Shah v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1536
•16 December 2022
FEDERAL COURT OF AUSTRALIA
Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1536
Appeal from: Shah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2494 File number(s): VID 635 of 2020 Judgment of: BEACH J Date of judgment: 16 December 2022 Catchwords: MIGRATION – appeal – leave to raise new appeal grounds – failure to consider relevant circumstances – no point of principle – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 360, 360A, 362B, 362C, 379A
Migration Regulations 1994 (Cth), Sch 2 cl 187.233
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 28 Date of hearing: 16 December 2022 Counsel for the Appellants: The Appellants did not appear Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to
costs and otherwise did not appearORDERS
VID 635 of 2020 BETWEEN: ARPIT DIPAKKUMAR SHAH
First Appellant
MITALI ARPIT SHAH
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
16 DECEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellants pay the first respondent’s costs of and incidental to the appeal fixed in the sum of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The appellants appeal from the judgment of the primary judge in the court below who dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal made on 26 March 2018, which had affirmed a decision made by a delegate of the Minister to refuse to grant to the first appellant a Regional Employer Nomination (Class RN) (Subclass 187) visa.
For the reasons that follow I would dismiss their appeal. I should say that this afternoon there was no appearance by the appellants, but rather than exercise any power in default of appearance, given the history of this matter I have determined to dismiss the appeal on its merits.
Relevant background
On 19 June 2017, the first appellant, a citizen of India, applied for the visa. The appellant’s wife, the second appellant, also applied for a visa as a member of the first appellant’s family unit.
On 8 November 2017, a delegate of the Minister advised the appellants that the employer sponsor’s nomination application had been refused and invited them to comment on that information within 28 days. Unsatisfactorily the appellants did not respond.
On 14 December 2017, the delegate refused to grant to the appellants the visas. The delegate found that the first appellant did not satisfy cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth), as the nomination application lodged by the sponsor had been refused. Clause 187.233 provides:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); 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.
On 4 January 2018, the appellants applied to the Tribunal for review of the delegate’s decision. The appellants’ nominated contact details included an email address and the first appellant’s mobile phone number.
On 20 February 2018, the Tribunal sent the appellants an invitation by email to attend a hearing on 8 March 2018. The invitation noted that if the appellants did not attend the hearing, the Tribunal may make a decision in their absence, including dismissal of the application. On both five business days (3 March 2018) and one business day (7 March 2018) before the hearing, the Tribunal attempted to send SMS hearing reminders to the appellants at the nominated mobile phone number, also reminding them that the Tribunal hearing was being held on 8 March 2018. Delivery of both SMS hearing reminders failed, but this is of no moment given that the communication to the email address was adequate notification.
On 8 March 2018, and as the appellants failed to attend the hearing, the Tribunal dismissed the application under s 362B(1A)(b) of the Migration Act 1958 (Cth) for non-attendance. The Tribunal found that the appellants were properly invited to attend the scheduled hearing in accordance with ss 360, 360A and 379A(5). The Tribunal found that no satisfactory reason for the non-appearance had been given and dismissed the application.
On 9 March 2018, the Tribunal notified the appellants of its dismissal decision in accordance with s 362C of the Act, and advised that reinstatement could be sought within 14 days.
On 26 March 2018, the Tribunal confirmed its decision to dismiss the application. The Tribunal noted that it had dismissed the application under s 362B(1A)(b) on 8 March 2018 as the appellants did not attend the scheduled hearing on that date. The Tribunal was satisfied that the appellants were notified of the dismissal decision and given a copy of a written statement setting out the decision in accordance with s 362C(5), and that they were advised that reinstatement of the application must be sought within 14 days of the dismissal decision otherwise the dismissal decision would be confirmed. The Tribunal found that as the appellants did not apply for reinstatement within the 14-day period the Tribunal was required to confirm the decision to dismiss their application.
The proceedings below
On 10 April 2018, the appellants filed an application for judicial review of the Tribunal’s decision in the court below. The application raised one ground of review which, in summary, alleged that the visa application was genuine. Included with the application was a document which in summary set out the procedural history of the matter and otherwise sought merits review of both the delegate’s and the Tribunal’s decision.
At the hearing before the primary judge, the appellants raised expanded grounds of review that are described in the primary judge’s reasons and which I do not need to repeat.
The primary judge held that the appellants were properly notified of the hearing before the Tribunal in accordance with ss 360 and 360A and failed to attend the hearing. The primary judge held that the Tribunal was entitled to dismiss the matter for non-appearance in accordance with s 362B(1A)(b). The primary judge held that the exercise of the discretion under s 362B(1A)(b) was reasonable in circumstances where there had been minimal interactions from the appellants.
The primary judge held that the Tribunal was not required to do anything more to secure their attendance as they had been properly notified of the hearing by email.
The primary judge held that the appellants were properly notified of the dismissal, and the consequences of failing to apply for reinstatement, in accordance with ss 362B and 362C. The primary judge held that as the appellants did not apply for reinstatement within 14 days, the Tribunal was required to confirm the decision and no error was revealed by such confirmation.
