Shri Shiva Mandir Ltd v Minister for Immigration
[2018] FCCA 383
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRI SHIVA MANDIR LTD v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 383 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal exercised its discretion under s.359C of the Act unreasonably – whether the Tribunal failed to make inquiries – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359C, 360, 363A, 476 |
| Cases cited: Sharma & Ors v Minister for Immigration & Anor [2018] FCCA 382 | ||
| Applicant: | SHRI SHIVA MANDIR LTD | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2504 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 June 2017 |
| Date of Last Submission: | 26 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison Lawyers |
ORDERS
The application made on 15 September 2016 and amended on 11 May 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8,212.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2504 of 2016
| SHRI SHIVA MANDIR LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 15 September 2016, Shri Shiva Mandir Ltd (“SSM”) filed an application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 15 August 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse SSM’s application for approval of the nomination of an employment position in Australia under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 17 November 2016 Mr Chentankumar Morarilal Sharma (the first applicant in proceedings SYG 3201 of 2016) and the second, third and fourth applicants (in proceedings SYG 3201 of 2016), filed an application to the Court pursuant to s.476 of the Act seeking review of the decision of the Tribunal dated 24 October 2016, which affirmed the decision of another delegate of the Minister to refuse the applicants’ Employer Nomination (Permanent) (Class EN) visas. The second, third and fourth applicants in that application to the Court are members of the first applicant’s family unit.
Both matters were first before the Court on 21 December 2016. By orders made by consent in each matter on that date, and amongst other things, it was ordered that the matters be heard together. The final hearing of the matters was then set down for 11 May 2017. SSM and the Minister were also provided with the opportunity to file written submissions. The Minister filed written submissions on 3 May 2017 (“the Minister’s first written submissions”).
Prior to the date of the final hearing, and on 9 May 2017, SSM filed an Application in a Case (“AIC”) seeking to amend its substantive application to the Court. The proposed amended application was attached to the affidavit of Jagdish Chander Chawla, made on 9 May 2017, and filed on the same day. SSM also filed written submissions on 9 May 2017 addressing the proposed amended application (“SSM’s written submissions”).
The AIC was subsequently also listed for hearing on 11 May 2017 and SSM was granted the relief that it sought. As a result, the final hearing of both matters was adjourned until 26 June 2017. The Minister was also given the opportunity to file further written submissions. The Minister filed further written submissions on 1 June 2017 (“the Minister’s second written submissions”).
At the hearing on 26 June 2017, SSM and the applicants in proceedings SYG 3201 of 2016, were represented by counsel. The Minister was represented by a solicitor. The applicants in each matter have the same legal representation (as does the Minister in each matter) and proceedings SYG 3201 of 2016 is dependent on the success, or otherwise, of the current application. For the judgment in proceedings SYG 3201 of 2016 see Sharma & Ors v Minister for Immigration & Anor [2018] FCCA 382.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Jagdish Chander Chawla, Director, made on 9 May 2017. The Minister objected to [6] – [7] and annexure “B” on the basis of relevance. The objection was sustained. At the hearing on 11 May 2017, SSM noted that [3] – [4] were in “error”, in that SSM’s counsel indicated that she had been engaged by Mr Chawla on 4 May 2017, which was inconsistent with the affidavit evidence of Mr Chawla. Mr Chawla subsequently gave oral evidence to the Court that, as a lay person, he did not appreciate the distinction between a solicitor and counsel, and second, that he was “going by” SSM’s solicitor’s instructions, in that SSM “would be” engaging a barrister.
Background
SSM made an application for an “Employer Nomination for a Permanent Appointment” (“the nomination”) which was received by the Minister’s department on 14 October 2014 (CB 1 to CB 8). A letter dated 9 March 2015, and sent by email to SSM (the email is undated), contained a “[r]equest for more information regarding application for Nomination under the Employer Nomination” (CB 12 to CB 18).
On 2 April 2015, a director of SSM emailed the Minister’s department advising that SSM was in the “process of compiling required documents” to send “by the end of this month” (CB 19). By letter dated 8 April 2015 sent to the Minister’s department (the date of receipt is unknown), a director of SSM responded to the request for more information. The response included documents relating Mr Chetankumar Morarilal Sharma from the Gujuarat Secondary Education Board, a bundle of handwritten “certificates”, and a bundle of various letters from SSM (CB 20 to CB 27).
A letter dated 6 May 2015 and sent by email (date unknown) from the Minister’s department to SSM attached various documents including the “[n]otification of refusal of nomination under the Employer Sponsored Nomination (EN 186N)” and the “Notice of Decision” (CB 28 to CB 44).
The delegate refused the application on the basis that the nomination did not meet reg.5.19(4)(b)(i) of the Regulations as SSM had not provided to the Minister’s department a profit and loss statement and a relevant balance sheet. Therefore the delegate was not satisfied that SSM was “actively operating [a business] in Australia” (CB 37.3).
