Sheng v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 725
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sheng v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 725
File number: PEG 347 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 15 April 2021 Catchwords: MIGRATION – Nomination visa – decision of the Administrative Appeals Tribunal – where the applicants lost the right to attend a hearing – whether the first applicant had no approved nomination – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), Pt 5, div 5, ss 338, 359, 359A, 359B, 359C, 360, 363A, 379A, 379C, 494C
Migration Regulations 1994 (Cth), reg 2.04, cll 186.223, 186.233 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 96 Date of hearing: 15 April 2021 Place: Perth Applicants: The first applicant appeared in person and on behalf of the second applicant and the third applicant Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 347 of 2020 BETWEEN: JIN LIN SHENG
First Applicant
LIFANG CHEN
Second Applicant
MIN SHENG
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicants are citizens of China. The first applicant and the second applicant are husband and wife respectively. The third applicant is their daughter. They arrived in Australia, it appears, in 2013 (Court Book (“CB”) 12).
On 7 February 2018, the applicants applied for an Employer Nomination (subclass 186) visa (the “visa”) (CB 1-18). The first applicant was the primary applicant. The second and third applicants were included as members of the family unit. The first applicant identified his nominated occupation as “Metal Fabricator”.
On 19 December 2018, the Department of Home Affairs invited the applicants to comment on the following information (CB 20-23):
Nomination refused
The nomination submitted to the department by The Trustee for G P Phillips Family Trust listing you as their Nominee has been refused. This means that your visa application cannot be approved
On 24 January 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 24-33). The delegate was not satisfied that the first applicant met cl 186.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the first applicant was not the subject of an approved nomination. As the first applicant did not meet the primary criteria, the second and third applicants could not meet cl 186.311.
On 8 February 2019, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 34-36).
On 28 September 2020, the applicants were sent a letter inviting them to appear before the Tribunal on 20 October 2020 (CB 41-43). On 16 October 2020, the Tribunal received, by post, a response to the hearing invitation stating that the applicants would attend (CB 47-50).
On 30 September 2020, the Tribunal sent the applicants an “invitation to comment on the following information” by 14 October 2020 (CB 45-46):
…
•The application for approval of the nominated position made by THE TRUSTEE FOR GP PHILLIPS FAMILY TRUST (the nominator) was refused by a delegate of the Minister for Immigration. The nominator did not seek review of that decision with the AAT, this means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
…
The invitation continued:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
On 16 October 2020, the applicants sent an email to the Tribunal that provided (CB 55):
Please can we request an extension of time to respond to the Tribunal’s invitation to comment.
We are unrepresented, cannot speak English and are in the process of seeking legal advice.
We have not been sent a copy of the nomination refusal and our migration agent is not responding to our calls. We were not aware that the nomination application was refusal in the first place.
We humbly request an extension of time of 2 weeks while we attempt to locate the nomination refusal and obtain legal advice.
On 20 October 2020, the Tribunal wrote to the applicants and informed them that, as they had failed to respond to the invitation to comment before 14 October 2020, they had lost the entitlement to attend the hearing (CB 58).
The hearing scheduled for the same day (being 20 October 2020) was cancelled.
On 20 October 2020, the Tribunal affirmed the decision not to grant the applicants the visa (CB 62-67).
On 23 November 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 28 paragraphs.
The Tribunal began by identifying the procedural history of the visa application. The Tribunal identified the type of visa under review, the stream the applicants had applied for and the reason the delegate refused the visa (at [1]-[5]).
The Tribunal then noted that it had invited the applicants to comment on information on 30 September 2020 and that the applicants had not responded to that invitation (including as at the date of decision). On that basis, the applicants had lost the right to attend a hearing and the Tribunal proceeded to determine the application on the materials before it (at [6]-[9]).
The Tribunal then stated that the issue in the present case was whether the first applicant was the subject of an approved nomination and whether the second and third applicants were “members of the family unit” of a person who met the relevant visa criteria (at [11]).
The Tribunal then summarised the requirements of cl 186.223 (at [12]-[13]).
The Tribunal explained that the delegate had invited the applicants to comment on information regarding the refused nomination (at [14]) and noted that the Tribunal had also invited the applicants to comment on that same information (at [15]).
