Singh v MIBP

[2016] FCCA 2229

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2229

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination (Class RN) subclass 187 visa – whether the application was disentitled to a hearing before the Tribunal – whether a request for an extension of time was a response under s.359C.

Legislation:
Migration Act 1958, ss.359A, 359B(4), 359C, 360(2)(c) and (3), 363A
Migration Regulations 1994, r.5.19, Schedule 1, 1114C(3)(d), Schedule 2, 187.233

Cases cited:
Gazi v Minister for Immigration and Citizenship [2013] FCA 1094
Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; (2011) FCA 233

Applicant: ANGREJ SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 350 of 2015

Judgment of: Judge Riley

Hearing date: 10 June 2016 and 12 August 2016

Date of last submission: 12 August 2016

Delivered at: Melbourne

Delivered on: 12 August 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Nick Wood

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 24 February 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 350 of 2015

ANGREJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”).  The applicant applied on 7 June 2013 for a Regional Employer Nomination Permanent (Class RN) visa in the Direct Entry Stream.  A criterion for that visa was that the applicant have an approved nominator.  The applicant nominated a firm by the name of Harrico Pty. Ltd. (“Harrico”).  The nomination of that firm was not approved by the Minister for Immigration (“the Minister”).  Consequently, the delegate rejected the application for the visa.  The applicant then applied to the Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision.

2. The Tribunal wrote to the applicant on 18 December 2014.  The letter was headed:

   Invitation to comment on or respond to information – Mr Angrej Singh

3. The letter set out the terms of clause 187.233 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), as that clause was at the relevant time, that is:

   (1) The position to which the application relates is the position:

   (a) nominated in an application for approval that seeks to meet the requirements of:

   (i)    subparagraph 5.19(4)(h)(ii); or

   (ii) subregulation 5.19(4) as in force before 1 July 2012; and

   (b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2) The person who will employ the applicant is the person who was the nominator in the application for approval.

   (3)   The Minister has approved the nomination.

   (4)   The nomination has not subsequently been withdrawn.

   (5)   The position is still available to the applicant.

   (6)   The application for the visa is made no more than 6 months after the Minister approved the nomination.

4. The Tribunal said in the letter dated 18 December 2014 that it had certain information that could be a reason for affirming the decision under review.  The information was said to be as follows:

   Harrico Pty. Ltd. made an application to nominate you for an appointment in its business under the Regional Sponsored Migration Scheme (RSMS).  The Department made a decision to refuse it the nomination on 5 December 2013.  No application for review of that decision has been received by the Tribunal.

5. The Tribunal noted in its letter dated 18 December 2014 that the effect of that information was that there was no approved nomination by Harrico for the applicant. The Tribunal in its letter explained that the information was relevant because, if it were accepted it, would lead the Tribunal to conclude that the applicant was not the subject of an approved nomination for employment in the business of Harrico, and it would then follow that the applicant did not meet the requirements of clause 187.233.

6. The Tribunal in its letter dated 18 December 2014 invited the applicant to give comments or respond in writing by 2 January 2015.  The letter also said that, if the applicant was not able to give written comments or a response by 2 January 2015, he could seek an extension of time.  The letter said that if the applicant did not provide comments or a response within the period allowed, or any extended period, the Tribunal might make a decision without taking any further action to obtain the applicant’s views on the information.  The letter also said, in bold typeface:

   You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal’s letter dated 18 December 2014 was sent to the applicant’s agent who was a barrister and solicitor.  The agent responded on 19 December 2014 as follows:

   We refer to the above matter and confirm receipt of MRT request dated 18/12/14 that we respond to certain matters by 2 January 2015. 

   Our office closes today and we resume on 7 January 2015.

   Accordingly we request additional time to respond to the MRT request.

   We also advise as follows:

   1. Our client has an employer who will sponsor him for the 457 visa.

   2. We expect to lodge these applications by 31 January 2015.

   3. Our client will then depart Australia to lodge an offshore 457 application.  Following this we expect to withdraw the applicant’s MRT application. 

   We respectfully request an extension of time to respond until 15 February 2015.

   Should you have any queries, please do not hesitate to contact our office.