Further and in my view importantly, the primary judge held that in the event he was wrong, any error in the Tribunal’s decision would nonetheless be immaterial in circumstances where the first appellant did not meet the requirements of cl 187.233 of Schedule 2 of the Regulations and could not now meet it with a new sponsor nomination; only the original sponsor nomination that was part of the application for the visa was of any relevance.
Accordingly, the primary judge in my view correctly held that any remittal would be futile in circumstances where the criteria could not be satisfied on the basis of any different nomination to that declared in the application for the visa.
The primary judge concluded that no jurisdictional error was discernible from the Tribunal’s decision, and dismissed the application. The appellants now seek to challenge the primary judge’s decision.
The present appeal
The appellants filed a notice of appeal in this Court containing the following seven grounds:
1. The Court did not take into account my work history including the work that I did for my nominating employer. I worked with Out of the Box Hospitality as a Human Resource Advisor from May 2017 to February 2018 and contributed positively towards the growth of the business. I am now working as an Employer Account Manager since May 2019. Before this I also worked in various jobs between July 2015 and May 2017 and then operated a food truck business from May 2018 to May 2019.
2. The Court did not duly consider the negligence of my migration agent who [did] not notify me of the Tribunal hearing. As a result, I did not attend the Tribunal hearing which resulted in dismissal of my application by the Tribunal.
3. The Court did not consider the effect and consequences of refusal of my visa application on my life and career.
4. The Court did not consider my hardship or compelling and compassionate circumstances. I with my wife, had to move to Tasmania from Melbourne in search of better work in my occupation. I finally got a job and nomination after going through months of financial hardship.
5. The Court simply noted that my nomination had been refused but did not consider the matters leading to the refusal of nomination and in fact that the refusal of nomination was incorrect. The refusal of nomination was also beyond my control. My nominating employer’s business did benefit from my working with the business in the nominated role of Human Resource Advisor.
6. Even though the refusal of nomination was beyond my control and through no fault of my own, I was not given any time to arrange alternative nomination.
7. The Court did not consider that refusal of my visa application because of refusal of my nomination was, at least, partly because of delay by the Department of Immigration in determining my application. This delay adversely affected the outcome of my visa application. My visa application would have succeeded if it were determined before refusal of my nomination.
Now I should note that none of these grounds were advanced in terms before the primary judge as a ground of review, although some of the associated material before the primary judge resonated with some of these themes. Accordingly and strictly, the appellants require leave in order to raise these new points.
Now no error on the part of the primary judge is asserted in relation to the specific ground of review that was before his Honour. Further, no explanation has been provided by the appellants as to why the new proposed grounds now before me were not pressed before the primary judge. Moreover, to the extent that the grounds are directed to error in the Tribunal’s decision, they invite merits review which must be rejected. Moreover, they impermissibly reduce the proceedings before the primary judge to a preliminary skirmish. Further, these new grounds are unclear and in any event lack merit.
Grounds one, three and four assert that the primary judge did not consider the first appellant’s circumstances, namely his work history, the consequences of the refusal and his compelling and compassionate circumstances. These circumstances were irrelevant. Moreover, the Tribunal’s decision turned on the appellants’ failure to appear at the hearing and seek reinstatement.
Moreover, had the appellants appeared before the Tribunal and had the Tribunal not made its dismissal and confirmation decision, the determinative issue would have been whether the first appellant had an approved sponsor nomination. The sole issue before the Tribunal would have been whether or not the Minister should have approved the nomination in respect of the position that the first appellant was nominated for as required by cl 187.233(3), being a mandatory criterion for the grant of the visa.
Now the first appellant was not the subject of an approved nomination. So these grounds establish no appellable error in the decision of the primary judge.
Ground two asserts that the primary judge did not consider the negligence of the appellants’ migration agent, who ostensibly failed to invite them to the hearing before the Tribunal. But the primary judge considered this matter. The primary judge noted that there was no sufficient evidence that the appellants had engaged at the relevant time a migration agent to represent them. Further, the failure of any agent to forward an invitation was not a sufficient excuse in circumstances where the appellants were properly invited to a hearing but failed to appear. These findings were open to the primary judge and no appellable error is established.
Grounds five to seven assert that the primary judge did not consider the circumstances leading to the refusal of the nomination, including the relevant Department’s delay in determining the application. But these grounds were not specifically raised below. In any event, the primary judge considered that any remittal would be futile in circumstances where the relevant criterion could not be satisfied on the basis of any different nomination to that declared in the application for the visa. In this regard, the primary judge was correct to find that in the circumstances of this case, remittal to the Tribunal would be futile.
In summary, leave should be refused to the appellants to rely on the new grounds of appeal as they do not make out any appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal and lack sufficient merit. But even if leave had been granted to raise these new grounds, I would have dismissed the appeal for the same reasons, particularly on the futility question.
Accordingly, the appeal should be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 16 December 2022
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