Sharma v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 882
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 882
File number: PEG 15 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 4 October 2023 Catchwords: MIGRATION – Temporary Skills Shortage visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in determining that it did not have jurisdiction in relation to the applicant’s review application – whether the Tribunal failed to properly consider the matters before it – whether the Tribunal erred by failing to provide the applicant with additional time to lodge a fresh nomination application – whether the applicant was denied procedural fairness or common law natural justice guarantees – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 338, 366M, 348, 360 & 476
Migration Regulations 1994 (Cth), reg 4.02 and cl 482.212 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 96
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (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 & Border Protection v Singh (2014) 231 FCR 437
Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 7 September 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 15 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANNU SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 OCTOBER 2023
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: 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 KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 14-16 & 32-33). She first arrived in Australia in February 2019 (CB 18).
On 20 May 2022, the applicant applied for a Temporary Skills Shortage (Class GK) (Subclass 482) visa (the “visa”) (CB 13-31). In that visa application, the applicant listed her nominated occupation as “Chef” in the “medium-term” visa stream (CB 16). She was sponsored in that position by Damiano Degennaro (the “sponsor”) (CB 79). The applicant provided various supporting documents with her visa application (CB 32-74) and nominated a registered migration agent to represent her in relation to that application (the “representative”) (CB 17-18 & 75-77).
On 12 September 2022, the sponsor (through the representative) contacted the Department of Home Affairs (the “Department”) requesting “an immediate withdrawal of [the] nomination application” (CB 83-84).
That same day (on 12 September 2022), the Department confirmed to the sponsor (through the representative) that his withdrawal request had been processed and the sponsor was also advised that the nomination application would no longer be processed (CB 81-82).
Later that day (also on 12 September 2022), the Department invited the applicant (through her representative) to comment on the fact that the sponsor did not have an approved nomination in relation to her and notified her that her visa application could not be linked to a new nomination application (CB 85-88). She was given 28 days within which to respond to that invitation to comment (CB 87).
No response was received from or on behalf of the applicant (CB 95).
On 14 October 2022, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 94-96). The delegate was not satisfied that the applicant met cl 482.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the applicant was not the subject of an approved nomination (CB 95).
On 21 October 2022, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 97-103). The applicant did not appoint a migration agent or other representative to assist her with the Tribunal review (CB 100).
On 21 October 2022, the Tribunal invited the applicant to comment on the validity of her application (CB 104-106). The Tribunal advised as follows (CB 105):
I am of the view that your application for review is invalid. At the time of the delegate’s decision to refuse to grant the visa, you were not identified in an approved nomination that has not ceased. Nor was there a valid and pending application for review before us of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act. However this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 4 November 2022. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
No response was received by or on behalf of the applicant (CB 115).
On 18 January 2023, the Tribunal determined that it did not have jurisdiction in relation to the matter (CB 113-115).
On 16 February 2023, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-6). The applicant also filed an affidavit (annexing a copy of the Tribunal’s decision and relevant notification letters) in support of her application (CB 7-12).
THE TRIBUNAL’S DECISION
The applicant’s application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
The Tribunal’s decision is three pages long and spans nine paragraphs.
In full, the Tribunal’s decision provides:
APPLICATION FOR REVIEW
1.An application was made to the Tribunal on 21 October 2022 for review of a Class GK subclass 482 Temporary Skills Shortage visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
2.The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.
3.A decision to refuse a subclass 482 Temporary Skills Shortage visa is reviewable under s.338(2) of the Act if the visa applicant made the visa application while in the migration zone and the decision was not made when the visa applicant was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared. In addition, one of the requirements in s.338(2)(d) must be met. Section 338(2)(d) provides as follows:
(d)if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii)a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii)a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
4.The Tribunal has reviewed the Department’s records and notes that the Department sent the applicant a s57 invitation to comment on information that the applicant was not identified in an approved subclass 482 nomination by her intended sponsor, Damiano Degennaro. As the applicant did not provide evidence of being the subject of an approved nomination, on 14 October 2022, the Department refused to grant the applicant a subclass 482 visa as she did not meet cl.482.212 of Schedule 2 to the Regulations.
5.The Tribunal is satisfied that at the time of the delegate’s decision to refuse to grant the visa, the applicant was not identified in an approved nomination that had not ceased. Nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act, nor of a decision not to approve the nomination under s.140GB of the Act.
6.The Tribunal sent a natural justice letter to the applicant on 21 October 2022 setting out its view that, due to the above, the applicant did not meet any of the subparagraphs of s.338(2)(d) and therefore it appeared that the Tribunal did not have jurisdiction to review the Department’s decision to refuse her a subclass 482 visa. The Tribunal invited the applicant to respond or comment by 20 June 2022. However, no response was received by 4 November 2022 and the Tribunal has received no further communication from the applicant to date.