The Tribunal continued:
17. On 13 October 2020, the Tribunal provided the applicant with an SMS reminder regarding the impending hearing scheduled for 20 October 2020.
18. On 16 October 2020, the applicant approached the Western Australia Registry desk to enquire regarding the substance of the SMS reminder and advised the Registry that he had not received correspondence regarding an opportunity to attend a hearing before the Tribunal. In this regard, the Tribunal has confirmed that the applicant was provided with advice concerning the attendance at hearing and the invitation to comment in accordance with 359A, which were provided through the email address designated on the application for review by the Tribunal that was lodged on 7 February 2018.
19. The Tribunal has considered the claim that the applicant did not receive correspondence from the Tribunal concerning the circumstances of his case and is satisfied that the Tribunal notified the applicant at the address provided by the applicant. In this regard, the Tribunal is satisfied that all correspondence was sent to the email address advised to the Tribunal on the Application for Review form completed by the applicant and lodged with the Tribunal on 7 February 2018.
20. The Tribunal considers that the applicant has not provided all of the information requested by the Tribunal within the prescribed period (or with a period as extended, if applicable). As such, the Tribunal has no power under s.359B(4) to now extend the time for the applicant to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].
21 . In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if the applicants have no entitlement to a hearing, the Tribunal has no power to permit the applicants to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.
22. The Tribunal in proceeding to decision finds that there is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.186.233(3) of Schedule 2 to the Migration Regulations.
23. Accordingly, the requirements of cl.186.233(3) are not met.
24. Therefore, cl.186.223 is not met.
25. On the basis of the evidence before the Tribunal, the decision should be affirmed.
As the first named applicant was unable to satisfy the primary criterion, the Tribunal affirmed the decision not to grant the second applicant and the third applicant the visa (at [27]).
On the basis of the above, the Tribunal affirmed the decision not to grant the applicants the visa (at [28]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed in this Court on 23 November 2020 contains three grounds of review that provide (without alteration):
Ground One
1. The Second Respondent made a jurisdictional error by failing to fulfill its duty to afford procedural fairness to the Applicants.
Particulars
a. The essence of natural justice is that a person should be given a hearing before a decision is made that adversely affects a right, interest or expectation which they hold.
b. There is no standard formula for a fair hearing. The generic factors that will determine the requirements in each case include:
(i) the statutory framework;
(ii) the circumstances concerning the individual decision to be made;
(iii) the subject matter of the decision;
(iv) the nature of the inquiry; and (v) the rules of the tribunal.
c. On 30 September 2020, the Second Respondent wrote the Applicants inviting the Applicants to comment (ITC) on information that the Second Respondent considered would be the reason for affirming the decision of the Department of Home Affairs (Department).
d. At paragraph 18 of the Second Respondent’s Decision Record, the Second Respondent stated that the ITC was provided through email address designated on the application for review by the Second Respondent that was lodged on 7 February 2018.
e. The application for review by the Second Respondent was lodged by the Applicants’ then migration agent, and the contact email address on the application was the migration agent’s email address.
f. The migration agent did not forward the Applicants the ITC upon the receipt of the ITC.
g. On 13 October 2020, the Second Respondent provided the Applicants with an SMS reminder regarding the hearing scheduled for 20 October 2020.
h. On 16 October 2020, the Applicants approached the Western Australia Registry to enquire about the content of the SMS reminder and advised the Registry that they has not received the ITC and the Second Respondent’s correspondence regarding an opportunity to attend a hearing.
i. Despite the Applicants advised the Second Respondent that they did not receive any correspondence from the Second Respondent due to the then migration agent’s negligence, the Second Respondent still made the findings at paragraph 19 of its Decision Record that:
‘[t]he Tribunal has considered the claim that the applicant did not receive correspondence from the Tribunal concerning the circumstances of his case and is satisfied that the Tribunal notified the applicant at the address provided by the applicant. In this regard, the Tribunal is satisfied that all correspondence was sent to the email address advised to the Tribunal on the Application for Review form completed by the applicant and lodged with Tribunal on 7 February 2018’.
j. In light of the above, it is respectfully submitted that the Second Respondent did not fulfil its duty to afford procedural fairness to the Applicants.
Ground Two
2. The Second Respondent made a jurisdictional error in failing to take into account and give weight to a relevant consideration.
