Shah v Minister for Immigration
[2020] FCCA 2905
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAH V MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2905 |
| Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal to refuse a subclass 457 visa – where the Migration Regulations which applied at the time of the application meant the applicant did not meet a necessary criterion – where the applicant alleged it was unfair the Tribunal conducted the hearing via telephone link – satisfied the hearing conducted by telephone link was not unfair – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.2.75(2)(b) Migration Amendment (Skilling Australians Fund) Regulation 2018 (Cth) |
| Cases cited: SZNNE & Anor v Minister for Immigration & Citizenship (2010) 114 ALD 138; [2010] FCA 194 McDonald v Commissioner of Taxation (2000) ATC 4271; [2000] FCA 577 Rehan v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1898 |
| Applicant: | SUJEET KUMAR SHAH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 40 of 2019 |
| Judgment of: | Judge Young |
| Hearing date: | 15 October 2020 |
| Date of Last Submission: | 15 October 2020 |
| Delivered at: | Darwin |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Ellison |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 40 of 2019
| SUJEET KUMAR SHAH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 November 2019. The applicant was an applicant for a subclass 457 visa. He was initially refused that visa because he did not satisfy the minimum English language requirements. He sought a review of that decision before the Tribunal and by that stage he had apparently remedied his English language deficiency and he ultimately provided evidence that he satisfied the minimum requirements. However, the Tribunal affirmed the decision of the delegate, ultimately, for a somewhat different ground, that is the nomination of the applicant by his prospective employer, Saakar Pty Ltd, had lapsed pursuant to Migration Regulation 2.75(2)(b).
The applicant’s migration agent had submitted in writing to the Tribunal that the nomination had not in fact ceased and relied on what is said in the correspondence to be regulation 2.72(2)(b) but Mr Ellison points out, and I accept, that must be a typographical error for 2.75(2)(b). The regulation relied on by the migration agent came into effect in 2018 and provided essentially, and I summarise, that a nomination did not cease either until 12 months or the termination of the application, whichever was the later.
Mr Ellison submitted that the migration agent’s submission on that point was wrong because in the amending regulations passed in 2018, the Migration Amendment (Skilling Australians Fund) Regulation 2018, the operation of the 2018 amendment of 2.75(2)(b), which permitted expiry once the application was determined, did not apply to applications made before 18 March 2018. Mr Ellison submitted and I accept that the applicant’s nomination, made by Saakar Pty Ltd, was made earlier than 18 March 2018, it appears probably in 2016. That being the case, the variant of regulation 2.75(2)(b) that applied to this application was the version before 2018, which provided that the nomination ceased after 12 months. It was on that ground that the Tribunal rejected the application for the 457 visa. The applicant being self-represented today was not able to make any submissions, really, of any value on that point, but I have explored it with Mr Ellison and I accept his submission.
It follows from the nomination having ceased that the application before the Tribunal could not have succeeded because the applicant did not meet a necessary criterion for the grant of the 457 visa, notwithstanding that he had complied with the English language minimum requirements. It would also seem to follow from that, regrettably, that had the applicant satisfied the English language requirements at the time the matter was dealt with by the delegate the nomination may not have ceased as at 13 April 2017 and the visa may well have been granted, but that appears to be a state of affairs that cannot be undone.
The actual grounds that the applicant complains of, at least in his oral submissions he made to me, were, as far as I could tell from speaking to the applicant, basically on two grounds. One, he said that it was unfair in substance that the Tribunal conducted a hearing in Sydney when his migration agent was based in Brisbane and the applicant was based in Darwin at that point, that is a hearing in October 2015.
It is not in question that the Tribunal’s invitation to the applicant to appear and address the issue that I have identified was sent to him by his migration agent on 20 September 2019 and it notified the applicant that the hearing would take place in Sydney on 15 October at 9.30 am.
On 1 October the applicant’s migration agent, Mr Howard, emailed the Tribunal and said that he, Mr Howard, was located in Brisbane and he asked that the hearing take place in Brisbane rather than Sydney. The Tribunal replied to Mr Howard and said, in substance, that the hearing would take place by telephone. That advice was given to Mr Howard by the Tribunal on 8 October 2019.
According to the reasons of the Tribunal on 14 October 2019 at 4.11 pm Mr Howard emailed and said that he was instructed that his client did not wish to attend the hearing and he wished to withdraw his application for review. On 15 October the Tribunal conducted the review and simply noted that the application had been withdrawn and an email was sent to Mr Howard at 11.49 am advising him that the Tribunal had accepted the withdrawal and “processed the review”, presumably by dismissing the application. At 12.30 pm the Tribunal received an email from Mr Howard saying Mr Howard had misunderstood his client’s instructions and his client did not wish to withdraw his application but instead asked the Tribunal to deal with the matter without a hearing or in other words, to deal with the matter on the papers.