7.The Tribunal is satisfied, based on its finding in paragraph 5 above, that the applicant does not fall within s.338(2)(d)(i), (ii), or (iii). It further finds that s.338(2)(d)(iv) does not apply to her, as it is a criterion for the subclass 407 visa that the applicant is identified in an approved nomination.
8.As the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.
DECISION
9.The Tribunal does not have jurisdiction in this matter.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 16 February 2023 contains four grounds of review, as follows:
1. The Tribunal’s decision is materially affected by jurisdictional error.
a.The consequence of a Tribunal decision being affected by jurisdictional error is that it is no decision at all.
b.The Court should issue a writ of certiorari quashing the Tribunal decision in that matter, and a writ of mandamus requiring the Tribunal to rehear the matter and determine it according to law.
2. The Tribunal Member failed to appropriately consider the matters before it.
a.The Tribunal Member failed to understand that I was working for Damino Degennaro.
b.Damiano Degennaro advised me that they had would apply for a nomination.
c. Damiano Degennaro did not even pay me correctly.
3.The inability of the Tribunal to not grant natural justice to the applicant in relation to the matter to grant some time to be able to lodge a fresh nomination application by an approved sponsor.
4.The Tribunal failed to act accordingly towards the merits of the case and failed to act in a way that was fair and just.
The applicant also filed an affidavit in support of that judicial review application (affirmed on 9 February 2023 and filed on 16 February 2023). That affidavit is more akin to written submissions which expand on the applicant’s grounds of review (set out above).
On 26 May 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 16 February 2023 (the applicant’s affidavit being taken as read an in evidence at the hearing), a Court Book numbering 115 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 10 August 2023 and the affidavit of service of Centaine Alexandra Mumford affirmed and filed on 22 August 2023 and a list of authorities filed on behalf of the Minister on 22 August 2023.
The applicant appeared before this Court on 7 September 2023 without legal representation. An interpreter was made available to assist the applicant at that hearing but the applicant indicated that she was content to proceed in English. The Court made it clear to the applicant that she could speak with and through the interpreter at any time as necessary. The interpreter remained for the duration of the hearing but was not needed. The Court is satisfied that no issues arose in this regard. The Court is satisfied that the applicant was able to adequately communicate with the Court and participate in the hearing.
The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (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) 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]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that her visa was rejected and she was told she could file a review with the Tribunal. She further explained that when she filed the application, the Tribunal told her that she was not in a position to file the application because she did not have a nomination. The applicant stressed that this was not her fault. Rather, it was her employer’s fault and she wanted an opportunity to explain what had happened.
The applicant’s concerns, to the extent that they identify any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Ground 1
As set out above, ground 1 provides:
1. The Tribunal’s decision is materially affected by jurisdictional error.
a.The consequence of a Tribunal decision being affected by jurisdictional error is that it is no decision at all.
b.The Court should issue a writ of certiorari quashing the Tribunal decision in that matter, and a writ of mandamus requiring the Tribunal to rehear the matter and determine it according to law.
Paragraph 7 of the applicant’s affidavit further expands on this ground, stating that:
7. In relation to Ground One, it is submitted that:
a.The Tribunal decision was based on its assessment that it has no jurisdiction to in respect to the merits review application.
b.Unlike the delegate, the Tribunal based its decision on s 338(d) of the Migration Act 1958 (Cth).
c.This misled the Tribunal to make its decision which was materially affected by jurisdictional error.
d.By reason of this failure, the Tribunal constructively failed to exercise its jurisdiction.
Essentially, the applicant claims that the Tribunal erred when determining that it did not have jurisdiction pursuant to s 338(d) of the Act and, as such, the Tribunal constructively failed to exercise its jurisdiction.
The Court notes (as outlined by this Court in Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 96) that, in order for the Tribunal’s jurisdiction to be enlivened in relation to the review of a delegate’s decision of this sort, that decision must be a “Part 5-reviewable decision” within the meaning of s 338 of the Act.
Part 5-reviewable decisions are reviewable by the Tribunal in its Migration and Refugee Division. They relate to the grant or cancellation of visas in some circumstances but do not include decisions relating to protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate: s 366M of the Act.
Part-5 reviewable decisions are defined in s 338 of the Act.