Particulars
a. The Second Respondent has a statutory duty to take into account and give weight to a relevant consideration of a matter.
b. Although the Second Respondent, as stated at paragraph 19 of its Decision Record, has considered the claim that the Applicants did not receive correspondence from the Second Respondent concerning the circumstances of their matter, the Second Respondent did not involve an active intellectual process directed at the consideration.
c. Should the Second Respondent have involved active intellectual process directed at the consideration, the Applicants would have been given an extension to prepare the case before the Second Respondent.
Ground Three
3. The Second Respondent made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds.
Particulars
a. At paragraphs 8 and 21 of its Decision Record, the Second Respondent made the conclusion that sections 359C and 360(3) of the Migrations Act 1958 (Cth) (Act) applied on the ground that the Applicants had not provided the ITC within the prescribed period and no extension had been sought or granted prior to the expiration of time on 14 October 2020.
b. As submitted above, the Applicants did not provide the ITC within the prescribed period was due to their then migration agent’s negligence. It was a factor which was beyond the Applicants’ control and should have been given proper weight by the Second Respondent in reaching its decision.
c. The decision made by the Second Respondent is so unreasonable that no reasonable person would have made it. It is a decision that is illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
The first applicant also filed a sworn affidavit dated 19 November 2020 which states (without alteration):
1. On 6 February 2018, my employer, being The Trustee for G P Phillips Family Trust, lodged an application for an Employer Nomination (Permanent) (Class EN) visa nomination (Nomination).
2. On 7 February 2018, I applied to the Department of Home Affairs (First Respondent) for an Employer Nomination (Permanent) (Class EN) visa (Visa).
3. On 19 December 2018, the First Respondent refused the Nomination application.
4. On 24 January 2019, the First Respondent refused to grant me the Visa.
5. On 19 February 2019, I applied to the Second Responded to review the First Respondent’s decision.
6. My then migration agent [name omitted] lodged an application for review at the Second Respondent.
7. On 13 October 2020, I received a SMS reminder regarding the impending hearing scheduled for 20 October 2020 (Hearing).
8. On 16 October 2020, I approached the Second Respondent to enquire about the SMS reminder and told the Second Respondent that I had not received any correspondence from the Second Respondent.
9. On 20 October 2020, the Hearing did not proceed. On the same day, we received the Decision Record from the Second Respondent.
10. I am aggrieved by the Second Respondent’s decision.
11. I therefore seek orders that the decision of the Second Respondent by quashed and that the matter be remitted to the Tribunal differently constituted for consideration in accordance with law.
The applicants were given an opportunity to file any amended application, supporting affidavit evidence and an outline of written submissions. Unfortunately, no further materials were filed by the applicants.
The materials before the Court thus include the application for judicial review filed on 23 November 2020, the first applicant’s affidavit sworn 19 November 2020, a Court Book numbering 69 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 9 March 2021.
The applicants appeared before the Court without legal representation. They were assisted by a Mandarin interpreter. The first applicant indicated that he would speak on behalf of the second applicant and the third applicant. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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: 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 decision or grant the applicants the visa. 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 first applicant raised concerns with the conduct of his migration agent and stressed that he had not been sent documents relevant to his matter. The Court will address the first applicant’s oral submissions below.
CONSIDERATION
Ground 1
Ground 1 provides (without alteration):
Ground One
1. The Second Respondent made a jurisdictional error by failing to fulfill its duty to afford procedural fairness to the Applicants.
Particulars
a. The essence of natural justice is that a person should be given a hearing before a decision is made that adversely affects a right, interest or expectation which they hold.
b. There is no standard formula for a fair hearing. The generic factors that will determine the requirements in each case include:
(i) the statutory framework;
(ii) the circumstances concerning the individual decision to be made;
(iii) the subject matter of the decision;
(iv) the nature of the inquiry; and
(v) the rules of the tribunal.
c. On 30 September 2020, the Second Respondent wrote the Applicants inviting the Applicants to comment (ITC) on information that the Second Respondent considered would be the reason for affirming the decision of the Department of Home Affairs (Department).
d. At paragraph 18 of the Second Respondent’s Decision Record, the Second Respondent stated that the ITC was provided through email address designated on the application for review by the Second Respondent that was lodged on 7 February 2018.
