Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 558
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 558
File number: MLG 1077 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 29 June 2023 Catchwords: MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – review of Administrative Appeals Tribunal – five grounds of review – grounds of review not particularised – no error of law – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 116, 140, 353(b), 357A(3) and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) sch 2, pt 457, r 457.611 and sch 8, condition 8107
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submissions: 6 October 2021 Date of hearing: 6 October 2021 Place: Melbourne (by videoconference) The Applicants: Appeared in person Solicitor for the First Respondent: Clayton Utz The Second Respondent Submitting an appearance, save as to costs ORDERS
MLG 1077 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASVEER SINGH SIDHU
First Applicant
GURDEEP KAUR SIDHU
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
30 june 2023
THE COURT ORDERS THAT:
1.The Originating Application filed 24 May 2017 is dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the sum of $7,467.
3.The name of the First Respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed on 24 May 2017 (Application), the Applicants seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal), dated 20 April 2017 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to cancel the First Applicant’s Subclass 457 (Temporary Work (Skilled)) visa (Visa).
The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicants have five (5) grounds of review in the Application, which the Court will consider in detail below.
This matter was heard on 6 October 2021 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit and Family Court of Australia at the time due to the ongoing COVID-19 pandemic (Final Hearing). The Applicants appeared by way of audioconference only, with the assistance of an interpreter in the Punjabi and English languages, and the Solicitor appearing on behalf of the Minister appeared by way of videoconference. The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
BACKGROUND
The Court has before it a Court Book numbering 178 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, filed on 22 September 2021 (Minister’s Submissions), at [4] to [12], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
On 14 May 2014, the First Applicant, a citizen of the Republic of India, was granted the Visa to enable him to be employed as a Customer Services Manager.[1] The Visa was sponsored by Cedar Foods Australia Pty Ltd (Sponsor).[2]
[1] Court Book (CB) 3.
[2] CB 3.
On 22 September 2016, the Department of Immigration and Border Protection (Department) sent the First Applicant a Notice of Intention to Consider Cancellation (NOICC) of the Visa under s 116 of the Migration Act.[3]
[3] CB 11-18.
On 29 September 2016, Asia Pacific Education Consultants Pty Ltd came on record as representatives for the First Applicant, and emailed to the Department various documents, including:
(a)A copy of the NOICC;[4]
(b)A letter from the Department acknowledging receipt of a nomination application made by Cedar Meats (Aust) Pty Ltd (Prospective Sponsor) in respect of the First Applicant, dated 20 September 2016;[5]
(c)A Form 956 ‘Advice by a migration agent/exempt person of providing immigration assistance’, dated 29 September 2016;[6]
(d)Evidence of the First Applicant’s health insurance policies;[7] and
(e)A statement of the First Applicant addressed to the Department in response to the NOICC, dated 29 September 2016.[8]
[4] CB 25-29.
[5] CB 31-32.
[6] CB 33-35.
[7] CB 36-37.
[8] CB 38-40.
On 18 October 2016, the Delegate cancelled the Visa under s 116(1)(b) of the Migration Act (Delegate’s Decision). The Delegate’s Decision was made on the basis that:
(a)The First Applicant had ceased employment for more than 90 consecutive days, thereby breaching paragraph 8107(3)(b) of condition 8107 in Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations); and
(b)The grounds for cancelling the Visa outweighed the reasons not to cancel the Visa.[9]
[9] CB 42-54.
As a member of the First Applicant’s family unit, the Second Applicant’s visa was automatically cancelled upon the cancellation of the First Applicant’s Visa pursuant to s 140 of the Migration Act.[10]
[10] CB 44, 53.
On 25 October 2016, the Applicants applied to the Tribunal for review of the Delegate’s Decision.[11]
[11] CB 60-62.
On 24 February 2017, the Tribunal invited the Applicants to appear before it at a hearing on 19 April 2017.[12]
[12] CB 89-92.
On 18 April 2017, a Migration Agent from Asia Pacific Group (Representative) sent an email to the Tribunal forwarding an ‘Appointment of Representative’ form and a ‘Response to hearing invitation’ form.[13] On the same day, the Representative emailed to the Tribunal a letter written by the First Applicant which stated, among other things, that he was expecting the outcome of a new nomination application with the Prospective Sponsor ‘very soon’.[14]
[13] CB 102-109.
[14] CB 121-123.
On 19 April 2017, the Applicants and the Representative appeared before the Tribunal at a hearing (Tribunal Hearing) and provided various medical records in relation to the Second Applicant.[15]
[15] CB 124-132.
On 20 April 2017, the Tribunal affirmed the Delegate’s Decision.[16]
[16] CB 139.
