Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 207
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 207
File number(s): MLG 1124 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 2 November 2021 Catchwords: MIGRATION – Temporary Business Entry visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued cl 457.223(4) o the Regulations – whether the Tribunal failed to consider information – whether the Tribunal proceeded in haste or was unreasonable – whether the Tribunal erred by not complying with s 353(1) of the Act – no jurisdictional error – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 140GB, 353, 359, 359A, 476
Migration Regulations 1994 (Cth), cll 457.223, 457.224 and 457.321 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bodige v Minister for Immigration and Border Protection [2018] FCCA 1841
Bodige v Minister for Immigration and Border Protection [2018] FCA 2026
Craig v State of South Australia (1995) 184 CLR 163
Khatri v Minister for Immigration and Border Protection [2015] FCCA 407
Khatri v Minister for Immigration and Border Protection [2015] FCA 669
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 27 October 2021 Place: Perth Applicants: First applicant in person Counsel for the First Respondent: Mr J Simpson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1124 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHDEEP SINGH SIDHU
First Applicant
BALJEET KAUR LATALA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicants in this matter seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 May 2017. The Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas (the “visa/visas”). Relevantly, the Tribunal determined that the first applicant was not the subject of an approved nomination as required by cl 457.233(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”).
BACKGROUND
A detailed overview of the background to this matter was provided in written submissions filed by the Minister on 13 October 2021 (at [1] to [11]). Having reviewed the Court Book (“CB”) in detail, the Court adopts that overview as its own.
With some additions, the Minister’s summary provides as follows.
The first applicant is a citizen of India (CB 2). The second applicant is his wife. She is also a citizen of India (CB 3).
The applicants applied for the visas the subject of this proceeding on 11 August 2015 (CB 1). The first applicant, who was the primary applicant, relied on a nomination by D R & J Fabbris Pty Ltd ATF Fabbris Unit Trust (the “sponsor”) for the position of “manufacturer” (CB 10, 18, 47).
On 29 September 2015, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that the first applicant had the skills, qualifications, or employment background necessary to perform the nominated occupation, as required by cl 457.223(4)(da) of Schedule 2 to the Regulations (CB 117-120).
The delegate did not address whether the first applicant was the subject of an approved nomination (which, as discussed below, would prove to be the dispositive issue before the Tribunal).
On 13 October 2015, the applicants applied to the Tribunal for review of the delegate’s decision. They did so with the assistance of a Registered Migration Agent (CB 130-131).
On 27 October 2016, the Tribunal invited the applicants to provide information to the Tribunal by 10 November 2016. The Tribunal did so pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”) (“the s 359 invitation”) (CB 150-153).
That s 359 invitation provided:
You are invited to provide the following in writing:
•Information to demonstrate you are the subject of an approved business nomination which has not ceased as required by c1.457.223(4)(a) of the Regulations, OR
•Information to demonstrate you will meet this requirement in the near future - for example by providing information to demonstrate that you have the current support of an approved business sponsor and that a nomination application for you is currently being processed by the Department of Immigration and Border Protection.
•Please note: Under the Regulations, the approval of a business nomination for a Subclass 457 visa ceases after 12 months (if it has not already ceased for another reason): r.2.75. This means that nominations are valid for a maximum of 12 months and a new business nomination application by an approved business sponsor to the Department of Immigration and Border Protection will be required if a nomination has not been approved in the last 12 months.
•Information to demonstrate that you have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
On 10 November 2016, the applicants, through their agent, sought an extension of time within which to provide the information requested (CB 154-155).
The Tribunal granted the applicants an extension of time (until 25 November 2016) to provide that information (CB 156-158).
On 28 November 2016, the applicants' representative provided the Tribunal with two letters that had been sent from the Department of Home Affairs (the “Department”) to the sponsor (CB 166):
(a)a letter dated 28 November 2016, acknowledging receipt of a nomination application from the sponsor (CB 168-171); and
(b)a letter dated 24 November 2016, acknowledging receipt of a sponsorship application from the sponsor (CB 172-175).
The applicants attended a hearing before the Tribunal on 7 February 2017 with their representative (CB 217-220).
