Shah v Minister for Immigration

[2020] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2494

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination, permanent Class RN visa – nomination by the putative employer refused – no appearance at the Tribunal hearing by the Applicants – Applicants seeking merits review – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 362B

Migration Regulations 1994 (Cth), cl.187.233 of Sch.2

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

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

First Applicant: ARPIT DIPAKKUMAR SHAH

Second Applicant: MITALI ARPIT SHAH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 926 of 2018

Judgment of: Judge Blake

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Melbourne

Delivered on: 27 August 2020

REPRESENTATION

Advocate for the Applicants: The First Applicant in person

Solicitors for the Applicants: None

Solicitor Advocate for the Respondents: Mr Daly

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’. 

2. The Application filed on 10 April 2018 be dismissed, such order to become operative on the date written reasons are published.

3. The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 926 of 2018

ARPIT DIPAKKUMAR SHAH

First Applicant

MITALI ARPIT SHAH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the Transcript)

Introduction

1. This is an application for a review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 26 March 2018.  That decision arises initially from a decision of a delegate of the Minister to dismiss the First Applicant’s application for a Regional Employer Nomination, permanent Class RN visa (‘visa’). 

Background

1. By way of background, the Applicants in the present matter are husband and wife.  The husband is the first Applicant, the wife is the second Applicant.  Both Applicants are citizens of India. The First Applicant made the application for the visas on 19 June 2017 (Court Book page 1).  The Second Applicant made a combined application with the First Applicant on the basis that she was a member of the First Applicant’s family unit. 

2. Relevantly, the First Applicant was required to satisfy clause 187.233 of Schedule 2 of the Migration Regulations 1994 (‘Regulations’), which stated as follows:

   ‘187.233

   (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:

   (i)  subparagraph 5.19(4)(h)(ii); or

   (ii)  subregulation 5.19(4) as in force before 1 July 2012; and

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

   (2)  The person who will employ the applicant is the person who made the nomination.

   (3)  The Minister has approved the nomination.

   (4)  The nomination has not subsequently been withdrawn.

   (4A)  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.

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

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

3. By way of letter from the Department dated 8 November 2017, the Applicants were notified that the nominations submitted to the Department by the First Applicant’s sponsor had been refused (Court Book page 14).  The letter stated that if the Applicants did not respond within 28 days and the application for the visas was not withdrawn, then the application would be refused.  No response was received to this communication from the Applicants. 

4. Subsequently on 14 December 2017, a delegate of the First Respondent refused to grant the Applicants the visas. The delegate’s decision record is contained at Court Book page 21. The visa was refused on the basis that the nomination lodged by the putative employer was refused by the delegate of the Minister. As a result, the delegate concluded that clause 187.233, subclause 3, had not been satisfied.

5. The Applicants then applied to the Tribunal for a review of the delegate’s decision.  On 20 February 2018, the Applicants were sent an invitation by email, to the email address nominated on their application form, to attend a hearing before the Tribunal on 8 March 2018 to give evidence and present arguments (Court Book pages 30 to 32).  The invitation noted that a failure to appear before the Tribunal may result in the application for review being dismissed without further consideration.  Two SMS reminders were subsequently sent by the Tribunal to the Applicants reminding them of the hearing on 8 March 2018.  Neither of these SMS reminders was actually delivered. 

6. Ultimately, as it transpired, the Applicants did not attend the hearing before the Tribunal on 8 March 2018. The Tribunal subsequently dismissed the application for non-appearance. The dismissal decision, was made pursuant to section 362B(1A)(b) of the Migration Act 1958 (‘Act’).  The Tribunal found that no satisfactory reason had been provided for the Applicants’ non-attendance. 

7. On 9 March 2018, the Applicants were notified of the official decision by email (Court Book page 37).  The Applicants were advised that a reinstatement application could be made by written application within 14 days.  The Applicants did not ultimately make a reinstatement application. Subsequently, on 26 March 2018 the Tribunal confirmed its decision of 8 March 2018 to dismiss the application (‘confirmation decision’). 

8. The Applicants subsequently filed an application to this Court on 10 April 2018 seeking judicial review of the confirmation decision.  An affidavit was filed in support of the application which annexed the Tribunal’s decision. 

9. On 17 April 2019, orders were made by a registrar of this Court concerning the conduct of this matter.  Among other things, those orders provided for the parties to file an outline of submissions.  The orders also provided that all evidence to be relied upon must be presented by way of affidavit, except for the Court Book. 

10. The Minister subsequently filed written submissions, a Court Book and supplementary Court Book.  The Applicants did not file written submissions.  My chambers have, however, received two documents from the Applicants the day prior to the hearing.  These are a document headed ‘Application preview document’ and a photograph of a letter of reference from APM, an organisation that appears to be the present employer of the First Applicant. 