e. The application for review by the Second Respondent was lodged by the Applicants’ then migration agent, and the contact email address on the application was the migration agent’s email address.
f. The migration agent did not forward the Applicants the ITC upon the receipt of the ITC.
g. On 13 October 2020, the Second Respondent provided the Applicants with an SMS reminder regarding the hearing scheduled for 20 October 2020.
h. On 16 October 2020, the Applicants approached the Western Australia Registry to enquire about the content of the SMS reminder and advised the Registry that they has not received the ITC and the Second Respondent’s correspondence regarding an opportunity to attend a hearing.
i. Despite the Applicants advised the Second Respondent that they did not receive any correspondence from the Second Respondent due to the then migration agent’s negligence, the Second Respondent still made the findings at paragraph 19 of its Decision Record that:
‘[t]he Tribunal has considered the claim that the applicant did not receive correspondence from the Tribunal concerning the circumstances of his case and is satisfied that the Tribunal notified the applicant at the address provided by the applicant. In this regard, the Tribunal is satisfied that all correspondence was sent to the email address advised to the Tribunal on the Application for Review form completed by the applicant and lodged with Tribunal on 7 February 2018’.
j. In light of the above, it is respectfully submitted that the Second Respondent did not fulfil its duty to afford procedural fairness to the Applicants.
By ground 1 the applicants appear to argue that they were denied procedural fairness as they were not given an opportunity to attend a hearing.
As the applicants point out in particular (b)(i), the statutory framework will often determine the requirements of a “fair hearing” or, alternatively, whether there is any right to a hearing at all.
In this matter, the applicants lost their right to attend a hearing. This arose because of the operation of the statute. Here, the “cascading effect” of ss 359C, 360(2) and (3) and 363A of the Act required the Tribunal to cancel the hearing as the Tribunal had no power to enable the applicants to appear before it.
What ground 1 appears to address are the circumstances that resulted in them being denied the “right” to attend a hearing. Relevantly, the applicants stress that their migration agent was negligent and that, in those circumstances, it was “unfair” for the Tribunal to deny them an opportunity to attend a hearing.
Context is important here. Importantly, the applicants lost their right to attend a hearing because they failed to respond to the invitation to comment dated 30 September 2020. The invitation to comment was sent via email to the email address provided on the applicants’ application to the Tribunal.
Before this Court, the first applicant stressed that he did not receive the invitation to comment.
The applicants claim that the email used by the Tribunal was their “agent’s email address” and that “the agent did not pass the correspondence on to them”. They argue that, as the agent did not provide them with the relevant correspondence, they were unable to respond in time and, as such, lost the opportunity to attend the hearing.
The Tribunal was alive to the fact that the applicants were claiming not to have received any correspondence from the Tribunal. In its decision, the Tribunal states:
18. On 16 October 2020, the applicant approached the Western Australia Registry desk to enquire regarding the substance of the SMS reminder and advised the Registry that he had not received correspondence regarding an opportunity to attend a hearing before the Tribunal. In this regard, the Tribunal has confirmed that the applicant was provided with advice concerning the attendance at hearing and the invitation to comment in accordance with 359A, which were provided through the email address designated on the application for review by the Tribunal that was lodged on 7 February 2018.
19. The Tribunal has considered the claim that the applicant did not receive correspondence from the Tribunal concerning the circumstances of his case and is satisfied that the Tribunal notified the applicant at the address provided by the applicant. In this regard, the Tribunal is satisfied that all correspondence was sent to the email address advised to the Tribunal on the Application for Review form completed by the applicant and lodged with the Tribunal on 7 February 2018.
20. The Tribunal considers that the applicant has not provided all of the information requested by the Tribunal within the prescribed period (or with a period as extended, if applicable). As such, the Tribunal has no power under s.359B(4) to now extend the time for the applicant to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].
21 . In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if the applicants have no entitlement to a hearing, the Tribunal has no power to permit the applicants to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.
There is no evidence that the applicants were, in fact, represented by a migration agent before the Tribunal. The application for review at the Tribunal indicated that all correspondence was being sent to the first applicant. The Court is, nevertheless, prepared to accept that the applicants did not receive the correspondence until the first applicant attended the Tribunal registry in person and obtained a copy of the correspondence.
