Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 387
•21 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 387
File number(s): ADG 335 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 21 March 2025 Catchwords: MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – allegations of migration fraud – where applicant not ‘identified person’ in nomination – whether the Tribunal failed to comply with s 359A of the Act – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359, 359AA, 359A, 359A(4)(b), 359C, 359C(1), 360(3), 363A, 476
Migration Regulations 1994 (Cth) regs 5.19, 5.19(2)(c), cll 187.233, 187.233(1)(a)(i), 187.311
Cases cited: Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Varsi v Minister for Home Affairs [2019] FCA 504
Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 4 March 2025 Date of hearing: 30 January 2025 Place: Adelaide Applicants: Self-represented Counsel for the First Respondent: Oliver Morris Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 335 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MALKEET SINGH
First Applicant
NEETU
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
21 MARCH 2025
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 GERRARD:
INTRODUCTION
Mr Singh and Ms Neetu (the applicants) seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Regional Employer Nomination (subclass 187) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicants are citizens of India. On 13 March 2019, the applicants applied for the visas through the Direct Entry Stream (Court Book (CB) 20-38). In that visa application, Mr Singh indicated that he had been nominated for the position of Welfare Worker (CB 26, 91). Mr Singh included Ms Neetu as a member of his family unit (CB 24).
The applicants appointed a registered migration agent (the agent) as their authorised recipient in their visa application (CB 25-26).
On 27 April 2019, the Department wrote to the agent inviting them to comment on the fact that Mr Singh did not have a valid nomination as the nominated reference number did not identify him in relation to the position (CB 72-75).
On 25 May 2019, the agent responded via email advising that the nominated employer mistakenly believed that the nomination reference number applied to multiple nominations. He advised that this was in the process of being corrected and requested further time from the Department in light of this (CB 81-83). There is no material before the Court to suggest that any further information was received by the Department.
On 9 July 2019, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that Mr Singh met the approved nomination criterion in accordance with cl 187.233 of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 85-93). That criterion relevantly provides:
(1)The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); 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 made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(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.
On 25 July 2019, the applicants, through the agent, applied to the Tribunal for review of the delegate’s decision (CB 94-96).
On 26 July 2019, the Tribunal wrote to the agent inviting them to provide further information in respect of Mr Singh’s nomination by 9 August 2019. The Tribunal advised that if there is no nomination identifying Mr Singh as the nominee for the position, then the review application must be affirmed (CB 103-106).
On 9 August 2019, the agent provided a response to the Tribunal, advising that he has discussed the issues raised by the Tribunal with the applicants, that the applicants acknowledge the “facts regarding the visa application”, and that they “wish to proceed to a hearing” (CB 117-118).
On 17 August 2020, the Tribunal wrote to the agent, requesting further information in relation to Mr Singh’s nomination (s 359A invitation), as well as whether the applicants were intending to request Ministerial intervention (s 359 invitation) (CB 119-123). The Tribunal advised that if no response was received by 31 August 2020, it may make a decision on the review without taking further steps to obtain the information, and the review applicant would lose any entitlement they might have had under the Act to appear before the Tribunal (CB 122, 131). No response was received by the Tribunal with respect to this invitation (CB 133).
On 21 September 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 130). On 24 September 2020, the Tribunal notified the agent and provided reasons for its decision (CB 124-134).
On 22 October 2020, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visa under review, noting that the applicants had applied for the visas on 13 March 2019. The Tribunal noted that, at the time of application, the visa contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme) (at [2]).
The Tribunal set out that the primary criteria, namely, a nomination, must be satisfied by at least one applicant, and other members of the family unit need satisfy only the secondary criteria (at [3]). The Tribunal confirmed that Mr Singh is seeking the visa to work in the nominated position of Welfare Worker (at [4]).
The Tribunal explained that a delegate of the Minister had refused to grant the visas because Mr Singh did not meet cl 187.233(1)(a)(i) of Schedule 2 to the Regulations, as the position to which the nomination related did not identify Mr Singh (at [5]). As such, the Tribunal identified that the issue before it was whether Mr Singh had been identified in a nomination relating to the position (at [11]).
The Tribunal then set out the requirements of cl 187.233 in that regard, noting that that clause requires the position to which the application relates to be the subject of an application for approval of a nomination in the Direct Entry Stream, one that was the subject of the declaration made in the visa application, and must identify the applicant in relation to the position (at [12]). It also noted that this criterion requires that (at [13]):
•the person who will employ the applicant is the person who made nomination;
•the nomination has been approved and has not been subsequently withdrawn;
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information;
•the position 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.
The Tribunal recounted that, on 17 August 2020, it wrote to the applicants’ migration agent pursuant to ss 359 and 359A of the Act, inviting the applicants to provide information on whether they wished to seek Ministerial intervention, and to comment on information that it considered would be part of the reason for affirming the decision under review (at [6]). The Tribunal set out an excerpt of its invitation in this regard (at [14]). The Tribunal advised in this correspondence that if the information or comments were not provided in writing by 31 August 2020 (at [15]), it may make a decision on the review without taking further steps to obtain the information, and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal (at [7]).