The Application for Review

1. I turn to the grounds of review. There is a single ground of review contained in the application, which is as follows:

   ‘I strongly believe that my grounds for the application of the Employer Nomination Visa are completely genuine.

   Kindly review the attached statement, supporting my claims for the Federal Circuit Court judicial review.’

2. Annexed to the application was a document entitled grounds of application.  It is a lengthy statement. That document states as follows:

   ‘I want to dispute the decision made by the Department of Home Affairs and also by the Administrative Appeals Tribunal . I do not agree with the their decision to refuse my regional employer nominated visa application, SC 187.

   I lodged my Regional Employer Nominated visa application ( Permanent ) with my occupation as a Human Resource Advisor. The Department refused my visa application because my occupation did not align with the business requirements. I lodged review application with the Administrative Appeals Tribunal , which was also dismissed on the 26/03/2018. The AAT dismissed the decision and did not grant me the visa. However, I want to bring to your kind notice that the refusal of my Regional Nomination was completely beyond my control . The business that I was and am currently working in, is urgently in the need of a Human Resource Advisor . The Department’s assumption that a Human Resource Advisor would not add value to a business leads to an error on the case officer’s part to assess the case in fair and transparent manner .

   I would like to bring to your kind attention that the tribunal has made an incorrect assumption, as I have been effectively working as a Human Resource Advisor in the nominating business and contributing positively towards the growth of the business ever since I joined the business. my nominator is very satisfied with the commitment towards my work .

   I strongly believe that the Department and the Tribunal have definitely made errors whilst arriving at a decision regarding my case . I therefore humbly request the “Federal Circuit Court” to exercise its powers and to give me an opportunity to present my case in a fair and transparent manner.

   I am happy to provide any further information regarding my case.

   Your’s Sincerely,

   ( Arpit Dipakkumar Shah )’

   (errors in original)

3. It is apparent from the statement that the Applicants say the following in relation to the present application before this Court.  First, that the refusal of the nomination upon which the original visa application was based, was beyond the First Applicant’s control.  Second, that he is currently employed in a human resources capacity and the business in which he is employed has a need for a human resources advisor.  Third, that he has been effectively working as a human resource advisor in the nominating business since he joined that business. 

4. The First Applicant’s submissions before me, on the material, essentially invite the Court to undertake a merits review.  It is well established that this Court does not have jurisdiction to entertain a merits review of an application such as the present one, and it is the approach I intend to adopt.  It is also well established that this Court cannot review the decision of a delegate.  It is understandable that an unrepresented person in the shoes of the Applicants does not fully appreciate this. 

5. While it is not necessary for me to do so, I would simply indicate for the benefit of the First Applicant, Mr Shah, that the matters that he put to me do not advance his claim. The facts of the matter are that the employer nomination upon which the visa application was based was refused, meaning the regulation could not be complied with. It might be that he is employed in a business now, however, that employment only commenced in 2019. There is no evidence before me of any nomination by the present employer. Accordingly, even on the evidence or submissions, there is nothing to indicate that the First Applicant was able to comply with clause 187.233 of the Regulations.

6. Before me in oral submissions today the First Applicant raised two further matters for the first time.  First, he affirmed that he had not been told by his agent what had occurred or what had been said by the Tribunal.  Second, he indicated that his wife and he had experienced significant setbacks, in particular serious medical issues which had been a distraction for them in 2018. 

7. The first thing to be said about these two matters is that they were raised for the first time today, notwithstanding the length of time this matter has been in the lists.  Fraud or negligence of a migration agent is, of course, a serious matter.  Given that the First Applicant raised this matter for the first time today, I reviewed the Court Book.  It is not apparent on any of the documents filed that the Applicants engaged an agent to represent him.  The only indication that, perhaps, an agent was on the record, was the email address that the Applicants initially supplied to the Tribunal, [email protected].  That email suggests, on one view, and the highest view in favour of the Applicants, that it is an email address of an organisation.  That email address, however, is the only indication that I can see, that potentially the Applicants engaged an agent.  There is nothing in the materials in the Court Book that indicates he was represented.  He has not deposed to being represented in an affidavit.  No representative appears to have made submissions on his behalf in this matter.  There is no evidence before me, other than the bare assertion from the First Applicant that the representative failed to notify him.  In those circumstances, I do not accept that an agent failed to notify the Applicants. 

8. Insofar as the assertion that the First Applicant and his wife faced serious medical issues which affected their ability to participate, once again, no evidence was placed before me, or before the Tribunal, in relation to this.  There is no affidavit or sworn statement deposing to what occurred.  There is not even tendered before me any contemporaneous medical record demonstrating the existence of any illness which would prevent the First Applicant or his wife from engaging with the matter.  I, therefore, do not accept that medical issues prevented the Applicants from engaging with the Tribunal or from attending the Tribunal. 