SSM applied for review to the Tribunal on 23 May 2015 (CB 45 to CB 55). By letter dated 28 July 2016 and sent by email to SSM’s representative authorised to receive correspondence on its behalf on the same date, SSM was invited to provide further information to the Tribunal (CB 66 to CB 71). The letter also stated (CB 69.4):
“The information should be received by 11 August 2016. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If Shri Shiva Mandir Ltd cannot provide the information by 11 August 2016, it may ask us for an extension of time in which to provide the information…
…
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. Shri Shiva Mandir Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”
[Emphasis in original.]
A “Registry Checklist” completed by a Tribunal officer dated 12 August 2016 indicates that no response was received from SSM (CB 72). The Tribunal affirmed the delegate’s decision on 15 August 2016 (CB 79 to CB 84). By letter dated 16 August 2016 and sent by email to SSM’s representative authorised to receive correspondence on its behalf, SSM was sent, amongst other documents, the Tribunal’s decision record (CB 73 to CB 84).
In its decision record, the Tribunal noted that SSM had not provided further information in response to the Tribunal’s letter of 28 July 2016 ([5] - [6] at CB 80 and see [12] above). Pursuant to ss.359C and 360(3) of the Act, the Tribunal noted that SSM was therefore “not entitled” to appear before the Tribunal. The operation of s.363A of the Act meant that the Tribunal had “no power to permit” SSM to appear, and in the circumstances, the Tribunal proceeded to determine the review “without taking further steps to obtain the information” ([7] at CB 80).
The Tribunal considered that the application met the requirements of reg.5.19(4)(a) of the Regulations ([11] – [14] at CB 81). However, SSM did not meet reg.5.19(4)(b) of the Regulations, to establish that it was “actively, and lawfully and directly operating a business in Australia” ([20] at CB 81).
The Tribunal noted that SSM had not provided the delegate with the required financial documents, and that “[o]n review, no submissions or supporting documents were provided to the Tribunal to address the issue raised in the [delegate’s] decision record” ([18] at CB 81), including in response to the letter sent to SSM dated 28 July 2016 ([19] at CB 81).
Therefore, the Tribunal concluded that SSM did not meet the requirements of reg.5.19(4)(b) of the Regulations and affirmed the delegate’s decision on that basis.
On 29 August 2016, SSM’s representative, Mr Gnanakaran, sent an email to the Minister’s department with what was said to be “submissions which support vacation of the decision to refuse the nomination” (CB 85.3 and see submissions at CB 86 to CB 91). The email also attached a bundle of “certificates” relating to the third applicant (in proceedings SYG 3201 of 2016), and an “Employer’s Assessment” of the third applicant (in proceedings SYG 3201 of 2016), amongst various other documents (CB 92 to CB 101).
SSM’s representative appears to have sent another email to the Tribunal on 22 September 2016, requesting that the email correspondence previously sent on 28 August 2016 (CB 102 to CB 103) (the email indicates 28 August 2017, but in the circumstances this can reasonably be seen as a typographical error and should be 29 August 2016) be “reviewed”. The email also stated (CB 102.8):
“The visa application associated with this application is still under review at the Administrative Appeals Tribunal (‘the Tribunal’). On 19 September 2016, after noting that a request for vacation of the nomination application had been made, the Tribunal is awaiting a response from the immigration department to our request before making a decision on the visa application. The Member noted that she is prepared to wait for the immigration department’s response to this request until 19 October 2016.”
The Minister’s department responded to SSM’s representative on 4 October 2016, stating that departmental records indicated that he was not SSM’s “authorised recipient or appointed migration agent” and to complete and return a signed “F956” form (CB 102). I note that in this regard, Mr Gnanakaran was SSM’s “authorised” representative before the Tribunal, but does not appear to have been before the Minister’s department (see [34] below).
A similar email appears to have been sent to Mr Gnanakaran on 3 October 2016 (CB 105) from the Minister’s department. Mr Gnanakaran responded by attaching the completed form and emailing it to the Minister’s department on 4 October 2016. Mr Gnanakaran sent a follow-up email to the Minister’s department on 7 October 2016. The Minister’s department then responded to Mr Gnanakaran on 12 October 2016 indicating that the delegate had refused the nomination on 6 May 2016, the Tribunal had then affirmed the decision to refuse the nomination on 16 August 2016 (in context, this should be 15 August 2016) and that on 15 September 2016, the “nominat[or] took this matter to the Federal Court”. As such, the Minister’s department indicated that SSM had “exhausted” its review rights and the Minister’s department had “no further jurisdiction” to vacate the decision or “even act on this matter” (CB 104).
The Application to the Court
The amended application to the Court is in the following terms:
“Ground One
Jurisdictional Error – The Tribunal exercised its statutorily conferred discretion under s 359C(1)(b) unreasonably. The Tribunals decision was unreasonable, plainly unjust and lacks an evident and intelligible justification.
Particulars
1. In exercising its discretion under s 359C(1)(b), the Tribunal erred in that its decision to proceed to make a decision on the review without taking any further action to obtain the required information (in circumstances where (i) the required information was critical to the Applicant’s nomination application; and (ii) the Applicant was willing and able to provide the required information) was unreasonable, amounting to jurisdictional error.