The Tribunal confirmed that neither the applicants nor their agent had provided information in response to this invitation and no extension had been granted, so the applicants were therefore not entitled to appear before the Tribunal by virtue of s 359C and 360(3) of the Act (at [8]). The Tribunal confirmed that it proceeded to make a decision without taking further steps to obtain information (at [8]), relying only on information already before it, including a response to the delegate stating that the sponsor mistakenly believed that the nomination applied to multiple nominations and accepted that the nomination details were submitted in error (at [17]).
The Tribunal agreed with the delegate’s assessment that Mr Singh was not identified in relation to the position (at [18]). It found that Mr Singh did not meet cl 187.233(1)(a)(i) (at [18]), and consequently, Ms Neetu did not meet cl 187.311 which requires that she is a member of the family unit of a person who meets the primary criterion required for the grant of a Regional Employer Nomination visa (at [21]).
The Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [22]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 22 October 2020 contains the following grounds of review (without alteration):
1.That the Tribunal, has committed a jurisdictional error as the Tribunal failed to exercise its jurisdiction:
It was error for the Tribunal to assess the application without allowing applicant to present their arguments. The tribunal failed to consider the true and correct interpretation of regulation 5.19 of the Migration Regulations as it applied to the religious workers. Clause 187.233 was satisfied as the nomination earlier approved could be used for another nominee within one year of the approval of the nomination.
2.That the Tribunal, has committed a jurisdictional error as the Tribunal failed to exercise its jurisdiction:
It was error for the Tribunal to assess the application without allowing applicant to present their arguments. The tribunal has mentioned in its order that “On 17 August 2020 the Tribunal wrote to the review applicant pursuant to s.359 and s.359A of the Act, inviting the review applicant to provide information if they were wishing to seek Ministerial Intervention, to assist the Tribunal and comments on information that it considered would be part of the reason for affirming the decision under review in writing”, in fact, the tribunal was under an obligation as per section 359A of the Migration Act to ensure that
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
As would be clear from the above, the tribunal did not provide clear particulars of any information that the tribunal thought would be reason for affirming the decision of the DHA. The tribunal also did not explain what Ministerial Intervention provision was and what it entailed.
3.The Tribunal committed a jurisdictional error by failing to comply with s.359AA of the Migration Act 1958. (the Act). As required by law under s359AA (1)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii) invite the applicant to comment on or respond to it; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information–adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.
4.That the second respondent committed a jurisdictional error as it failed to consider that the DHA has framed official policy guidelines known as PAM’s (Procedure Advice Manual) for interpreting different provisions of the legislation. The issue which is the bone of contention in the present matter has been explained in the PAMS and the true extract is reproduced below.
Nomination relates to the nominated position
Regulations 5.19(3) and 5.19(4) relate to assessment of the position specified in the nomination, not assessment of the nominee. The nominee is assessed against the requirements of relevant visa criteria (subclass 186 for ENS and subclass 187 for RSMS) on the basis of their visa application. Nomination and visa applications are separate decisions.
For the purpose of a Temporary Residence Transition stream nomination, information about the nominee and any dependent applicants must be provided by the nomination employer at the time of lodgment. For the purpose of a Direct Entry stream nomination, information about the prospective visa applicant is not required at the time of nomination lodgment but can be provided if available.
The present visa application for grant of SC 187 visa was lodged under the Direct Entry Stream therefore the identification of the visa applicant was not required at the nomination stage. The policy further clarifies the issue and the explanation provided clinches the issue in favour of the applicant. The policy states :
Identifying the nominee and dependants
Regulations 5.19(3) and 5.19(4), and Schedule 2
clauses 186.233(1) and 187.233(1) refer.
For a Temporary Residence Transition stream nomination, for regulation 5.19(3)(a)(ii) to be satisfied, the nominee must be identified when the application is made.
For a Direct Entry nomination, the nominee can be identified either before, or at the time, the visa application is made. Specifying the nominee in the nomination confirms that the nominee is the same person as the visa applicant who identifies the nominated position in the visa application when making the declaration required
by 186.233(1)(b) or 187.233(1)(b).
Dependent applicants must be identified in the nomination before the corresponding visa application is decided. The Regulations do not prevent dependent applicants from being identified (included) in the nomination after the nomination has been approved.
The tribunal fell in error by not considering that in fact, for a direct entry nomination application, the nominee could be identified either before, or at the time, the visa application was made. The tribunal fell in error by holding that the applicant was not identified as a nominee in the nomination application.
6.That the tribunal asked itself a completely wrong question as to whether the nominee for a direct entry stream was to be identified at the nomination stage?