By letter dated 28 February 2017, the Tribunal invited the applicants to comment on or respond to information under s 359A of the Act being that the sponsor had withdrawn its nomination application. The applicants were advised that if this information was correct and relied upon, the Tribunal would be required to affirm the delegate's decision on the basis that the first applicant did not satisfy cl 457.223(4)(a) of the Regulations (CB 250-251).
The applicants' representative responded on 14 March 2017. Relevantly, the representative confirmed that the sponsor had withdrawn the nomination but had lodged a further nomination application (CB 253).
That email response attached a letter from the Department to the sponsor dated 21 December 2016 acknowledging the receipt of a nomination application (CB 254-257).
On 20 April 2017, the Tribunal again invited the applicants to comment on, or respond to, information under s 359A of the Act – relevantly, information that the sponsor's second nomination application had been refused on 13 April 2017. The Tribunal also advised the applicants that, if this information were relied upon, it would be the reason, or part of the reason, for affirming the delegate's decision (CB 266-267).
The applicants’ representative responded to the Tribunal later that same day and confirmed, simply, that the second nomination application had indeed been refused (CB 268). The refusal letter from the Department was attached to that correspondence (CB 269-276). No other information was provided to the Tribunal in this regard.
On 8 May 2017, the Tribunal affirmed the delegate's decision to refuse to grant the visa (CB 283-288). The Tribunal was not satisfied that the first applicant was the subject of an approved nomination and, as such, did not satisfy cl 457.233(4)(a) of the Regulations (CB 286 at [19]). The second applicant, accordingly, did not satisfy cl 457.321 of the Regulations (CB 286 at [21]).
On 29 May 2017, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 22 paragraphs. Two pages comprise an extract of cl 457.223 of Schedule 2 of the Regulations.
The Tribunal first identified the type of visa the applicants had sought (at [1]-[3]).
The Tribunal noted that the delegate had refused to grant the visa on the basis that the first applicant did not “have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Manufacturer (ANZSCO 133411)” (at [4]).
The Tribunal then outlined the Tribunal proceedings to date, as follows:
(a)the applicants applied to the Tribunal on 13 October 2015 for review of the delegate’s decision (at [5]);
(b)on 27 October 2016, the Tribunal invited the applicants pursuant to s 359(2) of the Act to provide information in writing to demonstrate that the first applicant met the requirements of cl 457.223(4)(a) of the Regulations or information that will demonstrate that the first applicant would meet that requirement in the future; and information in writing to demonstrate that the first applicant met the requirements of cl 457.223(4)(da) of the Regulations (at [6]);
(c)on 28 November 2016, the applicants’ representative submitted two letters from the Department dated 24 November 2016 and 28 November 2016 as evidence that the first applicant’s prospective employer had lodged a sponsorship application with the Department and a new business nomination respectively (at [7]);
(d)on 6 December 2016, the Tribunal invited the applicants to attend a hearing scheduled for 7 February 2017 as it was unable to make a favourable decision on the materials before it (at [8]);
(e)on 6 February 2017, the applicant’s representative submitted an undated letter from the Director of the applicant’s sponsoring business, PAYG payment summaries for the first applicant, a Notice of Tax Assessment for the first applicant and a copy of the first applicant’s payslips (at [9]-[10]);
(f)on 7 February 2017, the applicants appeared before the Tribunal with their migration agent. The sponsorship application made by the first applicant's prospective employer was approved on 20 January 2017. During the course of the hearing, the Tribunal raised an additional issue with the applicants, explaining the requirements of cl 457.224(4)(a) of the Regulations, which requires that there is an approved nomination of an occupation relating to the applicant, by a standard business sponsor that has not ceased (at [11]);
(g)following the hearing, the Tribunal “decided to postpone making its decision until the decision was made by the department on nomination application lodged by the sponsoring business on 28 November 2016” (at [12]);
(h)on 28 February 2017, the Tribunal wrote to the applicants pursuant to s 359A of the Act to invite them to comment on information before the Tribunal that on 9 February 2017 the first applicant’s prospective employer, DR & J Fabbris, had withdrawn its nomination application lodged on 28 November 2016 (at [13]);
(i)on 14 March 2017, the applicants’ representative responded to the Tribunal's letter of 28 February 2017 by stating that the sponsoring employer withdrew the nomination application lodged on 28 November 2016 ‘due to certain circumstances’ and lodged a fresh nomination application on 21 December 2016. The representative submitted a copy of the Department’s acknowledgment letter dated 21 December 2016 as evidence that the first applicant’s prospective employer had lodged a nomination application with the Department (at [14]);
(j)on 13 April 2017, the Tribunal received information from the Department that the business nomination application which had been lodged by the applicant’s prospective employer on 21 December 2016 had been refused by the Department on 13 April 2017 (at [15]); and
(k)on 20 April 2017, the Tribunal wrote to the applicants, pursuant to s 359A of the Act, inviting their comments on or response to the information that on 13 April 2017 the Department had refused the nomination application lodged by the first applicant's prospective employer, DR & J Fabbris on 21 December 2016. On the same day, the applicants’ representative submitted a copy of the Department’s nomination refusal notice dated 13 April 2017 (at [16]).