2. [At paragraph 5, CB 80],
‘On 28 July 2016, the Tribunal wrote to the review applicant pursuant to s359 of the Act, inviting the review applicant to provide information to demonstrate that it meets the requirements in r 5.19(4) for approval of the nomination of a position in writing’.
3. The deadline for submission of the required documents was 11 August 2016.
4. [At Paragraph 7, CB 80],
‘The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances s 359C applies pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information’. [CB 80].
Ground Two
Jurisdictional Error: The Tribunal failed to make certain inquiries in circumstances where the information required was readily available and centrally relevant to the decision made: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, Wilcox J at 169; Consequently, the Tribunal failed to discharge its duty to review giving rise to jurisdictional error by constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123;[2009] HCA 39 at 25]
Particulars
1.[At paragraph 7, CB 80],
‘The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information’. [CB 80].”
[Errors in original.]
Consideration
In written submissions, SSM’s counsel has helpfully set out a chronology which provides a basis to understanding SSM’s grounds as follows ([4] of SSM’s written submissions filed on 9 May 2017):
Date
Event
14 October 2014
The Applicant lodged an Employer Sponsored Nomination (EN 186N) under the Direct Entry stream
09 March 2015
The First Respondent requested certain information and documents from the Applicant including the following:
Profit and Loss Statement (Statement of Performance)
Balance Sheet (Statement of Position)
Copies of Business Activity Statements provided to the Australian Taxation Office02 April 2015
The Applicant sent an email to the Tribunal advising that the requested information would be sent by the end of the month [CB 19]
08 April 2015
The Applicant sent a letter to the First Respondent indicating:
‘…profits and loss statements for the last two financial years are attached’ [CB 20]
‘Attachments: As Above’ [CB 21]
‘We will be pleased to provide clarification/further information in this matter’ [CB 21]
06 May 2015
The First Respondent [sent] a letter to the Applicant advising that the nomination application had been refused because the nomination did not satisfy the requirements under either Regulation 5.19(3) or Regulation 5.19(4) of the Regulations
25 May 2015
The Applicant applied to the Tribunal for review of the First Respondent[’]s decision [CB 57]
28 July 2016
The Tribunal sent a letter to the Applicant pursuant to s 359 of the Act asking the Applicant to provide information by 11 August 2016 [CB 67]
15 August 2016
The Tribunal issued the Decision Record. The Decision Record affirms the decision under review to refuse the nomination.
16 August 2016
The Tribunal sent an email to the Applicant’s Migration Agent stating ‘Please read the attached correspondence carefully, noting that we may require a response from you before a certain date’.
29 August 2016
The Applicant’s Registered Migration Agent sent submissions to the Tribunal requesting vacation of the Tribunal’s decision.
17 November 2016
The Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Ground one of the amended application asserts that the Tribunal’s exercise of its discretion pursuant to s.359C(1) of the Act was exercised unreasonably in that it was “unjust”, and lacked an “evident and intelligent” [in context, intelligible] justification.
Section 359C(1) of the Act at the relevant time was in the following terms:
“Section 359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.”
I understood SSM’s complaint to arise from the following. SSM applied for approval of the nomination (the first applicant in proceedings SYG 3201 of 2016 was to be the subject of a sponsorship pursuant to that nomination).
On 9 March 2015, the delegate wrote to SSM requesting “more information” concerning the application for the nomination. In particular the request included (CB 14):
“2. Need for employee in the Nominated occupation
…
(ii) Please provide written submissions detailing:
- why there is a need to recruit an overseas person for the position and the efforts made to obtain suitable persons from within Australia; and
- the precise duties of the position; and
- the qualifications required for the position; and
- the financial arrangements made for supporting the nominee; and- that the employment is full-time for at least 2 years.”
The letter also provided information as to the various options for the provision of this documentation and information to the Minister’s department (see CB 15.1). SSM was told that “[y]ou must respond to this request within 28 days after you are taken to have received this letter” (CB 13.9).
On 2 April 2015, the Minister’s department received the following by email (CB 19):
“…
Nomination
Business Name SHRI SHIVA MANDIR LTD
Nomination Application ID: EG06VOK8DW
File Number: BCC2014/2700554
We refer to your email communication regarding above nomination for permanent residence. We are in the process of compiling required documents to send to you by the end of this month. We regret the inconvenience caused.
Regards.
Jagdish Chawla
Shri Shiva Mandir, Minto.”
Mr Chawla, acting on behalf of SSM, then wrote to the delegate on 8 April 2015. The letter stated: “[r]equired documents are provided as follows” (CB 20.5). The letter then set out references to the various matters raised in the letter of 9 March 2015 (see [27] above). The letter then stated: “[a]ttachments: [a]s above. We will be pleased to provide clarification/further information in this matter” (CB 21.8).