This then begs the question: accepting that the applicants were not aware of the correspondence, were they denied procedural fairness?
As the Tribunal noted, the invitation to comment was sent to “the last known email address provided in connection with the review”. As such, the Tribunal complied with s 379A(5)(b) and (d). By virtue of s 379C(5), the applicants are deemed to have received the document at the end of the day (i.e., at the end of 30 September 2020). This is so even if they may not actually have received, or been made aware of, the invitation to comment.
The applicants state that it was a result of negligence that their alleged agent did not provide them with the invitation to comment. They do not suggest that the alleged agent acted fraudulently: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. Negligence or incompetence on the part of a third party will not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 (“SZLIX”). Accordingly, even if, on the facts of this case, there was a third party involved and that third party failed to provide the invitation to comment to the applicants in order to enable them to respond within time, it cannot amount to jurisdictional error on the part of the Tribunal.
The invitation to comment (which the Court confirms complied with s 359A and s 359B) was sent in accordance with s 379A and, in the absence of a response by 14 October 2020, the applicants lost their entitlement to appear. It does not matter that the applicants were not made aware of the correspondence until after the time period had expired. They were deemed to have received the invitation to comment on 30 September 2020. In those circumstances, they lost the right to attend a hearing. Further, the Tribunal had no power to extend the time for them to comply with the invitation to comment or to reinstate their entitlement to appear at a hearing (even if the Tribunal was satisfied that the applicants’ alleged agent had failed to do what the applicants say they were required to do).
While arguably “harsh”, the Tribunal’s actions do not amount to a denial of procedural fairness. The Tribunal acted in accordance with Division 5 of Part 5 of the Act. It correctly concluded that, notwithstanding the circumstances here, it could not invite the applicants to attend a hearing.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
Ground Two
2. The Second Respondent made a jurisdictional error in failing to take into account and give weight to a relevant consideration.
Particulars
a. The Second Respondent has a statutory duty to take into account and give weight to a relevant consideration of a matter.
b. Although the Second Respondent, as stated at paragraph 19 of its Decision Record, has considered the claim that the Applicants did not receive correspondence from the Second Respondent concerning the circumstances of their matter, the Second Respondent did not involve an active intellectual process directed at the consideration.
c. Should the Second Respondent have involved active intellectual process directed at the consideration, the Applicants would have been given an extension to prepare the case before the Second Respondent
By ground 2, the applicants allege that the Tribunal did not give “active intellectual consideration” to the fact that their (alleged) agent had not provided the applicants with the invitation to comment.
For the reasons given in ground 1, the Tribunal correctly proceeded on the assumption that the applicants had lost an entitlement to attend a hearing and that the Tribunal had no power to invite them to attend a hearing. The Tribunal took into account the relevant circumstances (i.e., that the applicants’ had not received any correspondence from the Tribunal) and, after considering and referencing case law on the issue, determined that the applicants could not appear before the Tribunal.
The Court does not accept that the Tribunal failed to give active and intellectual consideration to the “circumstances” that resulted in the applicants losing their right to attend a hearing.
Ground 2 is, accordingly, dismissed.
Ground 3
Ground 3 provides (without alteration):
3. The Second Respondent made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds.
Particulars
a. At paragraphs 8 and 21 of its Decision Record, the Second Respondent made the conclusion that sections 359C and 360(3) of the Migrations Act 1958 (Cth) (Act) applied on the ground that the Applicants had not provided the ITC within the prescribed period and no extension had been sought or granted prior to the expiration of time on 14 October 2020.
b. As submitted above, the Applicants did not provide the ITC within the prescribed period was due to their then migration agent’s negligence. It was a factor which was beyond the Applicants’ control and should have been given proper weight by the Second Respondent in reaching its decision.
c. The decision made by the Second Respondent is so unreasonable that no reasonable person would have made it. It is a decision that is illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
As the Court understands this ground, the applicants are suggesting that it was unreasonable for the Tribunal not to have granted an extension of time to respond to the invitation to comment in light of the circumstances surrounding their failure to respond.
It cannot be said that it was “unreasonable” for the Tribunal not to have granted an extension of time in circumstances where the Tribunal had no power to do so.