The Tribunal then determined as follows:
Requirement for an approved nomination
18. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
19. Based on the evidence before it, including copy of the DIBP nomination refusal notice dated 13 April 2017 provided to the tribunal by the applicants, the tribunal finds that the first named applicant is not, at the time of tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased. The tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a).
The Tribunal ultimately found that the first applicant did not meet the requirements for the grant of the visa. The Tribunal also noted that no claims had been made in respect of the other streams in cl 457.223 of the Regulations (at [20]). Further, as the first applicant was found not to have satisfied the primary criteria, the Tribunal concluded that the second applicant did not meet the criterion in cl 457.321 of Schedule 2 of the Regulations (at [21]).
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [22]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 29 May 2017 contains two particularised grounds of review as follows:
1. The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 457.223 (4) of the Migration Regulations 1994 (Regulations).
Particulars
a. The Tribunal erred in not considering that the applicant meets the requirements of clause 457.223(4)(da) where 5 years of relevant experience may substitute for the formal experience.
b. The delegate erred in not considering the applicant's work experience for the period of January 2003 to June 2008 meets the requirements of clauses 457.223 (4) (da) of the Regulations.
c. The delegate erred in not specifying the relevant ANZCO code which the Minister considers necessary to perform the task of the nominated occupation.
d. Applying Khatri & Anor v Minister for Immigration & Anor [2015] FCCA 407 the Tribunal erred in failing to consider information of which it was aware, and which was central to the applicant's case in deciding to proceed to make a decision on 8 May 2017. The Tribunal was aware the applicant's proposed nominator DR & J Fabbris sponsorship application was approved on 20 January 2017 and that a nomination was lodged by the nominator. It was unreasonable for the Tribunal to proceed in haste with the decision considering the proposed nominator had twice on 28 November 2016 and 21 December 2016 lodged the nomination to nominate the applicant.
2. In the alternative to ground 1 above the Tribunal erred by not complying with Section 353(1) of the Migration Act 1994 (the Act)
a. The Tribunal has failed to fully comply with Section 353(1) of the Act by not acting fairly and justly and denying the applicant sufficient time to organise a new nomination.
The first applicant filed an affidavit affirmed on 29 May 2017. That affidavit attached a copy of the Tribunal’s decision.
The applicants were given an opportunity to file an amended application, any supporting affidavits and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit filed on 29 May 2017, a Court Book numbering 313 pages (marked as Exhibit 1) and written submissions filed by the Minister on 13 October 2021.
The applicants appeared before this Court without legal representation. The first applicant spoke on behalf of his wife. An interpreter in the Punjabi and English languages was, at the applicant’s request, made available to assist the applicants. Her assistance was not, however, required as the first applicant chose to speak to the Court in English. He did so clearly and without hesitation. The parties appeared by video link. No issues were raised or arose in this regard.
The Court confirmed with the first applicant that he had a copy of the Court Book and the Minister’s written submissions with him.