The delegate made his decision on 6 May 2015. The nomination was refused because the delegate found that the nomination did not satisfy the requirements in reg.5.19(3) and reg.5.19(4) of the Regulations (CB 29.7).
At the relevant time, reg.5.19(3) and (4) were in the following terms:
“Regulation 5.19 Approval of nominated positions (employer nomination)
…
(3) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A) is listed in ANZSCO; and
(B) has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
(b) the nominator:
(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c) either:
(i) both of the following apply:
(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B) the employment in the position has been full‑time, and undertaken in Australia; or
(ii) all of the following apply:
(A) the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);
(B) the nominator nominated the occupation;
(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i) the person will be employed on a full‑time basis in the position for at least 2 years; and
(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i) the nominator:
(A) fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note: Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b) the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses – the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d) both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;and
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment;
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; and
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations;
and
(h) either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-paragraph;
(B)either:
(I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E)the business operated by the nominator is located at that place:
(F)a body that is:
(I)
specified by the Minister in an instrument in writing for this
sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matter mentioned in paragraph (e) and
sub-subparagraphs (B) and (C).”
In the decision record, the delegate stated (CB 37.2):
“I note the information uploaded by the nominator also indicates the profit and loss statements for the last 2 financial years are attached. However, there is no profit and loss statement attached to the uploaded information. Furthermore, the nominator has stated that they are exempt from the income tax and therefore not required to lodge BAS with the ATO.
To date, the nominator still has not provided the profit and loss statement and balance sheet as requested on 09/03/2015.
In the absence of the outstanding information, I am not satisfied the nominator is actively operating in Australia. Hence, the nomination does not meet Regulation 5.19(4)(b)(i).
As Regulation 5.19(4)(b)(i) is not met, the nomination does not meet 5.19(4).”
SSM applied to the Tribunal for review of the delegate’s decision which was received on 25 May 2015 (CB 45 to CB 55). Mr Gnanakaran of “Gnana-karan Solicitors” was nominated as SSM’s representative (CB 51).
The Tribunal acknowledged the application by letter dated 27 May 2015. Amongst other things, the letter stated (CB 58.7):
“If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.”
By letter dated 28 July 2016, the Tribunal wrote to SSM through its representative (CB 66 to CB 71). The letter provided “type of information” that may assist SSM in demonstrating it “meets the requirements”. This included (CB 68.6):
“- Information relating to all nomination applications made by the nominator in the last two years, including, details of when the nomination was made, the position nominated and the outcome of the nomination.
- Most recent completed financial reports (including profit and loss and balance sheet) of the business.- Business Activity Statement lodged with the ATO for the last 12 months.”
Further, the letter also included (CB 69.4):
“The information should be received by 11 August 2016. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.”
[Emphasis in original.]
The letter also included (CB 69.6):
“If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. Shri Shiva Mandir Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”
[Emphasis in original.]
On the evidence before the Court, SSM did not reply to the letter of 28 July 2016 (see the “Registry Checklist” dated 12 August 2016 at CB 72).
The Tribunal made its decision on the review on 15 August 2016. The following paragraphs are relevant ([3] – [7] at CB 80):
“[3] In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
[4] The delegate refused the application on the basis the applicant’s nomination did not satisfy the r.5.19(4)(b)(i) of the Regulations because the delegate was not satisfied that the nominator is actively operating in Australia.
[5] On 28 July 2016 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information to demonstrate that it meets the requirements in r.5.19(4) for approval of the nomination of a position in writing.
[6] The invitation was sent to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 11 August 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
[7] The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.”
Further, the Tribunal stated ([15] – [21] at CB 81):
“Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
[15] Regulation 5.19(4)(b) requires that [the] applicant is actively, lawfully and directly operating a business in Australia.
[16] According to the decision record, a copy of which has been provided to the Tribunal, on 9 March 2015 the department requested the nominator to provide further information in support of the application for approval, including financial documents and activity statements.
[17] On 21 April 2015 the nominator provided some documents to the Department, however the decision record indicates that no financial documents had been provided. The delegate acknowledged the submissions that the nominator is exempt from income tax, and was not required to lodge activity statements, but noted that the nominator was still required to provide financial documents to demonstrate that it is operating a business in Australia.
[18] On review, no submissions or supporting documents were provided to the Tribunal to address the issue raised in the decision record.
[19] As noted above, the applicant was invited to provide current information to demonstrate that it meets all of the requirements for approval of the nominated position, including the requirement in r.5.19(4)(b), however the Tribunal has not receive[d] the requested information within the period prescribed.
[20] As there is no current evidence before the Tribunal to indicate that the nominator is currently actively and lawfully operating a business in Australia, the Tribunal is not satisfied that the applicant meets the requirements in r.5.19(4)(b).
[21] Accordingly, the requirement in r.5.19(4)(b) is not met.”
SSM’s argument is as follows. The Tribunal was aware that SSM, in its letter of 8 April 2015 (sent to the delegate and see above at [30]), had stated that it had “attached” certain documents, when in fact these documents had not been “attached”, and therefore had not been “uploaded” to the Minister’s department’s website (and see above at [33]). The Tribunal therefore was on notice as to how “critical” those documents were to SSM’s application.