The Tribunal committed a jurisdictional error as it erred in concluding that the review applicant was not identified in the nomination application and was therefore wrong in thinking that it was the requirement for the direct entry scheme whereas it was a mandatory requirement for the Temporary Residence Transition Entry stream.
7.That the tribunal committed a jurisdictional error by not giving an opportunity to the applicant to explain that the migration agent engaged by him had in fact not even informed him about the letter of the tribunal dated the 17th of August 2020 and had played a fraud with him. The applicant did not know the implications and requirements of law and therefore paid a huge fee to the agent and completely trusted him. However, the agent misrepresented to the applicant and ensured him that he was eligible to the hearing in the tribunal as he fulfilled all the requirements of the Migration Act and the regulations. The applicant is lodging a complaint against the agent before the regulatory authority MARA. The famous formulation from the High Court (in the case of SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 (2 August 2007) that “fraud is capable of unraveling everything” should have proved to be the salvation of the applicant in this case. Also, Recently, the Federal Court has delivered two judgments which squarely cover the present matter in favour of the applicant. The Federal Court ruled that the Federal Circuit Court did not, in assessing the validity of the appellant's visa application, consider how, if at all, the operation of ss 45 to 48 and 98 of the Migration Act 1958 (Cth) might be affected by the conduct of the appellant's migration agent: see Singh v Minister for Immigration and Border Protection [20161 FCAFC 141 at [52], and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 at [50].
8.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
The applicants filed an affidavit with that judicial review application which annexed a copy of the Tribunal’s decision.
The applicants appeared before the Court on 18 September 2024 and 30 January 2025, respectively, without legal representation. Mr Singh confirmed that he had received copies of the Court Book and the Minister’s written submissions. At the initial hearing, the Court raised with the applicants that the application alleged fraud on the part of the migration agent. In this respect, the Court was guided by the observations in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 and explained to Mr Singh that if he wished to rely upon his assertions in respect of his agent’s conduct, he would need to provide evidence in support of those assertions. Mr Singh was advised that this should be by way of affidavit, but if he wished, he would be given the opportunity to give evidence from the witness box and, if he elected to do so, he may be subject to cross-examination from counsel for the Minister. The hearing was adjourned to allow Mr Singh time to file any further material he wished to rely upon and to attempt to secure legal representation. In this respect, the Court issued a pro bono referral certificate on behalf of the applicants, however any and all attempts to engage legal representation were unsuccessful.
The materials before the Court include the application for judicial review filed on 22 October 2020, supporting affidavit affirmed by Mr Singh on 22 October 2020 and filed alongside the judicial review application, a Court Book numbering 134 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 30 July 2024 and 2 December 2024. Following the hearing on 30 January 2025, Mr Singh was granted leave to file a further affidavit annexing correspondence with his migration agent, which he did so on 14 February 2025. The Minister filed further submissions in response to Mr Singh’s affidavit on 21 February 2025. Mr Singh then sought leave of the Court to rely upon submissions in reply, filed on 4 March 2025.
The applicants were not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 30 January 2025, the applicants were invited to tell the Court what they believed to be wrong with the Tribunal’s decision and/or procedure. In accordance with the approach identified at [25] of these reasons, Mr Singh also gave evidence in respect of his allegations against his migration agent. He was not cross-examined.
In line with its usual approach, the Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicants that this was not an exhaustive list and they should attempt to tell the Court why they say the Tribunal had fallen into error.
CONSIDERATION
As outlined above, there are seven grounds of review advanced in these proceedings, noting that the grounds are numbered one to four, and six to eight. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158). In these circumstances particularly, the Court gave the applicants an opportunity to say what was wrong with the Tribunal’s decision.
Against this background, Mr Singh reiterated that he had been denied an opportunity to present his arguments before the Tribunal because of the misconduct and alleged fraud by his migration agent. When asked by the Court what he would have said to the Tribunal if he had appeared before it, Mr Singh said the only argument he could have made was that he would go back to re-apply for the nomination. He did not otherwise expand on his written grounds in oral submissions, save for repeating that he was not aware of the Tribunal correspondence until he received a copy of the Court Book, and that he would have responded to the Tribunal if his agent had brought it to his attention.
At the hearing of this matter, it was clear to the Court that the ground asserting fraud by the migration agent is the aspect for which Mr Singh feels most aggrieved, and it is not difficult to ascertain why. For that reason, the Court will first address the ground which concerns the alleged fraud.
Ground seven
Ground seven alleges that the Tribunal made a jurisdictional error by virtue of his migration agent’s alleged fraudulent conduct. Mr Singh particularised in the ground sought that his agent had not informed him of the Tribunal’s correspondence dated 17 August 2020 and had misrepresented to him that he was eligible to be heard by the Tribunal as he fulfilled all of the legislative requirements. The alleged failure of the agent to advise the applicants of the correspondence received from the Tribunal denied them the opportunity to file additional material and appear before the Tribunal to state their case.
