidence of malice or an unwillingness to engage with either the applicant or the issues of concern raised by him.
Overall, the evidence before the Court does not demonstrate that the Tribunal was not open to persuasion or conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case.
OTHER
Extension of time request
The Tribunal hearing was schedule for, and ultimately, occurred on 17 March 2021.
As noted above, on 23 February 2021, the Tribunal invited the applicant to comment on or respond to information that the application for approval of the nominated position made by Berriman Resources had been refused and the fact that, although Berriman Resources had initially sought a review of that decision, the company had ultimately withdrawn that application for review (CB 130-132).
The applicant was advised that any “comment or response” should be received by the Tribunal by 9 March 2021.
On 2 March 2021, the applicant emailed the Tribunal and asked for a 6-8 week extension within which to respond on the basis that he had appointed a new lawyer (CB 133).
If the applicant had been granted “more time” (6 to 8 weeks after 9 March 2021), the Tribunal would have needed to adjourn the hearing until at least mid-April 2021.
On 3 March 2021, the Tribunal refused the applicant’s request for “more time”, advising the applicant as follows: (CB 134-136):
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.
On 23 February 2021 we sent you an invitation to comment on or respond to information.
On 2 March 2021 we received a request for an extension of time to provide the comments or response.
We have considered the request carefully but have decided not to grant an extension of time. The decision before the Tribunal is restricted to a single-issue. Having considered the nature of the issue, the Tribunal does not consider that additional time would be necessary. The comments or response must therefore be received by 9 March 2021, as previously advised.
Noting that the applicant is unrepresented, the Court has considered for itself whether, in light of the email of 2 March 2021, it was “unreasonable” for the Tribunal not to grant the applicant more time to respond and provide the information requested in the invitation.
On the evidence, and given the sole issue before the Tribunal, the Court is satisfied that it was indeed reasonable for the Tribunal not to give the applicant “more time”. Relevantly:
(a)the sole issue before the Tribunal related to the fact that a nomination submitted by Berriman Resources (listing the applicant as their nominee) had been refused by a delegate and Berriman resources had withdrawn any appeal rights in that regard;
(b)a delegate had raised the lack of a valid nomination as a live issue on multiple occasions and, despite being given multiple opportunities to comment, the applicant had failed to do so;
(c)the applicant had been given ample time by the Tribunal to comment on the sole issue before the Tribunal; and
(d)no explanation had been provided to the Tribunal that would allow the Tribunal to be satisfied that any information that might assist the applicant would be forthcoming if more time was granted.
The Court notes that in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [80] her Honour Justice Mortimer stated:
…there was nothing in the facts and circumstances of this review which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer (unspecified) period of time before finalising the review.
That reasoning applies here. There was nothing in the facts and circumstances of this review – a review which, it is stressed, required the Tribunal to assess one, very narrow issue – which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer period of time before finalising the review.
Overall, the Tribunal is not required to indefinitely defer its decision-making process, particularly in circumstances where it does not appear any information would be forthcoming and where, as here, the Tribunal had seemingly been advised by the applicant that he did not have information that might assist him.
The Court is satisfied that the applicant was not treated unfairly when the Tribunal chose not to exercise the discretion to adjourn the review to allow the applicant additional time to provide further information in relation to whether there was a valid nomination. On the facts of this case, it was reasonable and open for the Tribunal to continue as it did.
Ministerial Discretion
As noted above, at a directions hearing on 31 August 2021, the Court made further orders that the parties file and serve further written submissions in relation to the issue of “Ministerial discretion”.
The background to this issue is detailed in further written submissions filed by the Minister on 9 September 2021. Those submissions (which the Court adopts) provide, relevantly, as follows.
Before the Tribunal the applicant acknowledged that the issue before the Tribunal was whether there was an approved nomination. He noted, however, that his migration lawyer had suggested that he “go down the Ministerial intervention process”: Tribunal Transcript, page 3 lines 24-35 (CB 13).
The Tribunal indicated to the applicant that it was open to him to make an application for Ministerial intervention and noted that that there were criteria and guidelines as to when the Minister will or will not intervene: Tribunal Transcript, page 4 lines 13-19 and 29-30, and page 5 lines 1-2 (CB 14-15).
The Tribunal advised the applicant that it intended to hand down its decision but that that decision was not a “decision about whether the Minister would intervene if [the applicant] decided to go ahead and make an application for that”: Tribunal Transcript page 5 lines 4-6 (CB 15).
