Sellamuthu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 415
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sellamuthu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 415
File number: MLG 1904 of 2019 Judgment of: JUDGE LAING Date of judgment: 23 May 2023 Catchwords: MIGRATION – reinstatement application – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Temporary Business Entry (Class UC) visa (Subclass 457 visa) – proposed substantive grounds of review found to be insufficiently meritorious to warrant reinstatement – application dismissed Legislation: Migration Act 1958 (Cth) ss 338, 348, 353, 357A 359A, 360(3), 363A and 368
Migration Regulations 1994 (Cth) reg 4.17, cl 457.223(4)(a) of Schedule 2
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 10 May 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared via telephone. Solicitor for the First Respondent: Ms S Wright of Mills Oakley. The Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 1904 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJENDRAN SELLAMUTHU
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
23 May 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 16 March 2023 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
Before the Court is an application in a proceeding filed on 16 March 2023 (Reinstatement Application) seeking to set aside orders made on 15 February 2023 dismissing an application for judicial review (Substantive Application) on the basis of non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Delegate), by which the Delegate had refused to grant the applicant a Temporary Business Entry (Class UC) visa (457 visa).
BACKGROUND
The applicant applied for a 457 visa on 13 August 2016, relying upon a nomination application made by his prospective employer (Prospective Employer).
By letter dated 30 November 2016, the applicant was invited to comment on information that the Prospective Employer did not have an approved nomination for the applicant at the date of the letter. The letter noted that this would mean that his visa application would be unable to be approved.
By letter dated 28 December 2016, the Department acknowledged an application that had been made in respect of a nomination for the applicant by the Prospective Employer. On 7 March 2017, the applicant was notified that there was, at that date, no approved nomination.
The Delegate refused the 457 visa application on 11 April 2017. The Delegate observed that the Prospective Employer did not have an approved nomination in place for the applicant. Accordingly, the Delegate found that the criterion in cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 1 May 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
The Prospective Employer also applied to the Tribunal for review of the decision refusing the nomination application. On 1 May 2019, the Tribunal affirmed the decision not to approve the nomination.
On 7 May 2019, the Tribunal sent the applicant a letter pursuant to s 359A of the Migration Act 1958 (Cth) (Act) inviting comments upon or response to the following:
•The applicant was nominated by Lentils and All Pty Ltd for a position of a Chef (ANZSCO 351311).
•The nomination application made by Lentils and All Pty Ltd was refused by the Department on 7 March 2017.
•Lentils and All Pty Ltd applied for review of this decision at the Tribunal on 27 March 2017.
•On 1 May 2019 this Tribunal affirmed the decision not to approve nomination made by Lentils and All Pty Ltd.
This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.
If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the applicant does not meet the criteria contained within clause 457.223(4)(a).
The applicant’s comments or response were required by 21 May 2019. No response was received by that time, or subsequently before the Tribunal’s decision.
On 27 May 2019, the Tribunal affirmed the Delegate’s decision not to grant the visa.
RELEVANT CRITERION
The criterion at issue before the Tribunal was cl 457.223(4)(a) of Schedule 2 to the Regulations, which provided:
457.223
…
Standard business sponsorship
…
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75…
TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[8] of its decision, including its sending of the s 359A letter and the lack of response.
The Tribunal considered whether to adjourn the review as follows (at [9]-[15]) (footnotes omitted):
9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 7 May 2019.
10. 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.
11. The Tribunal considered whether, in the circumstances of this case, the applicant's comments on or response to the information contained in the Tribunal's s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.
12. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 7 May 2019. The applicant did not provide comments and/or or response within the prescribed periods set for this purpose.
13. The Tribunal has had regard to the fact that the visa application was refused by the Department on 11 April 2017, because the applicant was unable to meet the cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate's' decision for more than two years.
14. The Tribunal note that, if the applicant is not granted a temporary work visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a temporary visa once the applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.
15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
The Tribunal then reasoned as follows:
17.Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
18.Based on the evidence before it, the Tribunal finds that the applicant is not, at the time of the Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased. The Tribunal finds that the applicant does not satisfy cl. 457.223(4)(a).
19.For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
On this basis, the Tribunal affirmed the Delegate’s decision (at [20]).
APPLICATION BEFORE THIS COURT
The applicant filed the Substantive Application commencing these proceedings on 18 June 2019. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The Tribunal denied the applicant procedural fairness and/or failed to exercise its jurisdiction by failing to provide the applicant ample opportunity and time to respond to the matters and queries sought by the Tribunal.
2.The Tribunal erred in finding that the applicant's visa should be refused and failed to give proper weight and consideration to the earlier documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it by discounting the evidence before it.
3.As procedural fairness was not accorded by the tribunal to the applicant, the tribunal erroneously concluded that it had to affirm the decision of the delegate, and is accordingly in breach of the applicant's right to natural justice by:
a.Failing to explore and make proper enquiries into their erroneous conclusion that the applicant did not meet the primary criteria for the visa as set out in cl.457.223(4) in Part 500 of Schedule 2 of the Regulations; and
b. Not considering the evidence that was already before it.