Noting that the applicants were unrepresented (and noting the principles outlined in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court gave the first applicant an opportunity to elaborate on the grounds of review as articulated in the application for judicial review and outline any additional concerns he might have with the Tribunal’s decision.
To assist the first applicant, the Court explained that it could only address the issue of jurisdictional error on the part of the Tribunal. The Court stressed that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, however, the Court often sees the following categories of error:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background the first applicant told the Court that “his lawyer” had drafted his grounds of review but that, in effect, he was concerned that the Tribunal did not take into account or properly assess his qualifications and work experience over five and a half years. This submission will be considered below.
CONSIDERATION
The Court notes that the applicants were unrepresented before this Court and that their grounds of review were drafted by a third party. Not surprisingly, the first applicant was not able to address his grounds of review in detail before this Court. In the circumstances, the Court has interpreted the applicants’ grounds of review as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised. The Court has also considered for itself whether any error arises in the Tribunal’s decision: as per the decision in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Ground 1
For ease of reference, ground 1 provides:
1. The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied clause 457.223 (4) of the Migration Regulations 1994 (Regulations).
Particulars
a. The Tribunal erred in not considering that the applicant meets the requirements of clause 457.223(4)(da) where 5 years of relevant experience may substitute for the formal experience.
b. The delegate erred in not considering the applicant's work experience for the period of January 2003 to June 2008 meets the requirements of clauses 457.223 (4) (da) of the Regulations.
c. The delegate erred in not specifying the relevant ANZCO code which the Minister considers necessary to perform the task of the nominated occupation.
d. Applying Khatri & Anor v Minister for Immigration & Anor [2015] FCCA 407 the Tribunal erred in failing to consider information of which it was aware, and which was central to the applicant's case in deciding to proceed to make a decision on 8 May 2017. The Tribunal was aware the applicant's proposed nominator DR & J Fabbris sponsorship application was approved on 20 January 2017 and that a nomination was lodged by the nominator. It was unreasonable for the Tribunal to proceed in haste with the decision considering the proposed nominator had twice on 28 November 2016 and 21 December 2016 lodged the nomination to nominate the applicant.
In effect, ground 1 raises concerns about the Tribunal’s interpretation and application of cl 457.223(4) of the Regulations.
Particular (a) asserts that the Tribunal erred in not considering whether the first applicant met cl 457.223(4)(da) of the Regulations. This clause, the Court notes, was the basis of the delegate's decision.
The Minister contends (at [17] in written submissions filed on 13 October 2021) that this assertion cannot succeed because:
…[t]he Tribunal's finding that the first applicant was not the subject of an approved nomination, and did not satisfy cl 457.223(4)(a), was dispositive. Whether the first applicant satisfied other criteria for the grant of the visa was irrelevant: Bodige v MIBP [2018] FCCA 1841 at [24] per Judge Riley. The Tribunal was not required to consider any other criteria in order to discharge its function of review.
The Court agrees with the Minister in this regard.
Clause 457.223(4) of Schedule 2 to the Regulations provided:
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba)either:
(i)the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d) the Minister is satisfied that:
(i)the applicant’s intention to perform the occupation is genuine; and
(ii)the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and …
It is clear from the drafting of cl 457.223(4) of the Regulations that the Tribunal was required to consider each of the subclauses of cl 457.223(4) of the Regulations and that the first applicant was required to satisfy each subclause. This is because of the use of the word “and” after each subclause.
If an applicant does not satisfy cl 457.223(4)(a) of the Regulations, it is then irrelevant whether he or she may satisfy the other subclauses: Bodige v Minister for Immigration and Border Protection [2018] FCCA 1841 at [24], leave to appeal refused in Bodige v Minister for Immigration and Border Protection [2018] FCA 2026.
Here, on the evidence, no nomination existed. As such, the requirements of the relevant subclause were not met.
The evidence before the Tribunal demonstrates that the first nomination had been approved but was then subsequently withdrawn (CB 253). A second nomination was then refused
(CB 268-276) and, importantly, there was no evidence before the Tribunal of any other nomination application in place or pending.