The only submission about the effect of 2.75(2)(b) of the Migration Regulations made by Mr Howard is the one I have dealt with. Even though the Tribunal did not deal with that submission, I accept for the reasons Mr Ellison gave that the submission of Mr Howard was incorrect. In those circumstances I am satisfied there was no unfairness to the applicant in the way the matter proceeded, particularly the fact that he was given the opportunity, or rather, his migration agent was given the opportunity to appear and make submissions if necessary by telephone.
Ultimately, the applicant instructed Mr Howard that he did not wish to appear and that he wanted the matter dealt with on the papers. In his affidavit in support of his application for review the applicant says, in effect, he had no choice about that and he felt unable to respond. While that is possibly true, the fact is that no communication from the applicant’s agent, Mr Howard, objected to the way the Tribunal was going to deal with the matter or sought to have any particular matter accommodated by the Tribunal or pointed to any practical unfairness in the way the Tribunal conducted itself. In the circumstances I am not satisfied that there has been any practical unfairness or lack of procedural fairness.
Mr Ellison referred to a decision of SZNNE & Anor v Minister for Immigration & Citizenship [2010] FCA 194, which appears in his outline of submissions, particularly at paragraph 48 where Reeves J in McDonald v Commissioner of Taxation [2000] FCA 577 says, in effect, these days with advances in technology there is no real reason why hearings of the kind that were conducted by the Tribunal, or was proposed to be conducted by the Tribunal, should not go ahead and take place. Generally of course that proposition is self-evidently correct, notwithstanding our own experience of using technology today has not been entirely trouble-free. Nevertheless, I accept the basic position that in administrative decision making, particularly the administrative decision making of the Tribunal, which is a national Tribunal dealing with applicants from all corners of the country, that it is a very common way of proceeding these days to conduct hearings by telephone or occasionally by audio visual link. I am not satisfied that the mere fact that the hearing was conducted over the phone was in any sense unfair.
I asked the applicant what he had wanted to do in a face-to-face hearing that he couldn’t have otherwise done. He complained about his lawyer giving bad advice but he did not say specifically what that bad advice was and I am not satisfied that any bad advice was given. He further said he would have liked to give the Tribunal documents. I asked him what documents and he said the evidence of his English proficiency. I pointed out that at the Tribunal hearing his English proficiency was no longer an issue as it was accepted that he had satisfied the minimum English proficiency requirements. The applicant was, in fact, unable to point to any factor that deprived him of an opportunity to put forward submissions or arguments or evidence to the Tribunal. I am not satisfied there is any substance in these complaints.
Those matters broadly deal with what is described as the grounds of review at paragraphs one through to three at least. Ground six I have dealt with. I am satisfied there was no valid nomination and the applicant has not advanced any arguments in relation to six. At ground four it is alleged that he was given insufficient notice that he would need to address new information. The notice of the new information, that is the ceasing of the nomination, was set out in an invitation to appear sent out on 20 September and replied to with a submission by the applicant’s migration agent, a submission that was not accepted for the reasons that I have given. I am satisfied there is no merit in ground four.
I am not satisfied that ground five as described is a relevant ground. It is not, in my view, relevant that a new reason for refusing the application, that is the nomination ceasing, had arisen between the time of the delegates’ decision and the decision of the Tribunal. Ground five is without merit.
Ground seven I have dealt with, which relates to the hearing being in Sydney. Ground eight is also a complaint that there was insufficient notice of the new information for refusing the application, that is the ceasing of the nomination. I have dealt with that. In my view, a ground without merit.
Ground nine alleges that the Tribunal failed to take into account that the reason for the nomination ceasing was the insolvency of Saakar Pty Ltd. I am not aware that that was the reason. The statutory reason was the expiration of 12 months from the time of the nomination and it is the reason referred to by the Tribunal.
The allegation at ground 10, which alleges that the Tribunal incorrectly applied the law when it said that in substance, the applicant could not make an application for a nomination for a subclass 457 visa after the expiry of the original nomination, is said to be wrong in law. However, I have received no submissions in relation to that and it would not appear to be consistent generally with the case law that I have been referred to, particularly the decision Bromwich J in the Federal Court, Rehan v Minister for Immigration [2019] FCA 1898, which was decided in late November 2019, shortly after the Tribunal’s hearing, which referred generally to the disappearance of the 457 category of visa. I am not satisfied that ground 10 has any substance to it.
Ground 11 is an allegation that:
The Tribunal failed to take into account that the applicant was not given a reasonable opportunity to present evidence that his current employer in Darwin was preparing to apply to nominate the applicant as his sponsor
In my view the ground is not relevant to the question in front of the Tribunal, that is, whether the applicant was able to comply with the mandatory requirements for a visa. Furthermore there was no evidence given to the Tribunal about that.
The application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 26 October 2020
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