In the circumstances of this matter, s 338 of the Act (as at 14 October 2022, being the date of the decision made by the delegate of the Minister refusing to grant the applicant the visa), relevantly provided:
Division 2—Part 5‑reviewable decisions
338 Definition of Part 5‑reviewable decision
…
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
…
(d)if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii)a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii)a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv)except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
Regulation 4.02(1A) of the Regulations (as at 14 October 2022, being the date of the decision made by the delegate of the Minister refusing to grant the applicant the visa) prescribed that the applicant’s visa was one which was subject to s 338(2)(d) of the Act. Regulation 4.02(1A) provided as follows (emphasis added):
4.02 Part 5‑reviewable decisions and who may apply for review
(1A) For paragraph 338(2)(d) of the Act, the following visas are prescribed:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa;
(aa) a Subclass 402 (Training and Research) visa;
(b) a Subclass 407 (Training) visa;
(c) a Subclass 416 (Special Program) visa;
(e) a Subclass 420 (Entertainment) visa;
(k) a Subclass 457 (Temporary Work (Skilled)) visa;
(ka) a Subclass 482 (Temporary Skill Shortage) visa;
(l) a Subclass 488 (Superyacht Crew) visa;
(la)a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
(m) a Subclass 870 (Sponsored Parent (Temporary)) visa.
In relation to the matter presently before the Court, in order for the Tribunal to have jurisdiction, it required (at the time of application to the Tribunal):
(a)the applicant to be the subject of a nomination that was approved or pending; or
(b)that there was a pending application for review before the Tribunal in relation to the decision not to approve the nomination.
Here, the applicant was not the subject of an approved nomination. The nomination application in this matter was withdrawn by the sponsor on 12 September 2022 (CB 81-84).
At the time that the applicant’s visa was refused by a delegate of the Minister (being on 14 October 2022), the applicant was not the subject of an approved nomination and there could be no pending review of the nomination decision (because no decision was made to refuse the nomination application – it was simply withdrawn by the sponsor).
On that basis, the delegate’s decision was not a “Part 5-reviewable decision” as specified in s 338(d) of the Act and the Tribunal was correct to find that it did not have jurisdiction in relation to the applicant’s review application.
No jurisdictional error arises in relation to ground 1.
Ground 2
Ground 2 states:
2. The Tribunal Member failed to appropriately consider the matters before it.
a.The Tribunal Member failed to understand that I was working for Damino Degennaro.
b.Damiano Degennaro advised me that they had would apply for a nomination.
c. Damiano Degennaro did not even pay me correctly.
Paragraphs 8, 9 and 10 of the applicant’s affidavit further expand on this ground, stating that:
8.In relation to Ground Two, it is submitted that the Tribunal Member failed to appropriately consider the matters before it.
9. I contend that the Tribunal has failed to consider my merits review application.
10.I worked for Damino Degennaro, who was no the best employer. It is not my fault that he was not an approved sponsor for nominating my visa. It was not approved due to exceptional circumstances beyond my control.
The applicant here states that the Tribunal failed to properly consider matters before it, including the merits of her review application. The applicant also claims that she was not at fault and the nomination was not approved because of exceptional circumstances beyond her control.
To the extent that the applicant claims that the Tribunal erred by failing to consider the merits of the applicant’s review application, the Court disagrees for the reasons that follow.
Section 348 of the Act explains the circumstances in which the Tribunal must review a decision and relevantly provides:
348 Tribunal to review Part 5‑reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
As outlined above, the delegate’s decision was not a “Part 5-reviewable decision”. In those circumstances, the Tribunal was not required (and had no jurisdiction) to review the delegate’s decision, including the merits of the applicant’s case.
Further, as correctly submitted by the Minister (at paragraph [30] in written submissions filed in this Court on 10 August 2023), the Tribunal can only be found to have failed to take into account a consideration if it is bound to consider that consideration. Here, the Tribunal had no jurisdiction to consider the applicant’s review application and did not do so.
In the circumstances of this matter, the Tribunal was only required to consider whether it had jurisdiction. In doing so, it considered whether the decision the subject of the applicant’s review application was a “Part 5-Reviewable decision” under s 338(2)(d) of the Act. Specifically, the Tribunal needed to determine whether, as at 14 October 2022 (being the time of the delegate’s decision refusing to grant the applicant the visa), the applicant was identified in an approved nomination (that had not ceased) or whether there was a pending application for review before the Tribunal.
The Tribunal did so here. It identified the relevant legislative provisions (at [3] in its reasons), detailed the delegate’s decision (at [4] in its decision) and considered for itself whether the requirements in s 338(2)(d) of the Act were met at the time of the delegate’s decision. The Tribunal then made findings in that regard (at [5] in its decision)
No error arises in this regard.
Insofar as the applicant suggests that the Tribunal failed to consider that there were exceptional circumstances beyond her control (that related to why the nomination was not approved), the Court, while sympathetic, again disagrees.
The Court notes that the nomination in this matter was not refused. The sponsor withdrew the nomination application before a decision was made by a delegate of the Minister in relation to that nomination application.