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) (citing Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112), it was explained that fraud is not limited to that of a decision-maker, party or a party’s representative, but the decision or review in question must be actually affected by the fraudulent conduct to constitute a jurisdictional error (at [24]).
In the hearing of this matter on 7 February 2025, the Court explained to the applicants that what needs to be established is that the agent committed a fraud upon the Tribunal such that the Tribunal effectively could not carry out its task. The Court asked Mr Singh what the Tribunal was denied hearing from him that could have changed its decision. In response, Mr Singh submitted that, if given an opportunity to comment or respond to the Tribunal, he would have gone back to re-apply for the nomination.
In the course of his submissions to the Court, Mr Singh referred to unanswered text messages sent to the agent on his mobile telephone. The Court allowed him an opportunity to file an affidavit annexing those messages. In the subsequent affidavit filed by Mr Singh on 14 February 2025, Mr Singh made the following claims perpetrated by the agent, summarised by the Minister in written submissions filed on 21 February 2025 as follows (replicated without alteration, save for anonymisation of the agent’s name):
(a)Mr Singh never had a ‘retainer’ agreement with the agent, but he did provide the agent with all the relevant paperwork and his credit and debit card details. The agent then lodged the visa application for Mr Singh and promised to keep Mr Singh apprised of any updates. He did not explain to Mr Singh how the visa application process operated.
(b)The agent never did inform Mr Singh about any updates to his application, despite text message requests from Mr Singh. Indeed, the first Mr Singh learned about the refusal of his application was when his Medicare card was cancelled. When confronted, the agent informed Mr Singh that he was unable to access Mr Singh’s visa outcome decision because his computer had been ‘hacked’.
(c)It was only after reviewing the Department’s decision that Mr Singh realised that the agent had made a mistake by using an incorrect reference number for Mr Singh’s application. The agent explained that ‘he thought religious organizations could use one nomination for multiple applications’. The agent also advised Mr Singh to lodge an application to the Tribunal.
(d)After Mr Singh lodged his application in the Tribunal, the agent ‘went into hibernation’ and never informed Mr Singh of any updates to his application. The agent did not even inform Mr Singh about the decision of the Tribunal to affirm the refusal of his application. Mr Singh first learned of the Tribunal’s decision in early October, when he attended the Tribunal himself to obtain a copy.
(e)Mr Singh sent text messages to the agent on 22 May 2019, 22 July 2019, 31 July 2019, 2 October 2020, and 15 October 2020. The agent did not respond to any of these text messages.
(f)Mr Singh also emailed the agent on 20 July 2019, 22 July 2019, and 30 September 2020. The agent did not respond to these emails.
(g)The agent first forwarded Mr Singh a copy of the Tribunal’s correspondence of 17 August 2020 on 16 October 2020 (after the Tribunal had already affirmed the decision to refuse his application).
(h)The agent charged Mr Singh $2,500.00 on 28 March 2019, a total of $2,787.00 on 23 July 2019, and $4,000.00 on 18 March 2019.
The Court accepts as accurate and adopts the Minister’s summary of the content of Mr Singh’s affidavit. The affidavit builds upon the evidence given by Mr Singh at the hearing. The Court finds that Mr Singh gave truthful evidence and notes that the Minister did not contest any part of the applicants’ evidence in respect of this issue.
In written submissions, counsel for the Minister set out that Mr Singh’s evidence suggested the agent acted on an inaccurate understanding of visa subclass 187 in respect of the re-use of nomination numbers, failed to pass on critical information (namely, the Tribunal’s letter dated 17 August 2020), and generally failed to communicate effectively with the applicants. The Minister acknowledged that, whilst the agent had not been afforded an opportunity to respond to such allegations, nonetheless, the Minister detailed Mr Singh’s experience with his agent as a “regrettable one”.
Notwithstanding these allegations against the agent, the Minister submitted that, in order to establish third-party fraud, Mr Singh would be required to demonstrate that (citing Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at 24-25 per Gilmour and Mortimer JJ):
(a)The third party did in fact perpetuate a fraud;
(b)The applicant was neither complicit in, nor indifferent to, perpetuating that fraud; and
(c)The fraud adversely affected the decision-maker’s statutory functions and obligations, or impeded the processes prescribed by the Act.
The Minister submitted that Mr Singh’s affidavit did not establish any of these matters, in circumstances where:
(a)There is no evidence to suggest that the agent hid correspondence from the applicants to further some dishonest end, and in fact, the evidence indicates that the agent was generally remiss in communications with Mr Singh;
(b)There is no evidence that the agent intentionally misled the Tribunal about the applicants’ willingness to appear at a hearing, particularly in circumstances where correspondence from the agent conveys Mr Singh’s willingness to proceed with a hearing; and
(c)Mr Singh’s own evidence is that his agent informed him he had mistakenly acted on the belief that religious organisations could re-use nomination reference numbers.