SSM’s submission before the Court was that in the circumstances the Tribunal would have known that an “error” had occurred at the “delegate stage”. The error was described as a “technological error”, which resulted in the documents which were said in the letter to have been “uploaded” to the Minister’s department’s website, were in fact not so “uploaded”.
I pause here to note that SSM, through the affidavit of Mr Chawla made on 26 June 2017, has sought to put evidence before this Court to support the proposition that the “error” occurred because of a “technological error”. However, there is nothing in that affidavit or elsewhere, to support that proposition.
In any event, in relation to ground one, SSM’s argument was that given that the Tribunal “knew” that SSM had intended to provide the “critical” documents and had failed to do so by “error” (“technological” or otherwise), it was unreasonable of the Tribunal to proceed to a decision in the circumstances. Further, in relation to ground two, the Tribunal should have made an inquiry of SSM regarding those documents, before making its decision.
The assertion of legal errors were as follows. One, s.359C of the Act confers a discretionary power on the Tribunal. The Tribunal exercised this discretion unreasonably, because it did not provide reasons, or an intelligible justification, as to why it chose to exercise the discretion in the way that it did. That is, to proceed to make its decision without taking steps to inquire as to the relevant documents.
Two, with reference to [7] (at CB 80) of its decision record, the Tribunal “equated” SSM’s loss of the right to appear at a hearing, to the “loss of [the] Tribunal’s discretion to take further steps to obtain the required documents.”
Three, SSM drew attention to s.363A of the Act, to argue that there is a distinction between the loss of the right to appear at a hearing and a “loss” of the right to provide further information (Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241 at [53] – [55]).
Four, the Tribunal failed to identify the basis on which it proceeded to make its decision, notwithstanding that SSM, through its letter of 8 April 2015, had indicated a “willingness” to provide more information if the Tribunal were to request it.
While SSM’s submissions before the Court were presented with considerable detail, I understood three issues to arise which required resolution by the Court.
One, whether the Tribunal at [7] (at CB 80) of its decision record “conflated” or incorrectly “equated” two separate “tests”, as those tests are found at s.359C and s.360 of the Act. Two, whether the Tribunal’s decision to proceed to a decision was legally unreasonable in the circumstances. Three, whether the Tribunal’s obligation to make inquiries of SSM, or “someone other than the applicant”, was enlivened.
In relation to the first issue, and given SSM’s submissions, it is helpful to be clear as to the operation of s.359C, s.360 and s.363A of the Act.
Section 359C(1) of the Act provides that if a person is invited, pursuant to s.359 of the Act, to give certain “information” to the Tribunal, and does not do so within the time provided, the Tribunal may proceed to make a decision “without taking any further action to obtain the information”. In the alternative, it is also open to the Tribunal not to immediately proceed to a decision.
Section 360 of the Act is not concerned with the giving of “information”. Section 360(1) of the Act compels the Tribunal to invite an applicant to a hearing, to give evidence and present arguments in relation to the issues in the review.
Section 360(2) of the Act also sets out that the obligation in s.360(1) of the Act does not apply if, relevantly, s.359C(1) or (2) of the Act applies to the applicant (s.360(2)(c) of the Act).
Therefore, for current purposes, it is important to note that while the two sections address, or focus, on two different concepts, they are “linked” to the extent that the fulfilment of any of the circumstances in s.359C of the Act, results in the negation of the obligation in s.360(1) of the Act.
Section 363A of the Act is in the following terms:
“Section 363A
Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”
SSM’s argument then directs attention to [7] (at CB 80) of the Tribunal’s decision record (see [40] above). The argument is that the Tribunal erred because of what is revealed at [7] (at CB 80) of its decision record, in that the error is said to be seen in the following reasoning by the Tribunal.
SSM did not provide the “information” within the prescribed period, and no extension of time was granted. The statutory “implication” of this (s.359C, s.360(3) and s.363A of the Act), was that the applicant “lost” its right to appear at a hearing before the Tribunal. Specifically, that s.363A of the Act, meant that the Tribunal had no power to permit SSM to appear at a hearing (with reference to Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (“Hasran”)).
SSM submits that when the Tribunal stated in the last sentence of [7] (at CB 80) of its decision record that SSM had lost its statutory right to appear at a hearing, the only reason the Tribunal then referred to s.363A of the Act and Hasran was to “demonstrate” that it was of the view that its “hands were tied”. That is, the Tribunal did not properly consider its discretion in considering whether to proceed to a decision, or to give SSM the opportunity to provide the “critical information”.
I do not accept that to be a fair reading of [7] (at CB 80) of the Tribunal’s decision record, or indeed, the context in which it appears.