8. The Tribunal responded by email dated 9 January 2015 granting an extension of time until 23 January 2015.  The letter included in the email said:

   … The comments or response must now be received at the Tribunal by 23 January 2015. 

   If the Tribunal does not receive your comments or response by 23 January 2015, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

9. Neither the agent nor the applicant provided any response or comment by 23 January 2015, other than the letter dated 19 December 2014. The Tribunal determined that, as no comments had been given by the extended date, s.359C of the Migration Act 1958 (“the Act”) applied.

10. Subsection 359C(2) of the Act provided that:

    (2) If the applicant:

    (a) is invited under section 359A to comment on or respond to information; and

    (b) does not give the comments or the response before the time for giving them has passed;

    the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

11. Under s.360(2)(c) of the Act, the Tribunal was not obliged to invite an applicant to appear before it if subsection 359C(2) of the Act applied to the applicant. Subsection 360(3) of the Act provided that:

    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

12. Section 363A of the Act provided that:

    If a provision of this Part states that a person is not entitled to do something … the Tribunal does not have power to permit the person to do that thing …

13. The Tribunal applied those provisions and concluded that the applicant had no entitlement to a hearing.  The Tribunal relied in that regard on Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40. The Tribunal considered that the invitation had been correctly issued and decided to proceed to make a decision without taking any further steps to obtain comments from the applicant.

14. The Tribunal noted that, for applicants in the Direct Entry Scheme, clause 187.233 required that the position to which the application related was the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations, or under r.5.19(4) of the Regulations as it was prior to 1 July 2012.

15. The Tribunal noted that the position had to be one that was the subject of a declaration that was required to be made by the applicant as part of the visa application.  The Tribunal also noted that the relevant criterion required that:

    ·the person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved

    ·it has not been subsequently withdrawn and is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

16. The Tribunal noted that the delegate’s decision, which the applicant provided with the review application, indicated that the application for approval of the nominated position was refused by the Department of Immigration. There was no evidence before the Tribunal that there had been any application for a review of that decision. In the circumstances, the Tribunal concluded that there was no nominated position in relation to the applicant and consequently clause 187.233 was not met.

17. The applicant applied to this court without the benefit of legal assistance.  He said in his application the grounds of review were as follows: 

    1.     The MRT took account of irrelevant considerations.

    2.     The MRT failed to take account of relevant considerations.

    3      The MRT erred at law.

18. The applicant did not provide any particulars of those grounds.  The applicant did not file an outline of submissions in support of his grounds. 

19. The applicant attended the hearing on 10 June 2016 without the benefit of legal assistance.  On that occasion, various legal issues of a technical nature arose.  In addition, the applicant asked for an adjournment to find legal assistance.  The court ultimately adjourned the matter for approximately two months, partly to give the benefit of an adjournment to the applicant and partly to give the Minister an opportunity to file further written submissions. 

20. When the matter returned to court on 12 August 2016, the applicant did not have legal assistance.  He explained to the court that he had seen some lawyers who advised him that he had no prospect of success.  However, he said that there was another lawyer who had to go overseas but who had said that he might be able to help the applicant at a later point.  In all the circumstances of this case, I did not consider that it was appropriate to give the applicant a further adjournment when there was no real prospect that a further adjournment would permit the applicant to obtain legal assistance in the reasonably foreseeable future.

21. The first respondent filed written submissions prior to the first day of the final hearing and filed supplementary submissions prior to the resumed hearing. 

22. The technical issues that arose during the first day of the hearing were connected with the decision of the Federal Court in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; (2011) 120 ALD 259; (2011) 278 ALR 474; [2011] FCA 233. In that case Jagot J considered the requirement of s.359A of the Act to invite a person to comment on or respond to information and the consequences of a response of a certain type.

23. In Saba Bros, the solicitors for the applicant wrote to the Tribunal as follows: 

    We refer to section 351 notice [sic] and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like the opportunity of an oral hearing.