Whilst counsel for the Minister appropriately expressed sympathy for Mr Singh’s deeply unfortunate experience with his agent, the Minister submitted that Mr Singh’s further affidavit does not rise to the level so as to support a finding of fraud as explained by the High Court in SZFDE.
Counsel for the Minister further argued in oral submissions that fraud cannot be extended to refer to “mistakes, negligence, bad practice, strategic decisions [or] foolish decisions”, in that it must refer to conduct that is deliberate and fraudulent in the ordinary sense. Mr Morris also submitted that the fraud must be practised upon the Tribunal, not just the applicants themselves, highlighting that this can only be made out if the reason that the applicant did not have that information was as a consequence of some deliberate deceit or ordinary fraud, and not if it was a result of a mistake.
The Court agrees with the Minister’s submissions in this regard. The Court readily accepts that the applicants have been placed in unfortunate circumstances which arise through no fault of their own. However, there is no sufficient basis to establish fraud where there is no evidence to suggest intentionally dishonest or misleading conduct on behalf of the agent, and in fact, where the agent himself admitted in writing to acting on a mistaken belief in respect of the nomination number. The Court finds that the evidence is indicative of mistakes, bad practice and a lack of diligence, but not of dishonesty or deception.
Mr Singh filed written submissions on 4 March 2025 without leave of the Court. Nevertheless, the Court granted leave for the applicant to rely upon those submissions and has had regard to them. Those submissions go well beyond the evidence given by Mr Singh at the hearing and accuse the agent of “act[ing] fraudulently, only with a view to extracting money out of the applicant at every step”. Mr Singh alleges that the agent engaged in a pattern of deception and fraud, and also unlawfully collected a sum of $4,000 which should have been borne by the sponsoring employer. The Court understands Mr Singh’s frustrations but is not prepared to make findings in respect of those aspects of the submissions which stray further than the evidence.
The Court is acutely aware that the agent has not been afforded an opportunity to defend his conduct in these proceedings. Nevertheless, the Court accepts the applicant’s evidence that the agent did not advise him of the correspondence from the Tribunal. Having regard to the evidence before it, the Court has concerns with the following matters:
(a)The agent prepared an application for the visa which included an invalid nomination which related to a different identified person and a different position;
(b)The agent accepted that the nomination details were submitted in error (CB 83) and that, accordingly, the applicants could not meet the criteria for the visa but nevertheless filed an application for review which the agent should have been aware had no prospects of a successful outcome;
(c)The agent received correspondence from the Tribunal on 26 July 2019 inviting the applicants to respond to information that there appeared to be no valid nomination and hence the application could not succeed. The agent acknowledged receipt of this correspondence and indicated that he had discussed this with the applicants. However, the Court accepts the applicants’ evidence that the agent did not advise them of this correspondence;
(d)The agent received a further invitation to comment from the Tribunal to which he did not respond at all. The Court accepts the applicants’ evidence that the agent did not advise them of this correspondence.
The Court finds that the conduct of the agent was deeply unsatisfactory. A visa application was lodged with a consequential error which appears to have been accepted by the agent to be the result of a lack of due diligence; an application was filed with the Tribunal which the agent must have known had no prospect of success given the absence of a valid nomination; and important correspondence was not drawn to the applicant’s attention which had the consequence of the applicants losing their right to appear before the Tribunal. The applicants are entitled to feel aggrieved at what appears to be poor service, lack of diligence, incompetence and a failure by the agent to properly advise and, indeed, communicate.
The agent, as observed, has not had the opportunity to respond and the Court is cautious of making further findings in this respect. Nevertheless, the applicants have not been well served throughout the entirety of this process and their former agent bears at least some responsibility. However, the agent’s conduct, unsatisfactory as it was, does not establish third-party fraud. There is no evidence that the agent engaged in any kind of deceptive conduct in respect of the Department or the Tribunal. Indeed, the agent conceded that an error had been made in respect of the nomination and advised the Tribunal, at least initially, that the applicants wished to proceed to a hearing. This is not conduct which aligns with an intention to deceive the Tribunal. Rather, it speaks to a lack of diligence and engagement. As correctly identified by the Minister, mistakes, negligence, ignorance or poor forensic choices are insufficient in themselves to establish third-party fraud.
Importantly, the agent’s conduct did not have the effect of stultifying the Tribunal’s process. In this matter, the Court accepts that the Tribunal made the only decision open to it in circumstances where Mr Singh did not have an approved nomination. Unfortunately for the applicants, the die was cast when the application for the visa was lodged with an invalid nomination. The consequence of the invalid nomination is that the applicants could not meet the criteria for the visa they sought and the Tribunal could not have made any decision other than to affirm the initial refusal decision. There was no evidence the applicants could have provided which would have led to a different outcome, and there was nothing the applicants could have said to the Tribunal if they had been given an opportunity to give evidence at a hearing. The fundamental problem for the applicants is that the invalid nomination had the consequence that they could never meet the criteria for the visa.