In the course of its oral reasons the Tribunal noted that the applicant had indicated that he would like the Minister to consider his matter for intervention and that, as it had discussed with him, it was open to him to make that application: Tribunal Transcript page 5 lines 31-33 (CB 15), and Tribunal’s subsequent written statement at [6] (CB 181).
The Tribunal then stated (Tribunal Transcript page 5 lines 33-34 (CB 15); Tribunal’s subsequent written statement at [6] (CB 181)):
“…but based on the information before me, I do not see any unique or exceptional circumstances that would justify the Tribunal making that referral on his behalf”.
The question that arises from the above is whether this Court has jurisdiction to review the Tribunal’s “non-referral” of its decision to affirm the decision not to grant the applicant the visa to the Minister for consideration of the possible exercise of the Minister’s intervention powers.
The issues raised by this question, albeit in a different context, were considered by my colleague, Judge Mercuri (now Deputy Chief Judge Mercuri) in AFG20 v Minister for Immigration & Anor [2020] FCCA 1361 (“AFG20”).
In that case, the applicant sought, by ground 3 of his originating application (as amended), to review the Tribunal’s refusal to recommend to the Minister that there be intervention under s 417 of the Migration Act (AFG20 at [114]-[116]). Her Honour Judge Mercuri summarised the issue before her as follows:
120.Paragraph 164 of the tribunal’s reasons is a summary of the argument advanced by the applicant’s representative in favour of a referral for Ministerial intervention. In this regard, the applicant’s representative said:
In respect of the jurisdiction of the Tribunal to recommend exercise of the Minister’s s.417 power, the interests of Australian citizens, the applicant’s uncle … and the applicant’s cousin … are affected.
121.In any event, the real question in this ground is whether the tribunal’s consideration of the request for a referral for Ministerial intervention was a necessary part of the tribunal’s discharge of its review function and therefore any error in determining whether or not to make the recommendation could not amount to jurisdictional review (citing Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265 (“Fernandez”)).
In answering that question, Her Honour determined as follows:
122.Deciding whether or not to refer a matter to the Minister for exercise of their discretion under section 417 is not part of the tribunal’s review function.
123.Without determining whether there is any error in that decision making process, any such error cannot therefore amount to jurisdictional error, as it does not result in:
a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it (citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24]).
124.The tribunal’s powers are confined by the terms of the Act. Considering whether to refer a matter to the Minister for his consideration under section 417 of the Act is not such a power.
125.The applicant has not pointed to any provision in the Act which empowers the tribunal to make a recommendation under section 417. The applicant appears to rely upon the PAM3 as the source of this power.
126.A similar argument to that advanced in this case was advanced in Fernandez v Minister for Immigration and Border Protection and Anor (2015) 238 FCR 251; [2015] FCA 1265 where the applicant similarly requested the tribunal to support an application for Ministerial intervention in the event that it did not grant the applicant’s application.
127.In that case, it was held that the PAM3 is not a direction made under section 499 of the Act and therefore does not impose a duty on the tribunal to consider the issue of Ministerial intervention. Moreover, Robinson J said:
It has not been shown by the appellant that what the Tribunal said about Ministerial intervention was relevant to the discharge of its functions of review under the Migration Act. Put differently, I am not persuaded that the Tribunal’s referral or non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Migration Act.
128.The same reasoning applies in this case. The applicant has not established how it is said that the tribunal’s decision not to seek Ministerial intervention falls within the discharge of its review obligations.
129. Accordingly, ground 3 is not made out.
In the matter now before this Court, the reasoning, and ultimate conclusions reached above by Justice Robinson in Fernandez and Deputy Chief Judge Mercuri in AFG20 apply here.
As correctly outlined by the Minister in this matter (at [4] to [6] in further written submissions dated 9 September 2021), where the Tribunal affirms a decision refusing to grant the applicant a visa because of a failure to meet a mandatory criterion for the grant of that visa, the Minister has a statutory discretion to substitute a more favourable decision (as per subsection 351(1) of the Migration Act). Further, pursuant to s 351(3) of the Migration Act, the power under s 351(1) may only be exercised by the Minister personally and there is no duty imposed on the Minister to consider to exercise of the power in s 351(1) of Migration Act (as per s 351(7) of the Migration Act).