In any event, even if the nomination application had been refused, the delegate’s decision before the Tribunal did not relate to that nomination application. It related to the applicant’s visa application. For the purposes of the application before the Tribunal, the first determination the Tribunal was required to make was whether it had jurisdiction in the matter. Once it had determined that it did not have jurisdiction (because the delegate’s decision was not a “Part 5-reviewable decision”), the Tribunal was not required to consider the application or the delegate’s decision further.
No jurisdictional error arises in this regard.
Ground 3
Ground 3 provides:
3.The inability of the Tribunal to not grant natural justice to the applicant in relation to the matter to grant some time to be able to lodge a fresh nomination application by an approved sponsor.
Paragraphs 11 and 12 of the applicant’s affidavit further expand on this ground, stating that:
11.In relation to Ground Three, it is submitted that the inability of the Tribunal to not grant natural justice to the applicant in relation to the matter to grant some time to be able to lodge a fresh nomination application by an approved sponsor. I should have been allowed an adjournment to complete this work.
12.I believe that the decision is unreasonable as the circumstances surrounding my matter are outside of my control - I have no control over the time frame or changes in the law.
By ground 3, the applicant raises concerns that the Tribunal did not provide the applicant with additional time within which to lodge a fresh nomination application by an approved sponsor.
The Court notes that there is no evidence before the Court to suggest that the applicant ever requested additional time. The Tribunal invited the applicant to comment on the validity of her application (by letter dated 21 October 2022 sent by email, CB 104-106). The applicant did not respond to that invitation (CB 115).
Further, even if the applicant had been given additional time to make a fresh nomination application, this could not have assisted her. The requirements in s 338(2)(d) of the Act must be met at the time of the refusal of the visa application (that is, at the time of the delegate’s decision which, in this case, was made on 14 October 2022). Hence, even if the applicant had subsequently found a new sponsor and that sponsor made a new nomination application, that would not have assisted the applicant with her Tribunal review the subject of application before this Court.
No jurisdictional error arises in this regard.
Insofar as the applicant claims above that she was not granted natural justice, the Court will address this below with its consideration in relation to procedural fairness.
Ground 4
Ground 4 states that:
4.The Tribunal failed to act accordingly towards the merits of the case and failed to act in a way that was fair and just.
Paragraphs 13 and 14 of the applicant’s affidavit further expand on this ground, stating that:
13.In relation to Ground Four, it is submitted that the Tribunal also failed to consider that it failed to give me an opportunity to give evidence and make submissions regarding my application at a hearing.
14.The Tribunal failed to provide me with procedural fairness by failing to comply with s.360(1) of the Act, leading the Tribunal to act in a way that was not fair or just.
Insofar as the applicant suggests that she was denied procedural fairness or common law natural justice guarantees, the Court references its decision in Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941 (“Raj”) (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640 (“Singh”) and WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”)) and again emphasises that the common law requires the Tribunal to bring to an applicant’s attention any critical issue upon which the Tribunal’s decision is likely to turn. Further, the Tribunal is also required to provide an applicant with an opportunity to comment on or provide a response to such an issue: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
In the circumstances of this matter, the Court notes that:
(a)the applicant was sent a letter on 21 October 2022 (by email sent to her nominated email address) inviting her to comment on the validity of her review application lodged with the Tribunal (CB 104-106);
(b)no response was provided by or on behalf of the applicant (CB 115); and
(c)the Tribunal referenced this in its written reasons for decision (at [6], CB 115).
Here, as was the case in Raj (and in Singh and WZAVO), it cannot be said that the applicant was denied the right to present her case.
To the extent that the applicant suggests that the Tribunal should have invited her to attend a hearing before it (as per s 360(1) of the Act), the Court disagrees for the reasons that follow.
As this Court has previously outlined in Raj, Singh and WZAVO, whether or not the Tribunal is under any obligation to invite an applicant to attend a hearing in matters such as this (where the Tribunal has correctly determined that it has no jurisdiction to review the matter) has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”).
In Benissa, the Federal Court relevantly determined as follows:
28.In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29.Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30.The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31.The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32.In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33.First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34.Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35.Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36.Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
Here, as in Benissa, the issues arising related to whether the Tribunal had jurisdiction in the matter – not in relation to the decision under review itself (that is, whether or not the applicant should have or could have been granted the visa). The Court is satisfied that the applicant suffered no practical injustice arising from the Tribunal denying her a hearing concerning jurisdiction. The Court is also satisfied that there was no obligation arising from the requirements of procedural fairness in s 360(1) of the Act for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
No jurisdictional error arises in relation to ground 4.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 16 February 2023 fail to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 October 2023
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