9. The First Applicant before me today pleaded for more time.  It is difficult to not feel some sympathy for Mr Shah.  It appears that he is employed, and that he has done what he can to make a life for himself and his wife in Australia.  Unfortunately for Mr Shah, however, the issue that he and this Court need to confront is whether the approach of the Tribunal exposes any error as to jurisdiction.  It is to that matter which I now turn. 

10. While the First Applicant did not advance this issue before me in any clear way today, it appears that a circumstance that may have led to the Applicants’ non-attendance at the hearing on 8 March 2018 was that he changed his contact details.  The Applicants’ application form to the Tribunal is set out in the Court Book, and commences on page 25.  In that form the Applicants nominate a contact email address as being [email protected].  That is the email address subsequently used by the Tribunal to contact the Applicants.  The invitation to attend the hearing sent by the Tribunal on 20 February 2018 was sent to that address.  The notification of the decision to dismiss the application sent on 9 March 2018 was sent to that address.  The confirmation decision sent on 26 March 2018 was sent to that address. 

11. It then appears, from email correspondence set out in the Court Book at page 48, that on 31 March 2018 the First Applicant sent an enquiry to the Tribunal asking about the status of his case.  In that email, the First Applicant notified the Tribunal of his new email address.  The relevant question before the Court is, therefore, whether the sequence of events I have described above discloses any jurisdictional error. 

12. Before turning to consider the substance of the matter there is one brief issue to mention.  An email sent from the Tribunal to Mr Shah dated 10 April 2018 indicates that the Tribunal updated his contact details on  ‘3 March 2018’. I find that this reference must be an error and the likely date must be 31 March 2018, which is when the First Applicant actually informed the Tribunal of his email address on the documents before me.  I have come to this view because I have seen the email sent by the First Applicant updating his details on 31 March 2018.  Self-evidently, the email of 10 April 2018 comes after that date.  Further, case notes of the Tribunal contained in the supplementary Court Book refer to, on 3 April 2018, an update of the Applicants’ contact details.  Finally, the First Applicant did not contend that he had notified the Tribunal of his changed details at any time before 31 March 2018. 

13. Turning then to whether the change of address details may constitute jurisdictional error. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (‘SZVFW’), the High Court considered a case similar to that presently before this court.  In SZVFW, the High Court held that the Tribunal’s decision to proceed under the analogous provision in section 426A of the Act, was not legally unreasonable. Further, Kiefel CJ expressly noted there was no obligation on the Tribunal to attempt to contact an applicant by telephone prior to exercising its powers. Like SZVFW, this is a case where the Applicants had had minimal interaction with the Tribunal and indeed, with the delegate.  The Applicants had not, for example, taken up the invitation of the delegate to respond to the adverse information received in respect to the putative employer nomination.  This is a relevant consideration.  There was nothing to otherwise indicate to the Tribunal that the Applicants’ failure to attend was unexpected, given the communications, or lack thereof, that had occurred up to that point. 

14. The other aspect in this case is the Tribunal sent two SMS reminders to the Applicants to remind them of the hearing of 8 March 2018. Both of those reminders failed to be delivered. There are two things to be said about the sending of SMS reminders. First, the Tribunal was not required to send those reminders; there is nothing in statute that requires it to do so. To this I would add, once again, this is not a case where the Applicants’ failure to attend or engage was unexpected, given the nature of the communications up to this point. Second, this is a case in which the invitation to attend the hearing appears to be valid when one has regard to what is required by sections 360 and 360A of the Act. The invitation gave notice of the time, date and place of the hearing. It was transmitted to the Applicants’ last known email address. The invitation complied with the prescribed notice period. The invitation also contained a statement to the effect of section 362B of the Act. Once a valid invitation was issued, it was open to the Tribunal to proceed to dismiss the application under section 362B(1A)(b), and it ultimately did so. Further, the Tribunal, subsequent to the dismissal decision, made a written statement setting out its reasons and sent that to the Applicants at their last known email address. Importantly the Applicants were informed of their right to seek reinstatement. It is a matter of record that no application for reinstatement was received. The Tribunal was, therefore, bound to confirm the decision to dismiss the application.

15. Finally, in the event that I am wrong in respect of any of the reasoning above, I note that it would be futile to remit the matter to the Tribunal. The application was refused because the requirements of clause 187.233 were not satisfied. In this case, the nomination of the putative employer, being the nomination to which the visa application was attached, was refused. Criteria cannot be satisfied on the basis of a different nomination to that declared in the application for the visa, see Singh v Minister for Immigration and Border Protection [2017] 253 FCR 267, paragraphs [88] to [89]. This provides a further answer to the submissions advanced before me today by the First Applicant. It will be futile to remit the decision as the Tribunal would simply be bound to confirm the delegate’s decision.

1. For all of the above reasons I am unable to discern any errors to jurisdiction in respect to this matter.  The application should be dismissed.  It is usual that costs follow the event. The Minister’s costs are $5,000 and I will make an order in respect of that amount.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 7 September 2020