24. Her Honour considered that the applicant’s solicitor’s response satisfied the requirement to provide a response, with the result that the applicant was not disentitled to a hearing.  Her Honour said at paragraphs 26, 27, 30, 31 and 34 the following:

    Comments or response (s 359C(2)(b))

    26.The Minister submitted that: — (i) as s 395A(1)(c) requires an applicant to comment on or respond to the information the subject of an invitation under s 359A(1)(a), a “mere acknowledgement of the receipt” of that invitation does not constitute a response to the information it contains, (ii) similarly, a bald statement that the applicant wishes to comment on the information at a hearing may constitute a response to the invitation but does not constitute a response to the information it contains, (iii) a “response” requires some kind of “minimal grappling” with the information in question so as to indicate the applicant’s position in relation to it, (iv) as such, neither of the statements made in the 22 February letter constituted a response in the relevant sense, (v) Saba Bros therefore failed to respond to the information by the prescribed date, (vi) as a result, Saba Bros forfeited its right to an invitation to appear before the Tribunal, and therefore (vii) Saba Bros was not entitled to, and the Tribunal could not give to Saba Bros, a hearing

    27.Saba Bros accepted that s 395A(1)(c) requires a response, not merely to the invitation, but to the information it contains. However, it submitted that: — (i) the word “respond” is contrasted in the relevant sections with the word “comment”, (ii) the two words have different meanings and provide an applicant with potentially distinct alternatives (either to respond to or to comment on the information), (iii) Saba Bros’ statement that it “noted” the information in the Tribunal’s invitation constituted a response to the information without comment, (iv) the statement that Saba Bros “still” wished to be afforded an oral hearing also constituted a response in that it acknowledged the allegedly adverse nature of the information and implied that it was not fatal to Saba Bros’ application, (v) as such, the 22 February letter constituted a response in the relevant sense, (vi) Saba Bros did not therefore forfeit its right to an oral hearing by failing to respond by the prescribed date, and so (vii) the Tribunal was bound to invite Saba Bros to appear before the Tribunal.

    …

    30.Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice — to comment, respond or both — is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation

    31.It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.

    …

    34.The 22 February letter cannot be characterised as other than a response to the information. First, the letter characterised the information as “adverse information”. This indicates that the recipient of the letter had considered the information and concluded (albeit, in this case, erroneously) that it was adverse to the application for review. If the Minister were correct in saying that a comment or response must satisfy some minimum standard of content, then the mere characterisation of the information as “adverse” to Saba Bros’ application in the letter from its solicitors would suffice. Second, the letter said the information had been put to Saba Bros. Third, the letter said that Saba Bros had given instructions to its solicitors in the context of, and thus implicitly in response to, the information. Fourth, the instructions so given were communicated to the Tribunal as being to the effect that Saba Bros still would like the opportunity of an oral hearing. In so stating, the letter impliedly asserted that the information did not require the Tribunal to refuse Saba Bros’ application for review despite the recipient’s belief that the information was adverse to the application. The letter did not state why this was so, but the statutory provisions imposed no requirement that it do so. Brief the letter may have been; but it was a response to the information in the Tribunal’s invitation nonetheless.

25. The decision in SabaBros was considered by Logan J in the case of Gazi v Minister for Immigration and Citizenship [2013] FCA 1094. However, in that case, his Honour ultimately concluded that it was unnecessary to determine whether Saba Bros was correctly decided. His Honour said at paragraphs 42 and 44:

    42.This conclusion renders it unnecessary to determine whether Saba Bros was correctly decided. Unnecessary though it may be to determine that issue, a question which arises is whether, the issue having been raised by the Minister by a notice of contention, there is nonetheless an obligation, in the exercise of an intermediate appellate jurisdiction such as the present, to deal with it.

    …

    44.I do not consider that it is desirable in the circumstances of this case to deal with the issue raised by the notice of contention.  I should only depart from Saba Bros if convinced it was clearly wrong (a subject upon the merits of which I express no view).  Even if I were persuaded that that case was incorrectly decided, all that would mean, apart from deciding the issue inter partes, is that there would be two conflicting decisions of equal authority upon the same issue. And that issue is one of considerable practical importance in the Tribunal’s practice and procedure. Further, the issue transcends practice and procedure in that, for the Tribunal to fail to offer an invitation to a hearing where the Migration Act required that, would be not to conduct a review according to law. Potentially, the Tribunal could be faced with the unpalatable choice of deciding which of this Court’s decisions to follow. It is neither in the public interest nor that of the parties to Tribunal reviews to embark on the consideration of the issue in circumstances where it is not necessary so to do for the purposes of deciding the appeal. The issue is one appropriately confronted when it is essential to the determination of an appeal and then, in my respectful view, by a Full Court.