Section 359B(4) of the Act states:
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
Having found that the applicants were properly notified (which the Court accepts for the reasons given in relation to ground 1 above), the Tribunal was only able to extend the time to respond if a request for an extension was made before 14 October 2020. Here, no request was made until 16 October 2020. The Tribunal, at that point, had lost any power to extend the time to respond to the invitation to comment.
Accordingly, it was reasonable, logical and rational for the Tribunal not to extend time (notwithstanding the particular, rather unfortunate, circumstances of this matter). This is so because (in effect) it was the only decision that was open to the Tribunal.
Ground 3 is, accordingly, dismissed.
First Applicant’s Affidavit
The first applicant’s affidavit does not identify any jurisdictional error. It provides factual background which the Court has no reason to dispute.
The Court has accepted (above in ground 1) that the applicants were assisted by a third party when lodging their visa application and that they did not receive correspondence from the Tribunal prior to 16 October 2020. Accordingly, anything that arises from the affidavit at
[5]-[8] has been addressed in the context of ground 1.
The first applicant’s affidavit fails to identify any jurisdictional error
Oral submissions
At the hearing, the first applicant explained that he “did not receive any notifications”. This, he advised, included a notification of the sponsor’s decision, the delegate’s decision, the invitation to comment, the invitation to attend the hearing and the Tribunal’s decision.
The applicants were notified of the decision in relation to the sponsor on two occasions:
(a)on 19 December 2018 when the applicants were invited by the Department to comment on the fact that the sponsor’s nomination had been refused (CB 20-23). That invitation was sent to the email address nominated in the visa application for correspondence to be sent (CB 9); and
(b)on 30 September 2020 when the Tribunal wrote to the applicants inviting them to comment on the fact that the sponsor’s nomination had been refused (CB 45-46). That invitation was also sent to the email that the applicants had nominated in their application for review at the Tribunal (CB 35).
These notifications were sent to the applicants’ nominated email addresses. As such, the applicants are deemed to have received those notifications at the end of the day they were sent: the Act, ss 379C and 494C.
Before this Court the first applicant emphasised that the “decision in relation to the sponsor was important” and he “should have been advised”. As explained above, the applicants were properly notified.
In relation to the delegate’s decision, on 24 January 2019, the delegate’s decision was sent to the email address nominated in the visa application. Accordingly, pursuant to s 494C of the Act, the applicants were deemed to have received the decision at the end of the day it was sent.
The invitation to comment was sent to the applicants’ nominated email address on 30 September 2020. The applicants were, therefore, deemed to have received that notification at the end of the day: the Act, s 379C.
Finally, the Tribunal’s decision was sent to the email address that the applicants had provided to the Tribunal (by updating their contact information on 16 October 2020). Again, the applicants were deemed to have received the decision at the end of the day it was sent: s 379C.
Accordingly, the applicants are deemed (by virtue of the Act) to have received all of the correspondence sent to them (notwithstanding that the first applicant now says that this did not occur). The deeming provisions are inflexible in this regard.
At the hearing, the first applicant explained that the relevant email address was the email address for his migration agent. However, the mobile number he provided was his own. The first applicant suggested that the Tribunal did not call him to find out which contact was his “personal” contact. He also stressed that the “Immigration Department” made no effort to confirm his contact details and he “should not have to take the blame for that”.
There was no obligation on the part of the Department or the Tribunal to confirm that the relevant correspondence was received by the applicants or that the contact details provided were “their own”. It is for the applicants to maintain and update their contact details.
Further, the Department and the Tribunal were required by law to send the correspondence to the nominated addresses that the first applicant provided.
The fact that the applicants did not receive relevant correspondence in their own right does not amount to jurisdictional error on the facts of this case. The Tribunal acted in accordance with the Act and nothing more in this regard was required of the Tribunal.
There is also no evidence that the applicants were represented by a migration agent before the Tribunal. The review application filed with the Tribunal expressly stated that the correspondence was to be sent to “the review applicant”.
Nonetheless, as the Court has explained in the context of ground 1, to the extent a third party was involved (migration agent or otherwise) any failure to provide the applicants’ with the various pieces of correspondence amounts to incompetence and nothing more: SZLIX. There is nothing to suggest any fraudulent motive on the part of an agent.
To the extent the applicants have concerns about the conduct of any migration agents, they are directed to the services provided by the Office of the Migration Agents Registration Authority.