4.The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
5.The Tribunal has further breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
6.The decision of the Tribunal 27 April 2019 under review was and is invalid in that:
a)the Second Respondent ("the Tribunal") wrongly held that the visa should be refused;
b)the Tribunal reached a mistaken conclusion that the applicant did not meet the primary criteria in cl.457.223(4) set out in Part 500 of Schedule 2 of the Regulations.
c)the Tribunal was mistaken as to its finding there was insufficient evidence to satisfy the primary criteria.
d)The Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
The matter was listed for hearing on 15 February 2023, of which the parties were notified by email sent on 4 January 2023. Despite this and correspondence subsequently being sent on behalf of the Minister reminding the applicant of the scheduled hearing, he did not attend. An attempt to contact him at the hearing by telephone was unsuccessful. The matter was accordingly dismissed pursuant to rule 13.06(1)(c) of the Rules.
On 16 March 2023, the applicant filed the Reinstatement Application.
Relevant principles
The power to set aside orders made in the absence of a party is contained in r 17.05(2)(a) of the Rules.
The principles regarding reinstatement are fairly well settled. The Court generally considers at least three matters (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]):
(a)whether there was a reasonable excuse for non-attendance at the hearing in which the proceedings were dismissed;
(b)any prejudice; and
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
Explanation for non-appearance
The applicant relies upon an affidavit dated 15 March 2023 in which he states, inter alia:
2. I had myocardial infraction and I also have cardio vascular issues. I had stroke, got admitted to hospital. I have now recovered partially from the effects of stroke. I am on several medications including blood thinners.
3. On 15/02/2023, I was unable to attend the Court due to my medical condition. I herewith attach copy of the documents provided by my treating doctors and the medications that I am currently advised to consume
4. I state that due to stroke my physical movements are limited.
The applicant says in his affidavit that “the non appearance before the court on 15 February 2023 was not wilful[l] or negligent but it was due to [his] poor health condition which did not permit [him] to attend the court”.
Annexed to the affidavit were various documents including a medication list from January 2022, medical invoices and receipts, hospital discharge papers from January 2022 and pathology results from August 2022. The affidavit also annexed a letter from Brunswick Private Hospital dated 25 January 2022 which reviewed the applicant following a stroke one month earlier and stated that the applicant was “clinically well” and independent “with all his personal ADLs”, although he was at the time said to be continuing to experience some “decreased coordination and balance”. A referral for possible sleep apnoea dated 12 August 2022, and a referral to a cardiologist for “a routien followup” (sic) that references some “left sided weakness” were also annexed.
As the Minister submitted, although this evidence indicates that the applicant suffered a stroke in late 2021, the independent medical evidence does not establish that the applicant was unable to participate in a hearing on 15 February 2023 (such as by Microsoft Teams, which the Court had offered to accommodate). Moreover, this evidence did not establish why the applicant did not contact the Court or the Minister’s solicitor if he had been unable to attend the hearing.
At the hearing of this matter, the applicant gave additional oral evidence that he had taken a pain pill prior to the hearing on the last occasion, fallen asleep and therefore not attended or been able to be contacted. As was put to him by the Minister, there is no independent evidence demonstrating this. The applicant suggested that he could provide further medical evidence in this regard and sought leave to do so.
As I explained at the hearing, however, whether or not that further opportunity ought to be given depends upon whether or not the applicant’s explanation in this regard, taken at its highest or its lowest, would be capable of determining the outcome in this matter. I reserved my decision in relation to this issue.
Ultimately, I am not persuaded that it can. This is because of the view that I have reached regarding the merits of the Substantive Application. Those findings, as I have set out below, result in a conclusion that the Reinstatement Application ought to be dismissed even if I accepted the adequacy of the applicant’s explanation for not attending the hearing on 15 February 2023. For these reasons, I have not adjourned the matter to allow the applicant to provide further medical evidence regarding his non-attendance at that hearing.
Prejudice
The first respondent does not identify any prejudice that is specific to this case, beyond being put to the burden and cost of additional litigation in respect of a matter he contends is unmeritorious. I will consider the merits of the application further below.
I do not find that the issue of prejudice meaningfully weighs against reinstatement.
MERITS OF THE SUBSTANTIVE APPLICATION
Ground 1
Ground 1 contended that the Tribunal erred by failing to provide him with sufficient opportunity to respond to matters raised by the Tribunal.
However, the invitation to comment complied with the minimum prescribed period that the Tribunal was obliged to provide to the applicant for his response, which was 14 days after the invitation was received: reg 4.17 of the Regulations. The invitation forewarned that if the applicant did not respond within the required period as allowed or extended, then the Tribunal may make a decision without taking any further action to obtain his views on the information. It that event, the applicant was advised that he would lose any entitlement to appear before the Tribunal.