What underpins SSM’s argument in relation to [7] (at CB 80) of the Tribunal’s decision record, is the proposition that in one paragraph of its decision, the Tribunal has conflated, or confused, the different objectives in s.359C of the Act and s.360(3) of the Act. The claim is that by doing so, the Tribunal arrived at a conclusion that it was bound to proceed to a decision when in fact it should have properly considered the alternative. That is, not to proceed, but to give SSM the opportunity to produce the information to the Tribunal.
It is the case that that the Tribunal could have set out its reasoning in two separate paragraphs, to reinforce the different objectives of s.359C and s.360 of the Act. However, Tribunal decisions are meant to be read fairly. What SSM now argues as a “conflating” of the two sections of the Act is, on a fair reading of the Tribunal’s decision, a reflection of the link between the two sections, not a conflation of them. More particularly, what is stated are the consequences arising from the link between the two sections, when applied to the circumstances presented.
On a fair reading, what the Tribunal was saying at [7] (at CB 80) of its decision record, when read in context with [5] - [6] (at CB 80) of its decision record, was that notwithstanding s.360(1) of the Act, in the circumstances presented, s.359C(1) of the Act operated to enliven s.360(2) of the Act. Thus, SSM did not have any entitlement to a hearing.
Therefore, the last sentence of [7] (at CB 80) of the Tribunal’s decision record is, when fairly read, the conclusion to the following line of reasoning set out essentially from [4] - [7] (at CB 80) of its decision record.
That is, the Tribunal wrote to SSM pursuant to s.359 of the Act on 28 July 2016, inviting it to provide certain information to the Tribunal within the prescribed period. SSM did not do so. SSM was put on notice by the Tribunal’s letter that a failure to respond (either by providing the information or seeking an extension), would mean it would lose the entitlement to appear at a hearing. SSM did not provide the information within the prescribed time. Nor did SSM seek any extension of the time provided to it for that purpose.
When fairly read, the last sentence of [7] (at CB 80) of the Tribunal’s decision record, is the conclusion to the operation of s.359, s.359C and s.360(3) of the Act in the circumstances presented. SSM did not provide the information to the Tribunal that it was invited to provide. It also did not seek an extension of time to provide the information. In the circumstances, SSM lost the right to appear at a hearing. In the circumstances, the Tribunal decided to proceed to a decision. The words “has decided to proceed” as they appear at [7] (at CB 80) of the Tribunal’s decision record, make clear that in the circumstances, the Tribunal understood that it was exercising a discretion. The language used does not support the proposition that the Tribunal felt compelled to proceed to a decision as SSM submits. Rather, that in the circumstances before it, the Tribunal decided to do so in the exercise of its discretion.
It must be said that SSM’s attempt to rely on s.363A of the Act sought to conflate two distinct and separate matters.
As set out above, the Tribunal did exercise its discretion to proceed to a decision. In the circumstances, there was no legal error in the Tribunal noting the terms of s.363A of the Act. This was because SSM had lost the right to appear at a hearing for the reasons explained by the Tribunal, and which did not rely on s.363A of the Act. The Tribunal merely noted with the reference to s.363A of the Act, that it did not have the power, in the circumstances, to permit SSM to appear at a hearing given that SSM was “prohibited” from doing so.
The second issue which sits at the heart of ground one is whether the Tribunal’s decision to proceed to making its decision in the review without giving SSM a further opportunity to provide the information, of itself, reveals jurisdictional error.
The submissions before the Court focused on whether the Tribunal gave reasons for its decision to proceed to a decision in the review, or simply expressed a finding to do so. In my view, in the circumstances presented, there was an “intelligible justification” arising from the facts presented to the Tribunal to explain why the Tribunal proceeded in the way that it did (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”), Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) at [44] and Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (“SZVFW”) at [38]).
It is clear, on the evidence, that the delegate refused SSM’s application because it had not provided documents to show that it was “actively and lawfully operating a business in Australia”, as required by the criteria for the grant of approval of the nomination (reg.5.19(4)(b)(i) of the Regulations, SSM also did not meet reg.5.19(3) of the Regulations according to the delegate). This was plain given the delegate’s decision record.
I am satisfied on the evidence before the Court (and as set out above), that SSM understood that this was the reason for the delegate’s decision. In the context of reasonableness (that is, of the Tribunal’s exercise of discretion), SSM would have been on notice, as at the time of the making of the application for review to the Tribunal, that this was a “live” issue, and central to its prospects of success on the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). As the Minister submitted, SSM had in its possession the delegate’s decision, as this accompanied the application for review.
As is set out above, the Tribunal specifically invited SSM to provide the relevant information by the letter of 28 July 2016. This was in circumstances where SSM was already on notice of the need to provide such information if it was to succeed in its application. The Tribunal’s letter made clear the existence of the prescribed time limit, the capacity to apply for an extension, and the consequences of not providing the information, or not seeking an extension to do so.
SSM now argues that the Tribunal’s decision, to proceed to a “final” decision, without giving SSM a further opportunity, was unreasonable because the Tribunal would have known that SSM intended to provide these documents to the delegate, but did not do so because of some (now unexplained) “technical” (or “technological”) difficulties in “uploading” the documents.