In those circumstances, the only decision open to the Tribunal was a decision that the applicant did not have an approved nomination and, as such, did not satisfy cl 457.223(4)(a) of Schedule 2 to the Regulations. Once that determination had been made, no other evidence needed to be assessed or any further determination made.
On the basis of the above, it cannot be said that the Tribunal “misconstrued or misapplied clause 457.223(4)” of the Regulations.
With respect to particulars (b) and (c), this Court has no jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. The Tribunal’s decision on review “cures” any error in the delegate’s decision or processes: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
The Minister also submits that, even if the assertions articulated in particulars (b) and (c) are levelled at the Tribunal’s decision, they fail for the same reasons outlined above in relation to particular (a).
The Court agrees.
Particulars (b) and (c) allege that that the delegate failed to consider the applicant’s work experience and erred in not specifying the relevant “ANZCO code” (the Court assumes this to be a reference to the Australian and New Zealand Standard Classification of Occupations (the “ANZSCO code”)). Even if these particulars reference the Tribunal’s decision, the Tribunal was not required to consider the applicant’s work experience or the relevant ANZSCO code. Once the Tribunal had determined that that there was no approved nomination (needed to satisfy cl 457.223(4)(a) of Schedule 2 to the Regulations), no further analysis of the other subclauses was required or, indeed, permitted. Evidence about the applicant’s work experience or findings about the relevant ANZSCO code were irrelevant once it was clear that no nomination existed.
In effect, particular (d) raises concerns related to procedural fairness or unreasonableness.
For ease of reference, the particular provides:
d. Applying Khatri & Anor v Minister for Immigration & Anor [2015] FCCA 407 the Tribunal erred in failing to consider information of which it was aware, and which was central to the applicant's case in deciding to proceed to make a decision on 8 May 2017. The Tribunal was aware the applicant's proposed nominator DR & J Fabbris sponsorship application was approved on 20 January 2017 and that a nomination was lodged by the nominator. It was unreasonable for the Tribunal to proceed in haste with the decision considering the proposed nominator had twice on 28 November 2016 and 21 December 2016 lodged the nomination to nominate the applicant.
In relation to particular (d), the Minister submitted as follows (in written submissions dated
13 October 2021) (emphasis added):
19. Particular (d) asserts that the Tribunal erred in failing to consider information of which it was aware and that was central to applicant's case, being that the sponsor's sponsorship application had been approved on 20 January 2017, and the sponsor had lodged two nomination applications on 28 November 2016 and 21 December 2016; and that it was unreasonable for the Tribunal to "proceed in haste" with the decision. Both assertions are without merit. The Tribunal was aware that the sponsorship application had been approved (CB 285, [11]), and that two nomination applications had been made, the first having been withdrawn, and the second refused (CB 284-285, [7], [13]-[15]). The applicants were given two opportunities under s 359A to comment on those adverse outcomes. The applicants' response to the second s 359A letter did not indicate that a new sponsorship was being organised, or that the sponsor was seeking to review the decision on the second nomination application (and, in any event, the 21 day timeframe for the sponsor to lodge any review had expired by the time the Tribunal made its decision), or otherwise request additional time to respond (CB 268). The Tribunal had already delayed making a decision until the second nomination application was determined. There is nothing to suggest the Tribunal acted in a manner that was arbitrary or capricious, or lacked an evident and intelligible justification: cf MIAC v Li (2013) 249 CLR 332 (Li) at [28], [31] per French CJ; at [76] per Hayne, Kiefel and Bell JJ.
20. The decision of Khatri v MIBP [2015] FCCA 407, which the applicants cite, does not assist them. That decision also involved an assertion that the Tribunal acted unreasonably in proceeding to make a decision that the applicant did not meet cl 457.223(4)(a), in the context of the Tribunal inviting the applicant to provide evidence, within 14 days, that they were the subject of an approved nomination, and the applicant failing to respond to that request or seek additional time. Although the sponsor had recently been successful before the same Tribunal member in obtaining sponsorship approval, there was no evidence of any nomination application having been approved. Judge Street dismissed the application, finding it was reasonably open for the Tribunal to proceed. That decision was upheld on appeal: Khatri v MIBP [2015] FCA 669.