Notwithstanding these warnings, there is no indication in the evidence that the applicant sought an extension of time. As the applicant did not respond to the invitation within the required period he lost his entitlement to a hearing under s 360 of the Act: ss 360(3) and 363A of the Act.
In these circumstances, it was open to the Tribunal to have proceeded as it did. The Tribunal gave intelligible reasons for not adjourning the review and instead proceeding to a decision. Those reasons were set out at [9]-[15] of its decision, which is extracted above. They included the Tribunal’s satisfaction that the applicant had been given sufficient opportunity to provide any comments and response but had not provided any response to its invitation that he do so.
Given the above, I do not find that ground 1 has reasonably arguable prospects of success.
Grounds 2 and 3(b)
Ground 2 and particular (b) of ground 3 contended that the Tribunal didn’t consider the evidence that was before it and/or failed to accord it proper weight. The evidence that it was said that the Tribunal failed to take into account was not identified.
I accept that the Tribunal did not expressly refer in its decision to every aspect of the evidence that was before it. For example, the Tribunal did not refer to the detail of documents that were submitted regarding the applicant’s qualifications and employment history.
However, non-reference to a particular item does not necessarily mean that it was not considered. In the circumstances of this case, the more likely inference to be drawn is that the Tribunal did not consider that evidence to be material to its decision. This was in circumstances where the only issue before the Tribunal was the applicant’s ability to meet cl 457.223(4)(a). That was an objective criterion for the grant of the visa, which required that the applicant have an approved nomination. As was put to the applicant in the invitation to comment dated 7 May 2019, the applicant was unable to meet this criterion in circumstances where refusal of the nomination he had relied upon had been affirmed. Even if the Tribunal had overlooked some piece of evidence (such as the applicant’s qualifications or employment history), it is not apparent how such an error could have affected the outcome in this matter.
I am therefore not persuaded that Grounds 2 or 3(b) have reasonably arguable prospects of success.
Ground 3
Ground 3 otherwise contended that the Tribunal failed to make “proper enquiries”. However, there is no general obligation upon the Tribunal to inquire: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25].
The only inquiry of relevance to the Tribunal’s decision in this case was how the applicant could meet cl 457.223(4)(a) given that the refusal of his proposed nomination had been affirmed. The Tribunal made that inquiry through its invitation to comment.
Given this, it is not apparent that ground 3 has reasonably arguable prospects of success.
Ground 4
Ground 4 contended that the Tribunal breached s 338, 348, 353 and 357A of the Act in failing to conduct the review properly and in a way that was fair and just.
Section 338 of the Act concerns the definition of a Part 5-reviewable decision. Section 348 of the Act generally obliges the Tribunal to review Part 5-reviewable decisions where an application for review has been properly made. Section 353 of the Act provides that the Tribunal is “not bound by technicalities, legal forms or rules of evidence”, and “shall act according to substantial justice and the merits of the case”. Section 357A limits the natural justice hearing rule under Part 5 of the Act, and provides that in applying the provisions under Division 5 of Part 5, “the Tribunal must act in a way that is fair and just.”
The applicant has not explained how jurisdictional error could be demonstrated by reference to these general provisions. Nor has any legally recognisable argument in this regard been identified on my review of the materials.
Ground 4 therefore does not have reasonably arguable prospects of success.
Ground 5
Ground 5 contended that the Tribunal breached s 368 of the Act by failing to “provide proper reasons”.
Section 368 of the Act relevantly provided:
368 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made…
The Tribunal’s reasons in this matter, although concise, were not relevantly inadequate. The Tribunal set out its decision on the review and reasons for decision, together with the day and time the statement of reasons was made. The Tribunal also set out its findings on the material question of fact and evidence by which the review was determined i.e. that the applicant had not demonstrated that he had an approved nomination despite the opportunities he had been given to do so. This, the Tribunal found, meant that the applicant was unable to meet cl 457.223(4)(a) of Schedule 2 to the Regulations.
I am therefore not persuaded that ground 5 has reasonably arguable prospects of success.
Ground 6
Ground 6 contended that the Tribunal “unreasonably” or otherwise erroneously affirmed the decision of the Delegate.
For the reasons set out above, the Tribunal’s reasons in this matter provided an understandable or intelligible basis for its decision. As the applicant had not demonstrated that he had an approved nomination, he was unable to meet this criterion for the visa.
Ground 6 appears, in substance, to invite the Court to disagree with the Tribunal’s decision and conduct impermissible merits review. As I explained during the hearing, this Court has no power to conduct such a review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
This ground also, therefore, does not appear to have reasonably arguable prospects of success.
CONCLUSION
Having regard to the above, the Reinstatement Application will be dismissed.
Even if I accepted that the other factors weighed in favour of reinstatement, I would conclude that the matter ought not to be reinstated for the reason that it lacks reasonably arguable prospects of success. As was stated in CAL15 at [4], it “is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful”. Such is the case here.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the reasons for judgment of Judge Laing. Deputy Associate:
Date: 23 May 2023
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