Even if SSM did have some technical difficulties, this, on the evidence before the Court, does not satisfactorily explain why, once having received the Tribunal’s letter of 28 July 2016 inviting the provision of these documents, SSM not only did not provide the documents to the Tribunal, but did not respond to the Tribunal’s letter at all.
In these circumstances, it was reasonably open to the Tribunal to take the view that, for whatever reason, SSM did not intend to provide any such documents to the Tribunal. This was because SSM had been on notice for some time as to the need to provide these documents, and it had been put squarely on notice of this (again) by the Tribunal’s letter of 28 July 2016. Further, the time available to SSM to provide the documents was reasonably sufficient.
Even on the basis that SSM had intended to provide the documents to the delegate and was prevented from doing so for whatever reason, there was no explanation before the Tribunal of any difficulty in providing the documents, nor any attempt to seek an extension to produce them to address any ongoing difficulty. In any event, SSM had a period of approximately 16 months from the time of the claimed “uploading” difficulty, to the date of the Tribunal’s letter, to have addressed this matter.
One of SSM’s arguments before the Court was that it had been the subject of a number of nomination approvals in the past. That is, SSM had satisfied other delegates that, amongst other things, it was “actively and lawfully operating a business in Australia” as required by the Regulations.
The argument was that this “track record” as a sponsor and nominator, obliged the Tribunal to assume that SSM would be able to provide the required documents ([26] of SSM’s written submissions filed on 9 May 2017). It was therefore not reasonable of the Tribunal to proceed to a decision in the circumstances.
I agree with the Minister that what may have occurred in the past in relation to other applications by SSM does not establish a basis to say that the Tribunal acted unreasonably in the particular circumstances of this application. This again reveals SSM’s inability to accept that the Tribunal’s letter of 28 July 2016 was the necessary “prompt”. In any event, any “track record” of nomination approvals before the Minister’s department involving a different statutory scheme, does not create a “track record” before the Tribunal.
Before the Court, the applicant relied on number of authorities in support of ground one.
First, SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; (2008) 168 FCR 256 (“SZKTI”), for the proposition that the Tribunal may provide a further opportunity to an applicant to provide information without appearing before it (for example by telephone) ([18] of SSM’s written submissions filed on 9 May 2017).
I note, and as the Minister submits, the decision of the Full Court in that case was “overturned” by the High Court (Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489 (“SZKTI HC”)). Nonetheless, SZKTI does provide that the Tribunal can obtain information by telephone (see SZKTIHC at [52]). However, unlike the current case, the applicant in SZKTI had attended a hearing, and had actively participated in the review. It is to be remembered that in the current case, SSM made no response the Tribunal’s letter of 28 July 2016, nor does it appear to have otherwise actively participated in the review after lodging the application.
Importantly, contrary to what appears, at least inferentially, to be SSM’s position now, SZKTI does not provide the authority for the proposition that the Tribunal was obliged to have contacted SSM by telephone to obtain the further information. As is made clear by a number of authorities, the question of reasonableness in any case is dependent on the facts of that case (Li, Singh and SZVFW).
Second, given the reference in SSM’s letter of 8 April 2015 to the delegate to the relevant documents being “attached”, but which were not so “attached” or “uploaded” to the Minister’s department’s website (see [30] above), SSM relied on Giri v Minister for Immigration and Citizenship [2011] FCA 928 (“Giri”) to argue that given the importance of the loss of the right to a hearing, there was a “reasonable expectation” that the Tribunal would have “knock[ed] on the door” of SSM, and would have prompted or reminded it of the need to provide these documents to the Tribunal.
What SSM’s argument appears to overlook is that the Tribunal’s letter of 28 July 2016 was the “knock on the door”. The fact that there was no one at home (that is, SSM did not respond to the letter), does not make the Tribunal’s exercise of its discretion to proceed to a decision unreasonable.
Nor are the facts in Giri analogous or applicable to the current circumstances. The Tribunal in Giri sent a letter pursuant to s.359 of the Act, but it also sent a letter pursuant to s.360 of the Act before the expiration of the prescribed period in s.359 of the Act. When that period expired the Tribunal told the applicant that he had lost the right to a hearing. Those circumstances do not exist in the current case.
In all ground one is not made out.
Ground two asserts that the Tribunal failed to make “certain inquiries” where the information that was required was “readily available and centrally relevant to the decision made” (citing Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 46; (1985) 6 FCR 155 (“Prasad”)).
It is not clear why SSM sought to rely on Prasad when more recent High Court authorities (one of which SSM otherwise acknowledged in submissions), provides direction to the Tribunal, and to the Court, in relation to the Tribunal’s duty to inquire.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, the High Court relevantly found that there is no general duty to inquire. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2013) 83 ALJR 1123 (“SZIAI”) the High Court held that there may be some rare circumstances where that duty is enlivened as follows (SZIAI at [25]) (see also Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [77]):
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…”
In essence, SSM’s argument before the Court was that once the Tribunal “discovered”, or became “reasonably aware”, that the required documents were readily available, and that SSM could have satisfied the regulatory requirements, the Tribunal should have made an inquiry of SSM about producing the documents.