Regrettably for the applicants, no jurisdictional error arises in respect of ground seven. Nevertheless, the applicants should consider bringing their concerns in respect of the agent’s service to the attention of the Migration Agents Registration Authority.
Grounds one, four and six
Grounds one, four and six allege that the Tribunal made a jurisdictional error by finding that Mr Singh was not identified in relation to the position associated with the related nomination reference number.
By ground one, the applicants allege that the Tribunal misinterpreted reg 5.19 of the Regulations in determining whether Mr Singh met the requirements of cl 187.233 for the grant of the visa and should not have assessed the application without allowing them to present their arguments; by ground four, the applicants allege that the Tribunal failed to consider the Procedures Advice Manual (PAM 3) in its application of those provisions; and by ground six, the applicants allege that the Tribunal asked itself the wrong questions as to whether Mr Singh was required to be identified in the nomination. The Minister submitted that these grounds are misconceived and relate to earlier requirements and policy with respect to the grant of that visa.
The requirements for the different entry streams are set out in the various subparagraphs of reg 5.19. For the purpose of the applicants’ application, the relevant parts of that regulation are as follows:
Application
(1) A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(b) identify the position; and
(c) identify a person (the identified person) in relation to the position; and
(d) identify an occupation in relation to the position; and
(e) identify the subclass and stream to which the nomination relates, which must be one of the following:
(i) a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii) a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii) a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv) Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v) a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f) be accompanied by the fee mentioned in regulation 5.37; and
(fa) be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb) identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
Approval of nomination
(3) The Minister must, in writing:
(a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.
Requirements for approval—general
(4) The requirements to be met for the nomination to be approved are as follows:
(a) the application is made in accordance with subregulation (2);
(b) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c) if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i) hold a licence of a particular kind; or
(ii) hold registration of a particular kind; or
(iii) be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da) any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e) if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f) if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g) if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9) If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a) the nominator is actively and lawfully operating a business in Australia;
(b) if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e) the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f) the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g) the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h) the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i) paragraph 2.72(15)(a) did not apply; and
(ii) references to the nominee were references to the identified person; and
(iii) references to the person were references to the nominator;
(i) either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information;
(j) the requirements set out in subregulation (10) or (12) are met.
…
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12) The requirements of this subregulation are as follows:
(a) the position is located at a place in regional Australia;
(b) the business operated by the nominator is located at that place;
(c) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d) the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i) made under subregulation (13); and
(ii) as in force at the time the application is made;
(e) the occupation applies to the identified person in accordance with that instrument;
(f) the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i) whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii) whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii) whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g) the body must:
(i) be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii) be located in the State or Territory in which the position is located; and
(iii) have responsibility for the local area in which the position is located.
(13) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a) the nominator;
(b) the identified person;
(c) the occupation;
(d) the position in which the identified person is to work;
(e) the circumstances in which the occupation is undertaken;
(f) the circumstances in which the person is to be employed in the position.
…
The Minister submitted that the core issue for the Tribunal was whether Mr Singh satisfied cl 187.233 of the Regulations. The requirement in cl 187.233(1)(a)(i) that the nomination application identify the person in relation to that nomination is echoed in reg 5.19(2)(c). The Minister submitted that, although the applicant is correct that the legislative requirements under reg 5.19 are, on one view, less onerous for the Direct Entry stream than for the Temporary Residence Transition stream, such distinction does not obviate the general requirement for all subclass 187 visas that the visa applicant be the person identified in the nomination application.
The Court agrees with the Minister’s submission that ground one is misconceived. It is clear that the Tribunal considered the application against the requirements in reg 5.19 for the direct entry stream, and in any event, it is immaterial because Mr Singh failed to meet the requirement of cl 187.233(1)(a)(i). As the requirements of cl 187.233 are cumulative and the first requirement of cl 187.233(1)(a)(i) had not been fulfilled, the Tribunal was not obliged to proceed to consider the further requirements of that regulation.
As submitted by the Minister, cl 187.233 imposes a single requirement that is either fulfilled or not fulfilled at the time of the decision (Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [88] (Singh)). That legislative scheme provides for a “once-off” process with respect to the consideration of an application against a specific employer nomination and a specific approval of that nomination (see Singh at [90]). In circumstances where the nomination did not identify the applicant in relation to the position, as required by reg 5.19(2)(c) of the Regulations, the applicant could never satisfy cl 187.233. The Court agrees with the Minister that the Tribunal “could not do anything other than dismiss the applicant’s application, which depended upon” the approval of the nomination (Varsi v Minister for Home Affairs [2019] FCA 504 at [21] per Markovic J).
To the extent that the applicants argue that the Tribunal should not have assessed this without having heard from them, this was the consequence of the failure to provide a response to the Tribunal’s request for information. That this resulted from the agent’s conduct discussed above does not detract from the fact that the applicants could not have said anything at the hearing which could have materially affected the Tribunal’s decision.