Finally, to the extent that the first applicant refers to the “cancellation” of his visa and to his “457” visa, any such decision is not under review in these proceedings. Accordingly, it cannot give rise to jurisdictional error on the part of the Tribunal.
No jurisdictional error is identified in the first applicant’s oral submissions.
Otherwise
Ms Tattersall for the Minister noted that, on the facts of this case, the sponsor never sought review of the Minster’s delegate’s decision not to approve the nomination. Ms Tattersall noted that, in some circumstances where a sponsor has not sought review of the Minister’s delegate’s decision, the Tribunal will not have jurisdiction to consider the visa applicant’s application: the Act, s 338(2)(d).
The Court expressed a preliminary view that the visa the subject of this application did not fall within s 338(2)(d) of the Act (as it was not prescribed in the Regulations) and, as such, the Tribunal did have jurisdiction to consider the application. However, out of caution, the Court granted Ms Tattersall additional time to confirm the Minister’s position and, if necessary, file written submissions.
Ms Tattersall advised the Court on 31 March 2021 that the Minister did not need to file additional written submissions as any concern in this regard did not arise.
The Court agrees.
Section 338(2)(d) applies to “prescribed” visa classes. Those visa classes are prescribed in reg 4.02(1A). Relevantly, the visa that the first applicant applied for is not a “prescribed” visa class. On that basis, the Tribunal did have jurisdiction.
The Court has, in its duty to the self-represented litigant, considered whether any error arises on the face of the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court notes that there are two “errors” in the Tribunal’s decision.
The first appears at [6] wherein the Tribunal refers to having sent the applicants an invitation to comment pursuant to s 359(2). This is incorrect. The Tribunal’s invitation was issued pursuant to s 359A of the Act. Section 359 relates to an invitation to provide information. The Tribunal invited the applicants to “comment on or respond to” information.
Notwithstanding this error, it is inconsequential to the Tribunal’s decision. The consequences of failing to provide information are the same as the consequences of failing to comment or respond to information (i.e., in both cases an applicant loses an entitlement to attend a hearing). Further, at [18] the Tribunal correctly refers to s 359A of the Act when referring to the same document as referenced at [6]. The erroneous reference in [6] is, most likely, a typographical error.
Typographical error or not, the erroneous reference to s 359 of the Act could not have realistically deprived the applicants of a successful outcome. As such, any error was immaterial and does not amount to jurisdictional error.
A second “error” also arises in [6] of the Tribunal’s decision and again at [22] and [23]. The Tribunal refers to cl 186.233(3) of the Regulations. Clause 186.233 of the Regulations was relevant to an application in the Direct Entry Stream. The applicant had applied for a visa in the Temporary Residence Stream. The applicable clause was cl 186.223.
The Tribunal’s erroneous references to cl 186.233(3) of the Regulations are, however, immaterial. Clause 186.233(3) is in the same terms as cl 186.223(2) of the Regulations. Again, this was likely a typographical error by the Tribunal. However, even if it was not, in circumstances where the two provisions are in the same terms, the error could not have realistically deprived the applicants of a successful outcome.
The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
Futility
A critical problem the applicants also face in these proceedings is that granting any relief would be futile. Here, the first applicant is not the subject of an approved nomination. Further, he can no longer become the subject of an approved nomination because:
(a)his sponsor did not seek review of the delegate’s decision refusing the nomination application. The time for the sponsor to seek review of that decision has passed and, as is now well established, the Tribunal has no power to extend time; and
(b)the first applicant’s sponsor cannot lodge a “new nomination” in relation to the applicant. The “nomination” which must be approved is the nomination that was identified in the applicant’s visa application. It cannot be substituted for a new nomination from either the same or a different employer.
It follows from the above that, even if there was jurisdictional error, on remittal the Tribunal would be bound to again find that the first applicant did not meet cl 186.223(2) of the Regulations. Remittal would be futile as no relief can be granted.
CONCLUSION
The application for judicial review filed 23 November 2020 and the first applicant’s affidavit sworn 19 November 2020 fail to identify any jurisdictional error. The Court is otherwise satisfied that no jurisdictional error arises and that any remittal would, in any event, be futile.
The application is, accordingly, dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 April 2021
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