On 21 April 2017, the Tribunal published a written record of its decision and reasons by way of the Tribunal’s Decision.[17]
[17] CB 135-147.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at 139 to 147 of the Court Book. The Minister’s Submissions, at [12], accurately summarise the Tribunal’s Decision. The Court adopts those submissions as its own, with some amendments, as follows.
The Tribunal confirmed that the only decision under review was that of the First Applicant’s visa cancellation. As the Tribunal explains at the commencement of its decision, it did not have jurisdiction to review the Second Applicant’s visa cancellation as it was automatically cancelled as a consequence of the cancellation of the Applicant’s Visa.[18]
[18] CB 140, [3].
The Tribunal summarised the relevant provisions of the Migration Act and the Regulations, noting that as the ground for cancellation under s 116(1)(b) of the Migration Act is made out, the Tribunal must consider whether the discretion to cancel the Visa should be exercised, having regard to all of the relevant circumstances.[19]
[19] CB 141, [9]-[10], [33].
The Tribunal noted that the new nomination application with the Prospective Sponsor was lodged on 29 September 2016, but that as at the date of the Tribunal Hearing, a decision in relation to new nomination application had not been made.[20] The Tribunal stated that the First Applicant’s pending nomination with the Department was ‘one of the relevant matters’ to be considered in relation to whether to cancel the First Applicant’s visa.[21]
[20] CB 142, [17].
[21] CB 143, [25].
In addition to the factor mentioned at [20] above, the Tribunal considered whether the discretion to cancel the Visa should be exercised, having regard to the following circumstances of the First Applicant:
(a)The purpose of the First Applicant’s travel to, and stay in, Australia;[22]
(b)The reason for, and extent of, the breach of the Visa condition;[23]
(c)The circumstances in which the ground of cancellation arose;[24]
(d)The past and present conduct of the First Applicant towards the Department;[25]
(e)The degree of hardship that may be caused and whether there would be consequential cancellations under s 140 of the Migration Act;[26]
(f)Whether there would be mandatory legal consequences;[27]
(g)Whether Australia had obligations under relevant international agreements that would or may be breached as a result of the Visa cancellation;[28] and
(h)The impact of any victims of family violence.[29]
[22] CB 144-145, [37]-[44].
[23] CB 145, [45]-[48].
[24] CB 146, [49].
[25] CB 146, [50].
[26] CB 146, [51]-[56]; 147 [58].
[27] CB 147, [57]-[58]
[28] CB 147, [59]-[60].
[29] CB 147, [61].
After consideration of the above, the Tribunal was satisfied that the reasons for cancelling the Visa outweighed the reasons for not cancelling it.[30] The Delegate’s Decision to cancel the First Applicant’s Visa was therefore affirmed.[31]
[30] CB 147, [62].
[31] CB 147, [62]-[63].
PROCEEDINGS BEFORE THE COURT
On 24 May 2017, the Applicants filed the Application seeking judicial review, with an accompanying Affidavit of the First Applicant. At the time the Application was filed, the Applicants were legally represented. However, the Applicants’ legal representation withdrew on 13 August 2019[32] and the Applicants were self-represented for the remainder of the proceedings.
[32] Notice of Withdrawal as Lawyer, filed 13 August 2019.
The Applicants were provided an opportunity to file an amended application by Orders of a Registrar of this Court, dated 19 December 2017. The Applicants did not do so and as such these Reasons for Judgment refer to the grounds set out in the Application. The Application contained the following grounds of review:
1.The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
2.The tribunal misunderstood and/or misapplied the applicable law, or has otherwise failed to rely exclusively on relevant facts and information, with regards to the reason and extent for the Subclass 457 visa condition breach. The tribunal took into account irrelevant materials and considered irrelevant facts, information and materials.
3.The tribunals reasoning is unfairly biased and based on unsound reasoning. The tribunal gave significant weight to the fact that the applicant had not commenced employment with his new Australian sponsoring company at the time of the decision. The tribunal placed undue regards on this point failing to consider the steps taken to organise a sponsor which included lodgement of Nomination Application. The applicant should not be disadvantaged by the departments long processing times as the Nomination was filed on 29 September 2016 and yet to be decided.
4.The tribunal took into account the new legislative instrument IMMI17/040, and stated that the ‘Customer Service Manager’ Position is now listed on a Short Term Skilled Occupation List (STSOL) and is subject to certain restrictions including exclusions of a base salary less than $65,000.00. The tribunal decided not to adjourn given the new latest legislative changes and pending Nomination Application before the Department. This is not a relevant consideration for the tribunal. The scope of power for determining the success of the nomination application and new legislative changes lays with the department and should not apply retrospectively. This goes against natural justice principles.