With respect to ground four, the applicants relied upon the extract of PAM 3 set out in ground four of their application. Mr Morris, as counsel for the Minister, contended in oral submissions that “official government policy is not and cannot be a legitimate source of interpretive assistance”. Importantly, as submitted by the Minister, PAM 3 must be read in light of cl 187.233, not the other way around. It is a guide to decision-making only and does not have the legislative force of cl 187.233 in the Regulations. As observed in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45]:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs[2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs[2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
The same view was taken by White J in Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397 at [20]-[21]. It is clear from these authorities that the policy in PAM 3 does not bind the Tribunal in the manner suggested by the applicant.
The Court agrees that ground four must fail for the same reason as ground one. The requirements for the visa application are set out in cl 187.233, whereas PAM 3 and reg 5.19 relate to the nomination process. As such, the applicants’ reliance on the policy is misplaced. In any event, the Tribunal cannot have failed to consider PAM 3 (or reg 5.19) with respect to Mr Singh’s nomination in circumstances where that nomination related to a different person and therefore could not meet the criteria in cl 187.233(1)(a)(i).
Similarly, the Minister submitted that ground six must also fail in circumstances where the applicant cannot satisfy cl 187.233 because the nomination related to a different person. The nomination requirements for the direct entry stream as opposed to the temporary residence transition stream are irrelevant in circumstances where it is accepted that neither of the applicants was the person identified in the nomination application.
The Court agrees that the Tribunal made no error in its determination of whether the applicants met the criteria for the grant of the visas. It is accepted that the nomination identified a person other than Mr Singh and Ms Neetu. Any further consideration of the criteria in cl 187.233 is irrelevant in circumstances where the applicants do not meet cl 187.233(1)(a)(i).
The Court finds that no jurisdictional error arises with respect to the applicant’s nomination as alleged in grounds one, four and six.
Grounds two and three
Grounds two and three allege that the Tribunal made a jurisdictional error by failing to comply with ss 359AA and 359A of the Act, respectively.
Given the applicants did not appear and were not presented with an opportunity to appear before the Tribunal, the reference to s 359AA in ground three is taken to be a reference to s 359A for the purpose of the applicants’ grounds. The applicants therefore submitted that the Tribunal failed to provide clear particulars of any information sought under s 359A, and that the Tribunal did not invite the applicants to comment on or respond to this information. In oral submissions, Mr Singh submitted that his migration agent never made him aware of such an invitation and that he did not become aware of it until he was served with the Court Book by the Minister’s lawyers in the course of these proceedings. This claim essentially overlaps with ground seven addressed earlier in these reasons.
The Minister submitted that grounds two and three are also misconceived. By way of letter dated 17 August 2020, the Tribunal issued a s 359A invitation inviting the applicants to comment on certain information before it, namely that the nomination did not identify Mr Singh as the nominee in relation to that position, but the Tribunal did not receive a response to that letter (see [11] of these reasons).
The Minister submitted that the Tribunal was not even obliged to invite the applicants to comment on such information as that particular information fell within s 359A(4)(b), being information that was contained within the delegate’s decision and was therefore provided to the Tribunal by the applicants along with the application for review. In any event, the Minister submitted that no jurisdictional error arises from the Tribunal putting information to the applicants for comment in circumstances where it was not required to do so (SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ).
In oral submissions, counsel for the Minister reiterated that there was no error in the Tribunal inviting the applicants to comment on information where there was no requirement for it do so, describing the Tribunal’s invitation as “an abundance of caution type of request”. The Court agrees with the Minister’s submission in that respect, further noting that the Tribunal’s invitation and the applicants’ lack of response do not appear to have been determinative to the Tribunal’s decision.
Although not explicitly pressed by the applicants, the Minister submitted that the Tribunal was also correct to find that the applicants had lost their entitlement to a hearing due to the existence of a s 359 invitation within that same letter to which the applicants did not respond. Subsection 359C(1) provides that, if an applicant is invited in writing to give information under s 359 but fails to do so, the Tribunal may proceed to make a decision on the review without taking any further action to obtain that information. Moreover, the combined effect of ss 360(3) and 363A is that the Tribunal had no power to permit the applicants to appear at a hearing (Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40). The Minister therefore submitted that the Tribunal did not err by not allowing the applicants to present evidence at a hearing as alleged in ground two.
To the extent that the applicants allege the Tribunal had erred by not explaining what was meant by ‘Ministerial Intervention’, the Minister submitted that the Tribunal was not under any obligation to do so, particularly in circumstances where the applicants were represented by a registered migration agent. Whether or not the Tribunal decided to independently refer the matter for the Minister to consider exercising any of his non-compellable powers clearly had no bearing on the task before the Tribunal in respect of whether the applicants met the criteria for the visa.