26. There is some scope for an argument that the court in Gazi did express agreement with Saba Bros.  In paragraph 29, Logan J expressed agreement with a certain aspect of the decision below.  However, reading the judgment in Gazi as a whole, it seems to me that Logan J did not find that Saba Bros was correctly decided but determined the case on an entirely separate basis. 

1. Saba Bros, of course, is binding on this court.  The Minister sought to distinguish it.  The Minister said that the response of the applicant in Saba Bros is materially different from the response of the solicitors in the present case.  The response in Saba Bros was very brief but did say that the solicitors had received instructions and that the applicant still wished to attend an oral hearing.  The solicitors also said that they noted that the Tribunal’s letter contained adverse information. 

2. There is nothing in the present case to indicate that the solicitor had obtained instructions, there is nothing in the solicitor’s letter which indicated that the information sent by the Tribunal had been assessed as adverse, and there was nothing in the solicitor’s letter to the effect that the applicant still wanted an oral hearing.  It seems to me that those three matters are grounds of distinction, as the Minister has suggested, and that the Tribunal was entitled to proceed in the applicant’s absence.

3. In any event, in the present case, the applicant was given additional time to comment but did not provide comments within that additional time. Subsection 359B(4) of the Act provided that:

   If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period. 

4. In the present case, the applicant did not provide a response within that further period.  For that reason also, it seems to me that the Tribunal was entitled to proceed in the applicant’s absence. 

5. The Minister has also argued that, even if there had been a jurisdictional error in the Tribunal not affording the applicant a hearing, it would be futile to remit the matter to the Tribunal to hear the matter again. The basis of that submission is that clause 187.233 of Schedule 2 to the Regulations provided as follows:

   (1) The position to which the application relates is the position:

   (a) nominated in an application for approval that seeks to meet the requirements of:

   (i)    subparagraph 5.19(4)(h)(ii); or

   (ii) subregulation 5.19(4) as in force before 1 July 2012; and

   (b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2) The person who will employ the applicant is the person who was the nominator in the application for approval.

   (3)   The Minister has approved the nomination.

   (4)   The nomination has not subsequently been withdrawn.

   (5)   The position is still available to the applicant.

   (6)   The application for the visa is made no more than 6 months after the Minister approved the nomination.

6. The Minister argued that the nomination had to have been a past nomination and the Minister was required to have approved the nomination at the time of decision. Additionally, under subclause 187.233(1)(b), there was a requirement that a declaration had been made as at the time that the application was lodged. That declaration is provided for in paragraph 1114C(3)(d) of the Regulations, which required a declaration by the applicant that the position to which the application related was a position nominated under r.5.19. Also, the nomination had to have been in place and approved and not subsequently withdrawn as at the time of the application.

7. The decision of this court in Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049 said in paragraph 5:

   Importantly, the effect of sub-cl.187.233(1)(b) is that the nominated position can only be the position referred to in the visa application.  Given the importance of that to these proceedings it is necessary to explain the reasons for that in more detail.

8. The court explained the reasons for that elsewhere in the judgment.  I ought to follow that judgment, unless I consider it to be plainly wrong.  I do not consider it to be plainly wrong, and I do follow it. 

9. Even if the Tribunal had been in error in not giving the applicant a hearing, it would be futile to remit the matter to the Tribunal. Any nomination for a position that the applicant could now obtain would not satisfy clause 187.233.

10. The grounds that the applicant himself has raised are unparticularised. I have been unable to detect any irrelevant considerations that the Tribunal took into account. I have been unable to detect any relevant consideration that the Tribunal failed to take into account. I have been unable to find any error of law that the Tribunal has made. More generally, it does not seem to me that there was an unlawful denial of procedural fairness in this matter. It does not seem to me that the Tribunal conducted the proceeding in a manner that was unreasonable, given the terms of the Act, or that it reached conclusions that were unreasonable. I cannot detect any misapplication of the law.

1. All in all it seems to me that there is no option but to dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     29 August 2016