5.The applicant, in the circumstances of this case, had a fair chance and still has a fair chance to secure employment with an Australian company who is an approved standard business sponsor and who has nominated the applicant in a position within the business and waiting for this Nomination to be approved by the Department.
(Without alteration)
The materials before the Court include: the Court Book; the Affidavit of the First Applicant, affirmed and filed 24 May 2017; the Minister’s Submissions; and a List of Authorities filed by the Minister on 5 October 2021. The Court has also considered the transcript of the Final Hearing where both the Applicants, with the assistance of an interpreter, and the Solicitor for the Minister made submissions.
The Court will now consider each ground of review.
CONSIDERATION
Ground 1
In Ground 1, the Applicants contend that the Tribunal breached provisions of the Migration Act by failing to act according to substantial justice and on the merits of the case ‘and/or’ failing to act in a way that is fair and just.
The relevant provisions of the Migration Act purposed by the Applicants to have been breached by the Tribunal are ss 353(b) and 357A(3), which provide as follows:
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part-5-reviewable decision:
(a) […]
(b) shall act according to substantial justice and the merits of the case.
357A Exhaustive statement of natural justice hearing rule
(1)[…]
(2)[…]
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
The Court notes that Ground 1 has not been particularised by the Applicants and was not addressed by the Applicants at the Final Hearing.
The Minister submitted that these provisions of the Migration Act alone do not provide an applicant with any substantive rights and cannot be ‘breached’ in the strict sense.[33]
[33] First Respondent’s Submissions, filed 22.9.21 (Minister’s Submissions), [15].
The Minister further submitted that the Tribunal did act according to substantial justice and merits of the case, and in a way that was fair and just. Factors in support of this argument included the following:
(a)The Tribunal’s compliance with its obligations under ss 360 and 360A of the Migration Act to invite the Applicants to attend a hearing;
(b)The Applicants’ and their Representative’s attendance at the Tribunal Hearing, where they were given an opportunity to give evidence and present arguments; and
(c)The information relied upon by the Tribunal was not such that the Tribunal was required to put any information to the Applicants for comment, pursuant to s 359A of the Migration Act.[34]
[34] Minister’s Submissions, [16].
Insofar as Ground 1 is taken to be an assertion that the Tribunal did not act fairly or justly by deciding not to adjourn until the outcome of the nomination application with the Prospective Sponsor was finalised, the Minister submitted that the Tribunal acted reasonably by proceeding to make its decision.[35] The Tribunal, having considered whether the matter should be adjourned pending the outcome of the nomination application, found that the adjournment should not be made on the basis of a range of factors, including the uncertainty as to ‘if and when’ the [First Applicant] will become the subject of an approved business nomination’.[36]
[35] Minister’s Submissions, [17].
[36] CB 145, [42].
I agree with the submissions of the Minister and note that it was open for the Tribunal to refuse an adjournment in circumstances where the outcome of the application was unknown. Further, the fact that the Applicants were invited to a hearing before the Tribunal, where they had an opportunity to present arguments and evidence, which the Tribunal then thoughtfully considered in making its decision, indicates that the Tribunal acted according to the merits of a case, and in a way that was fair and just.
No jurisdictional error is identified in Ground 1 and therefore Ground 1 is dismissed.
Ground 2
In Ground 2, the Applicants contend that:
(a)The Tribunal misunderstood ‘and/or’ misapplied the applicable law; and
(b)The Tribunal otherwise failed to rely exclusively on relevant facts and law and took into account irrelevant materials and considered irrelevant facts, information and materials.
I note that Ground 2 has also not been expanded upon by the Applicant with any particularity.
I will address each aspect of Ground 2 in turn.
Misapplication of the Law
The ‘applicable law’ as it relates to the Tribunal’s decision is contained within s 116 of the Migration Act, Part 457 of Schedule 2 to the Regulations, and condition 8107 in Schedule 8 of the Regulations (as they existed at the time of the Tribunal’s Decision and Delegate’s Decision relevantly).
Part 457 of Schedule 2 to the Regulations sets out the criteria for the Visa. As stated in r 457.611 of Part 457, certain conditions apply to the grant of the Visa:
457.6 – Conditions
457.611
(1) […]
(2)If the applicant satisfies the primary criteria, condition 8107 must be imposed.
[…]
Condition 8107, found in Schedule 8 of the Regulations titled ‘Visa conditions’, relevantly provides that:
(1) […]
(2) […]
(3)If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(a) […]
(aa) […]
(b) if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days
[…]
The Delegate’s Decision made reference to condition 8107 as follows:
Your visa was granted to you with condition 8107 imposed.