SSM’s argument that the Tribunal should have been “reasonably aware” derived from what had been indicated in SSM’s letter of 8 April 2015, in relation to the delegate’s invitation to provide further information (CB 21.7). The delegate recorded that SSM indicated (albeit in error) that the relevant documents were “attached” (CB 37.2).
Further, any inquiries the Tribunal may have made of SSM, or another person (e.g. the Minister’s department), as to SSM’s “track record”, would also not have been determinative of the issue in the current case. It would not have been an inquiry about a “critical fact”, the critical fact was whether SSM was able to meet the requirements of the current nomination application, and in particular, whether it was “actively and lawfully operating a business in Australia” for the purposes of this nomination.
The Tribunal did make the critical inquiry of SSM by way of its letter of 28 July 2016. Although not phrased in terms of a question, the effect of the letter was to inquire of SSM whether it had, and was able to provide, the critical documentation.
SSM did not reply. Its failure to do so does not create an obligation on the Tribunal to make a further inquiry. This is particularly so in circumstances where SSM would have known, as a result of the delegate’s decision, of the importance of providing the relevant documents.
Ground two is not made out.
As set out above at [44], at the beginning of the hearing, SSM sought to read the affidavit of Jagdish Chander Chawla made on 26 June 2017. Mr Chawla is a director of SSM.
SSM’s counsel also submitted that the purpose of pressing the reading of that affidavit was to support the proposition that the “required information” was readily available, and would have been available, if the Tribunal had made further inquiries of SSM.
The Minister objected to the reading of the affidavit on the basis of relevance. In short, there was no dispute between the parties that the relevant documents referred to in that affidavit, were not provided to the delegate, or to the Tribunal. The Minister submitted that the reason as to why that occurred was not relevant to a fact in issue in the current proceedings.
In order to allow SSM to fully present its argument, I “provisionally” admitted the evidence (subject to relevance) for the purposes of facilitating the hearing before the Court, and advised the parties that I would decide on the admissibility of the affidavit evidence after hearing argument.
The purpose of providing this affidavit was also described by SSM’s counsel as, essentially, being to show that the information which was the subject of the letter from the delegate (of 9 March 2015), and the Tribunal (of 28 July 2016), was available. However, SSM’s argument continued, it was not provided because of a “mistake” by the migration agent who assisted SSM. Further, the failure to provide the documents was also because of an “inadvertent mistake” by Mr Chawla of not attaching the financial documents when he was informed that he had not done so (in context, while the matter was before the delegate).
Even on the basis of accepting Mr Chawla’s “evidence” (and there is no reason not to do so), I cannot see that the affidavit is relevant to a fact in issue before the Court.
The difficulty for SSM is that there is nothing in the evidence to show, nor did SSM even suggest before the Court, that any attempt was made at the relevant time (that is, before the Tribunal’s decision), to make the Tribunal aware of the matter now raised before the Court.
Questions of reasonableness, and the duty to inquire, can only be resolved on the material before the Tribunal, and known to the Tribunal, or what ought to have been reasonably known to the Tribunal.
This is not a case where any allegation of fraud on the part of the migration agent is being argued, which could lead to questions of whether the Tribunal’s decision was vitiated because of third party misconduct, even though that conduct was not known to the Tribunal (SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189).
Before the Court, SSM’s counsel urged the Court to have regard to Singh at [45] as follows:
“In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.”
The submission was that the “outcome” that the Court should now focus on, was that SSM, “under normal circumstances”, should have been approved for the nominated application.
I do not respectfully understand what the Full Court said in Singh to mean that this Court can have regard to “evidence” that was not before the Tribunal, or even known to the Tribunal, and substitute its own findings of fact for those of the Tribunal. It is not for the Court to determine either that the nomination should have been approved, or that the Tribunal erred in not approving it because it “could” have been approved if that evidence had been before it.
Ultimately, SMS knew, from at least the date of notification of the delegate’s decision sent by email to the relevant address for service (CB 3.3) (6 May 2015), that the required documents had not been provided.
Therefore, that state of affairs would also have been known to SSM, and its representative (Mr Gnanakaran), on 25 May 2015, when the application for review was made to the Tribunal. No attempt was made to provide the documents to the Tribunal at that time. The Tribunal “reminded” SSM of this requirement by its letter of 28 July 2016. The Tribunal did not make its decision until 15 August 2016.
I agree with the Minister that Mr Chawla’s affidavit of 26 June 2017 which seeks to explain SSM’s failure to provide the documents, in that SSM’s representative made “mistakes”, is not relevant to the determination by this Court, of whether the Tribunal acted unreasonably, or failed to make a critical inquiry. Therefore, the affidavit of Mr Chawla made on 26 June 2017 is not admitted into evidence.
Conclusion
In all, the grounds of the amended application are not made out. The amended application to the Court should be dismissed. I will make that order.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 26 February 2018
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