21. The same applies in the present matter; there was no evidence of an approved nomination, although the circumstances differ. Here the applicants responded to each of the three invitations sent on 27 October 2016, 14 March 2017 and 27 April 2017, and the last response confirmed that the sponsor's second nomination application had been refused. Compared to Khatri, there is a stronger basis on which it was reasonably open to the Tribunal to proceed to make its decision.
The Court agrees with the Minister in this regard.
In relation to whether the Tribunal “failed to consider information of which it was aware”, the Tribunal referred in its written reasons to information before it which showed that that the first nomination application lodged 28 November 2016 had been approved and subsequently withdrawn (at [11] & [13]). The Tribunal then referred to a second nomination application lodged on 21 December 2016 (which was refused) and the applicant’s evidence provided to the Tribunal which unequivocally confirmed that this was the case (at [14]-[16]). In the circumstances, it cannot be said that Tribunal “failed to consider information of which it was aware”.
With respect to whether the Tribunal “proceeded in haste” (or acted unreasonably given the facts and material before it), the Court notes, relevantly, as follows:
(a)
On 27 October 2016, the Tribunal invited the applicants, pursuant to s 359 of the Act to provide information that the applicants satisfied cl 457.223(4)(a) of Schedule 2 to the Regulations (CB 150-153). The Tribunal granted the applicants an extension to respond to the s 359 invite following the applicants’ request for an extension
(CB 156-158). The applicants responded to this request and provided evidence of the new nomination application (CB 166-175);
(b)The Tribunal invited the applicants to appear before the Tribunal at a hearing (CB 176-186). The applicants appeared before the Tribunal on 7 February 2017 (CB 217-220);
(c)On 28 February 2017, the Tribunal invited the applicants pursuant to s 359A of the Act to comment on or respond to information before the Tribunal that the new nomination application had been withdrawn – which, if the Tribunal accepted and relied upon, would be the reason or part of the reason, for the Tribunal to affirm the decision made by the Ministerial delegate (CB 248-252);
(d)The applicants responded to the first s 359A invite on 14 March 2017 and advised that the sponsor had withdrawn the nomination but had lodged a second nomination application on 21 December 2016 (CB 253-257). This second nomination application was refused on 13 April 2017 (CB 259-262);
(e)On 20 April 2017, the Tribunal invited the applicants, pursuant to s 359A of the Act to comment on or respond to information before the Tribunal that the second nomination application had been refused on 13 April 2017 – which, if the Tribunal accepted and relied upon, would be the reason, or part of the reason, for the Tribunal to affirm the decision made by the Ministerial delegate (CB 264-267); and
(f)The applicant responded to the second 359A invite on 20 April 2017 to advise that the second nomination application had been refused (CB 268-276). No other information was provided. There was, for example, no indication that a further nomination was pending and no extension of time was requested which, arguably, could have alerted the Tribunal to the possibility that a further nomination might be forthcoming.
The Tribunal made its decision to affirm the delegate’s decision refusing to grant the applicants the visas on 8 May 2017 (CB 283-288).
The above facts occurred over a period of 6 months. It cannot be said that the Tribunal “proceeded in haste”. The applicants were given an opportunity under s 359 of the Act to provide information addressing cl 457.223(4)(a) of Schedule 2 of the Regulations and the applicants were given two opportunities under s 359A of the Act to comment on the adverse information before the Tribunal. The applicants’ reply to the second s 359A invitation advised that the second nomination application had been refused. The applicants did not advise whether another nomination application was pending. Further, both of the s 359A invitations provided as follows:
This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa (CB 250 & 266).
The applicants were aware, from the s 359A invitations, that the first applicant was required to be the subject of an approved nomination. The applicants did not provide any information to the Tribunal in accordance with the second s 359A invitation that could satisfy the Tribunal that the first applicant was the subject of an approved nomination.
In the circumstances, there is nothing to suggest the Tribunal acted in a manner that was arbitrary or capricious, or which lacked an evident and intelligible justification: Li at [26]-[28].