[…]
Neither you nor your sponsor have informed the department that you have returned to work for the sponsor or an associated entity of theirs, within 90 consecutive days of ceasing employment.
[…]
Therefore, I am satisfied that you have ceased employment for more than 90 consecutive days, and therefore do not meet the requirements of paragraph 8107(3)(b) of condition 8107 attached to your visa.[37]
[37] CB 43-44.
The Tribunal, at the commencement of its decision, correctly identified that the Delegate’s Decision was made on the basis that the First Applicant breached condition 8107(3)(b) and further noted the issue before it was whether that ground for the Delegate’s Decision was made out.[38]
[38] CB 140, [2].
The Tribunal then went on to examine the circumstances surrounding the Delegate’s Decision, with reference to whether those circumstances amounted to a breach of condition 8107(3)(b). On the basis of this examination, including the viva voce evidence given by the Applicant at the hearing before the Tribunal, the Tribunal found that the First Applicant ceased employment for a period exceeding 90 days, in breach of condition 8107(3)(b).[39]
[39] CB 143, [32].
I agree with the submissions of the Minister that there was no misapplication of the law by the Tribunal in this respect, as the evidence before the Tribunal clearly indicated that at the time of its decision, 335 days had passed since the First Applicant was employed by any approved sponsor.[40]
[40] Minister’s Submissions, [24].
At the time of the Delegate’s Decision, s 116 of the Migration Act relevantly provided as follows:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) …
(aa) …
(b) its holder has not complied with a condition of the visa; or
[…]
The Tribunal correctly recognised that s 116(1)(b) of the Migration Act did not require mandatory cancellation of the Visa and proceeded to determine whether or not, given that condition 8107(3)(b) had been breached, it should exercise its discretion to cancel the Visa.
The Tribunal ultimately found that the reasons for cancelling the Visa outweighed the reasons not the cancel the Visa.[41] I agree with the submissions of the Minister that this decision was open to the Tribunal on the material before it,[42] as it had been for the Delegate.
[41] CB 147, [62].
[42] Minister’s Submissions, [25].
Further, the Applicants failed to particularise the way in which they claimed that the Tribunal misunderstood ‘and/or’ misapplied the applicable law.
Taking into account relevant or irrelevant facts, information and materials
The Tribunal will fall into error where it has failed to take into account a relevant consideration that it is statutorily bound to take into account, and where it takes into account an irrelevant consideration that it is prohibited from taking into account, as determined by reference to the relevant statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Peko-Wallsend).
In the absence of any particulars with respect to this aspect of Ground 2, it is unclear what relevant or irrelevant facts, information and material are submitted by the Applicants to have not been taken into account or been taken into account by the Tribunal respectively.
As stated at [38] above, the relevant and applicable statutory provisions as they related to the Tribunal’s decision were: s 116 of the Migration Act; Part 457 of Schedule 2 to the Regulations; and condition 8107 in Schedule 8 of the Regulations. In making its decision, the Tribunal took into account evidence relating to whether the First Applicant did in fact meet the grounds for cancellation, namely, whether he had ceased employment for a period exceeding 90 days. Based on the evidence, the Tribunal found that condition 8107 had been breached by the First Applicant.
The Tribunal recognised the discretionary nature of the cancellation power in s 116 of the Migration Act. The Tribunal stated:
34.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.[43]
[43] CB 143-144, [34].
It is clear that the Tribunal understood its task and made its decision with reference to the relevant evidence and legislative guidance that was open to it. I therefore agree with the submissions of the Minister that there is no evidence that the Tribunal failed to consider all relevant considerations.[44]
[44] Minister’s Submissions, [28].
Similarly, the Tribunal’s Decision contains no evidence within it that the Tribunal took into account any irrelevant considerations, being those that it was prohibited from considering by virtue of the Migration Act. Rather, there is a connection in subject matter, scope and statutory purpose that underpins all of those considerations by the Tribunal that formed the basis of its decision: Peko-Wallsend at 40.
No jurisdictional error is identified in Ground 2. Ground 2 is therefore dismissed.
Ground 3
In Ground 3, the Applicants assert that the Tribunal’s reasoning is unfairly biased and based on unsound reasoning. This was submitted to include the significant weight placed on the fact that the First Applicant had not commenced employment with the Prospective Sponsor, and the Tribunal’s failing to consider the steps taken to organise the Prospective Sponsor’s nomination, including lodging the nomination application.
Also within Ground 3, the Applicants contended that they ‘should not be disadvantaged by the [Department’s] long processing times’.