In oral submissions, counsel for the Minister submitted that the Tribunal did not fail to particularise the information it sought from the applicants in the 17 August 2020 invitation, and even if there was such a failure to particularise, or if the information sought was found to not be relevant, it would not rise to the level of jurisdictional error alleged in ground two.
The Court agrees with the Minister’s submissions. Mr Singh had been invited to provide information to the Tribunal in order to assist it in determining whether to make a referral to the Minister for intervention. Clearly though, any information the applicants may have provided could not lead to an error in the Tribunal decision itself. In any event, the applicants did not respond to that invitation.
No jurisdictional error arises in respect of grounds two and three.
Ground eight
Ground eight alleges that the Tribunal had no jurisdiction to make a decision in circumstances where it did not reach “reasonable satisfaction”.
The Minister submitted that ground eight should be dismissed on the basis that it is a broad allegation of error and not sufficiently particularised (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] per Reeves J). The Minister submitted that this ground must fail and that the Court need not further interrogate what might be meant in circumstances where the ground does not allege a species of jurisdictional error.
The Court accepts the Minister’s submission in that respect, noting that this ground takes the form of a catch-all conclusion, the kind of which is often seen in this Court from unrepresented applicants, rather than a particularised ground in and of itself. The applicants were invited to clarify this ground at the hearing but did not.
In light of this, no jurisdictional error arises in respect of ground eight.
Further issue raised by the Minister’s counsel as model litigant
The Court asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. Mr Morris, as counsel for the Minister, raised the question of whether the Tribunal was correct to apply s 359C of the Act, such that the applicants lost their right to a hearing in circumstances where the s 359A invitation was not strictly required by the terms of s 359A(4)(b), and further, if it is accepted that the s 359 invitation was also not required because the information sought was not relevant to the review.
Mr Morris raised this question for the Court with the caveat that any such error by the Tribunal would fail to be material where there was nothing the applicants could have put to the Tribunal at a hearing that would have changed the ultimate outcome, particularly in circumstances where it was accepted that the nomination did not identify either of the applicants.
Counsel for the Minister submitted it was a matter of whether the Tribunal acted in good faith in its purported exercise of ss 359 and 359A, citing Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11 at [42] per Jagot J. Mr Morris submitted that it was clear from the terms of the letter that the Tribunal understood itself to be acting pursuant to those sections. Mr Morris submitted that the Tribunal’s warning in the letter that the applicants would lose their entitlement to a hearing if they do not respond is a plain reference to s 359C.
Mr Morris summarised the principle of ‘good faith’ for the applicants in this context, that is, if the Tribunal writes to the applicants in a way that is irrational or not in good faith, then any consequences that would usually flow from that, namely, that they would lose their entitlement to a hearing, do not apply. The Minister submitted that the Tribunal did write to the applicants in good faith and it had a rational basis for doing so.
Counsel for the Minister submitted that the applicants may take the view that there was not a rational basis for writing to them in this way and that they therefore should not have lost their right to appear at a hearing. The Minister’s position in that event would be that, even if the applicants had been able to attend a hearing, the Tribunal was still bound to apply the requirements of cl 187.233 and could not have reached any other decision.
The Court drew Mr Morris’ attention to the fact that the agent’s response to the purported s 359A letter expressly stated the applicants’ desire to attend a hearing. Mr Morris conceded that in circumstances where that letter was not required by s 359A, then s 359C would have no force and there would be an error in failing to invite the applicants to a hearing, regardless of their expressed desire, but that that error would not be material.
The Court agrees with this submission. Even if the applicants were granted the opportunity to attend a hearing, the Tribunal would still be required to apply the criteria in cl 187.233. Since it is accepted that the applicants do not meet the requirements of cl 187.233(1)(a)(i), the Tribunal could not have made any other decision than to affirm the delegate’s decision not to grant the visas. In that respect, the Tribunal’s exercise of s 359C in circumstances where s 359A did not have any effect was not a material error.
The Court is satisfied that, even adopting the broad approach referred to in [29] of these reasons, no jurisdictional error is apparent.
MINISTERIAL INTERVENTION
As observed, the applicants have been ill-served throughout this process. Through the incompetence of others and no fault of their own, a flawed application for a visa had been lodged and they were unwisely encouraged to engage in a doomed application for review of which they were ultimately denied any chance of appearing. That is a deeply unsatisfactory situation.
The Court is unaware whether the Mr Singh’s erstwhile sponsor continues to support sponsorship, this time with a valid nomination, and whether a further application could be made. Nevertheless, the applicants may wish to seek advice in pursuing Ministerial intervention. Of course, the outcome of any such request would be a matter for the Minister.
The Court also acknowledges the tactful and respectful way in which Mr Morris made his submissions on behalf of the Minister. The Court observes that this is an appropriate advocacy style for matters such as this that other counsel would do well to emulate.
CONCLUSION
The application for judicial review, supporting affidavits and additional submissions advanced by the applicants at, and following, the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 21 March 2025
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