Here, as detailed above, the applicant did not satisfy the requirement in clause 187.233(3) of Schedule 2 of the Regulations (at CB 111). The Tribunal thus had no choice but to affirm the decision under review: as per Singh v Minister for Immigration and Border [2017] FCAFC 105.
This proceeding commenced in the Federal Circuit Court of Australia. Pursuant to s 8(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “FCFCoA Act”), as from 1 September 2021 the federal court known before that date as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2). Pursuant to s 131(1) of the FCFCoA Act, the Federal Circuit and Family Court of Australia (Division 2) has such original jurisdiction as it vested in it by laws made by the Parliament. The combined effect of ss 8(2) and 131(1) of the FCFCoA Act and s 476 of the Migration Act is that this has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Here, the applicant applied to this Court to review the Tribunal’s decision to affirm the decision refusing to grant him a visa. The Tribunal’s decision is reviewable by this Court pursuant to s 476(1) of the Migration Act as it is a “migration decision” as that term is defined in ss 5(1), 5E and 474(2), (3) and (6) of the Migration Act.
In relation to the Court’s jurisdiction to review, the Minister in this matter argues as follows:
19.However, the non-referral to the Minister for possible intervention under s 351(1) of the Migration Act is not a “migration decision” for the purposes of the Migration Act. This is because it was not a decision of an administrative character made or purportedly made under the Migration Act or under a regulation or other instrument made under the Migration Act: see the definition of “privative clause decision” in s 474(2) and the definition of purported privative clause decision” in s 5E.
20.Subsection 348(1) of the Migration Act provides that, subject to subsection (2) (here not relevant), if an application is properly made under s 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision. Section 349 then deals with the Tribunal’s powers on review of Part 5-reviewable decisions, s 350 deals with the review of assessments made under s 93, and then s 351 provides a discretionary power to the Minister to substitute for a decision of the Tribunal under s 349 a decision more favourable to the applicant. Division 3 of Part 5 of the Migration Act concludes with s 352 which requires notification to the Secretary of review applications made to the Tribunal, and the Secretary’s obligations after being so notified.
21.What is noticeably absent in Division 3 of Part 5 of the Migration Act (or anywhere else in that Act) is any provision giving power or discretion to the Tribunal to refer a matter to the Minister for consideration of the exercise of the Minister’s powers under s 351(1) when the Tribunal has made a decision adverse to the applicant. Accordingly, in the event that the Tribunal makes an adverse decision in relation to an applicant, and also does not refer that adverse decision to the Minister for possible intervention under s 351(1), that subsequent “administrative act” is not a “migration decision”, as it is not a decision made or required to be made under the Migration Act. Nor is there any provision of the Migration Regulations 1994, or of any other instrument made under the Migration Act, which provides for the possible referral by the Tribunal of an adverse decision to the Minister.
The Court agrees. Her Honour Judge Mercuri’s findings in relation to the Tribunal’s refusal to refer the matter to the Minister for possible intervention under s 417 of the Migration Act apply here in relation to a request for intervention pursuant to under s 351(1) of the Migration Act. Here, the Tribunal also has no statutory power to refer a matter to the Minister for his consideration under s 351(1) of the Migration Act.
The decisions of AFG20 and Fernandez support the Minister’s conclusion that the Court has no jurisdiction to review the non-referral in this matter. As rightly noted by the Minister, the decision to not refer was not a migration decision reviewable by the Court under s 476(1) of the Migration Act and it did not fall within the discharge of the Tribunal’s review functions under that Act. Any concerns the applicant has about the Tribunal’s “refusal” to refer his matter to the Minister are not concerns of a sort that can be addressed by the Court on judicial review. This Court has no jurisdiction to review the non-referral. Neither the Migration Act nor any regulation or instrument made under that Act gives the Tribunal a power to refer an adverse decision to the Minister for the possible exercise of the Minister’s powers under s 351(1) of the Migration Act.
It is also noted (for the applicant’s future reference and attention) that the Tribunal’s non-referral does not prevent the applicant from seeking Ministerial intervention now or in the future should he wish to do so. As correctly noted by the Minister, s 351 of the Migration Act does not specify who must seek Ministerial intervention. If the applicant remains of the view that “but for COVID” he would no longer find himself in the unfortunate situation he now finds himself him, he can raise those concerns in his own right with the Minister.
DECISION
The applicant’s application for judicial review filed on 19 April 2021 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Dated: 29 September 2021
3
19
2