Ground 3 has also not been expanded upon by the Applicants with any particularity.
I note that there are again a number of aspects to Ground 3, which I will address in turn.
Bias and ‘unsound reasoning’
The Minister’s Submissions have correctly identified that the Tribunal will fall into jurisdictional error where its decision was affected by actual or apprehended bias.[45] I agree with the submissions of the Minister that there is no aspect of the Tribunal’s conduct that gives rise to a complaint by the Applicants of actual or apprehended bias.
[45] Minister’s Submissions, [31].
In considering the example provided by the Applicants of the weight afforded by the Tribunal to the fact that the First Applicant had not yet commenced employment with the Prospective Sponsor, I note the comments of Mason J in Peko-Wallsend, at 40:
[…] it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
I note therefore that to engage in an examination about the weight to be afforded to certain evidence is in the realm of merits review and cannot be undertaken by the Court. This extends to the Applicants’ contention that the Tribunal failed to consider the steps taken by the First Applicant to organise a sponsor, which it was open to the Tribunal to afford little to no weight.
Department’s processing times
The Applicants’ assertion that the Department’s ‘long processing times’ has disadvantaged them in some way has not been particularised. The Minister’s Submissions, with which I agree, have addressed this aspect of Ground 3 in relation to the Department’s processing of the nomination application of the Prospective Sponsor.[46]
[46] Minister’s Submissions, [35].
I agree with the submissions of the Minister that there has been no apparent disadvantage to the Applicants by the processing time of the nomination application. This is so because the First Applicant ceased employment with the Sponsor on 20 May 2016 and did not lodge a nomination application with the Prospective Sponsor until 29 September 2016, over 90 days later. The breach of condition 8107 therefore already occurred prior to the new nomination application being lodged.
Further, as submitted by the Minister, the Tribunal took into account the pending nomination application in considering whether to exercise the discretion under s 116 of the Migration Act.[47]
[47] CB 143, [25]-[26] and 144, [39].
No jurisdictional error is identified in Ground 3 and Ground 3 is therefore dismissed.
Ground 4
Ground 4 of the Application contends that the Tribunal considered the ‘new legislative instrument IMMI17/040’, made certain statements regarding the ‘Customer Service Manager’ position, and decided not to adjourn the matter on the basis of new legislative changes, which was not a relevant consideration.
Ground 4 also contains a claim to the effect that the Tribunal’s consideration of the prospects of success of the nomination application were ‘against natural justice principles’, as the power to determine whether a nomination application is successful rests exclusively with the Department.
The Minister submitted that the Tribunal was not prevented by the Migration Act from having regard to IMMI17/040, which it did by informing the Applicant that IMMI17/040 had been introduced and affected the Visa type, and deciding not to adjourn the matter citing the new legislative changes as one reason for such a decision, among others.[48]
[48] Minister’s Submissions, [38].
I agree with the submissions of the Minister that the Tribunal’s consideration of IMMI17/040 was open to it and indeed cannot be said to have been a consideration prohibited by the Migration Act to have been taken into account by the Tribunal. It therefore cannot be an irrelevant consideration.
The Tribunal’s decision not to adjourn the matter pending the outcome of the nomination application was similarly open to the Tribunal to make.
I do not consider there to have been a breach of natural justice by the Tribunal’s comments in relation to the Applicant’s pending nomination application with the Prospective Sponsor, as it is plain from the Tribunal’s comments that this was only one among a number of factors it considered in deciding against an adjournment. The nomination application was not determined by the Tribunal with any certainty, but its ‘prospects’ were merely noted.
No jurisdictional error is identified in Ground 4. Ground 4 must therefore be dismissed.
Ground 5
In Ground 5 it is asserted that the First Applicant had, and still has, a fair chance to secure employment with the Prospective Sponsor.
I agree with the submissions of the Minister that this ground is ‘more a statement regarding the present circumstances of the matter than a ground of judicial review’.[49]
[49] Minister’s Submissions, [40].
Insofar as Ground 5 is an assertion by the Applicant that the Tribunal unreasonably denied an adjournment in the circumstances of the pending nomination application, this has been addressed previously in these Reasons for Judgment. No jurisdictional error is identified in Ground 5 and Ground 5 is therefore dismissed.
CONCLUSION
The Application fails to identify any jurisdictional error.
The Application is therefore dismissed.
In the Minister’s Submissions, the Minister sought costs fixed in the sum of $7,467.[50] This amount is less than the scale amount pursuant to pt 2, div 1, item 3 of sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, an Order will be made that the Applicants pay the Minister’s costs fixed in the sum of $7,467.
[50] Minister’s Submissions, [41].
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 29 June 2023
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