The applicants also refer to Khatri v Minister for Immigration and Border Protection [2015] FCCA 407 (“Khatri”). As the Minister notes (in written submissions dated 13 October 2021 at [20]-[21]), Khatri dismissed an appeal from a decision of the Tribunal and held that it was reasonable for the Tribunal to proceed to make a decision in that matter when the applicant had failed to respond to (or seek an extension to respond to) an invitation to provide evidence within 14 days that the applicant was the subject of an approved nomination: Khatri at [22] & [24]. Khatri was upheld on appeal: Khatri v Minister for Immigration and Border Protection [2015] FCA 669.
As the Minister correctly argues, the Tribunal in the present matter afforded the applicants more latitude than that provided by the Tribunal in Khatri. Here, the Tribunal invited the applicants, under s 359 of the Act, to provide further information (CB 150-153) and the Tribunal invited the applicants twice under s 359A of the Act to provide information to satisfy cl 457.223(4)(a) of Schedule 2 of the Regulations (on 28 February 2017 and 20 April 2017) (CB 248-252 & 264-267). The applicants responded to the invitations to provide information (CB 166-175, 253-257, & 268-276). On the third occasion, the applicants simply advised that the second nomination application had been refused (CB 268-276).
Overall, it cannot be said here that the Tribunal “proceeded in haste” or acted unfairly or unreasonably. On the facts of this case, the Tribunal’s approach was entirely sound.
Ground 1 fails to identify jurisdictional error on the part of the Tribunal.
Ground 2
Ground 2 provides:
2. In the alternative to ground 1 above the Tribunal erred by not complying with Section 353(1) of the Migration Act 1994 (the Act)
a. The Tribunal has failed to fully comply with Section 353(1) of the Act by not acting fairly and justly and denying the applicant sufficient time to organise a new nomination.
As the Minister correctly noted in its written submissions dated 13 October 2021 (at [23]) s 353(1) of the Act provided that “[t]he Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
Section 353(1) of the Act was repealed by Item 42 in Schedule 2 of the Tribunals Amalgamation Act 2015 (Cth). However, an equivalent obligation is now contained in s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth). That section now mandates that, “in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: … (b) is fair, just, economical, informal and quick”.
It is not entirely clear what the applicants are asserting in ground 2.
If, as the Minister submits, the applicants are asserting that the Tribunal erred in not comply with s 353(1) by “not acting fairly and justly and denying the applicants sufficient time to organise a new nomination”, the Court disagrees that any unfairness arises on the facts of this case. In this regard, the Court notes, and agrees with, the Minister’s written submissions, which provide:
25. The criteria in s 2A(b) may inform an assessment of whether the Tribunal acted reasonably: Singh v MICMSMA [2020] FCCA 1349 at [33] per Judge Blake. For the reasons already given, the Tribunal did not act unreasonably in proceeding to make a decision, bearing in mind it was also required to provide a mechanism of review that was economical and quick. The Tribunal deferred making its decision until the second nomination application was determined. The applicants were given the opportunity respond when that second application was refused. They did not request any additional time to organise a new nomination. There is no basis to assert the Tribunal has acted unfairly or unjustly, or other than in accordance with s 2A(b).
As outlined in relation to Ground 1 above, the Tribunal invited the applicants numerous times to provide information that would satisfy the requirements of cl 457.223(4)(a) of Schedule 2 of the Regulations (CB 248-252 & 264-267). The applicants responded to three separate invitations to provide information (CB 166-175; 253-257; & 268-276). The Tribunal also invited the applicants to appear before the Tribunal at a hearing (CB 176-186) and the applicants appeared before the Tribunal on 7 February 2017 (CB 217-220). Relevantly, the applicants’ final correspondence indicated, without an further detail, that the relevant nomination had been rejected.
It cannot be said in the circumstances of this case that the Tribunal failed to act fairly and justly or denied the applicants an opportunity to present their case..
Ground 2 is, accordingly, dismissed.
DECISION
The application for judicial review filed by the applicants 29 May 2017 fails to identify any jurisdictional error. The Court is otherwise satisfied that the Tribunal has not fallen into jurisdictional error.
The applicants’ application for judicial review is dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 November 2021
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