Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 18
•18 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 18
File number: MLG 940 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 18 January 2024 Catchwords: MIGRATION – Employer Nomination (Subclass 186) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to provide a hearing to the applicants – whether the Tribunal failed to consider relevant documents – whether the conduct of the applicants’ representative amounted to a fraud on the Tribunal – whether the first applicant should have been given additional time to find a new sponsor – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – jurisdictional error established – whether the Court should exercise its discretion and refuse to grant relief on the basis that no useful result could ensue – relief refused – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 359A, 359B, 359C, 360, 363A, 379A, 379G, 424A, 476 and Part 5
Migration Regulations 1994 (Cth), reg 4.17 and Part 186, cll 186.223 & 186.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 8 November 2023 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms A Zinn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 940 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARVIR SINGH
First Applicant
MANENDER KAUR HARBHAJAN
Second Applicant
GURMEHAK KAUR KHINDA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 JANUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first applicant is a citizen of India (Court Book (“CB”) 1-2 & 55-56). His wife, the second applicant, is a citizen of Italy (CB 3-4 & 66). The third applicant is their daughter (CB 95-97). She was born in New South Wales in 2017 (CB 99).
On 30 June 2016, the first applicant applied for an Employer Nomination (Class EN) (Subclass 186) visas (the “visa”) in the Temporary Residence Transition stream (CB 1-15). His wife (the second applicant) was included in that visa application as a member of the first applicant’s family unit (CB 3-5). In that application, the first applicant nominated the position of “Customer Service Manager” and identified Sardar Pty Ltd (the “sponsor”) as his employer (CB 9). The first applicant also appointed a migration agent to assist him with his visa application (the “first representative”) (CB 6).
On 27 October 2016, the first and second applicants notified the then Department of Immigration and Border Protection (the “Department”) that they had appointed a new migration agent (the “second representative”) to assist them with their visa application (CB 75-78).
On 20 January 2017, the Department requested more information from the first applicant (through the second representative and via email) in relation to the visa application (CB 81-89).
On 14 November 2017, the first applicant was notified by the Department (through the second representative and via email) that his sponsor’s nomination application had been refused. He was invited to comment on that information or withdraw his visa application (CB 90-94). He was also advised that if he did not respond to the invitation to comment or withdraw his visa application within 28 days, his visa application would be refused (CB 91).
On 11 December 2017, the first and second applicants completed a “Notification of changes in circumstances” form and asked the Department to add their “newborn daughter” (the third applicant) to their visa application (CB 95-99).
On 15 December 2017, a delegate of the first respondent (the “Minister”) refused to grant the first and second applicants the visas (CB 106-109). The delegate was not satisfied that the first applicant met cl 186.223(2) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because he was not the subject of an approved nomination (CB 107). As such, it was also noted that the second applicant failed to satisfy cl 186.311 in Schedule 2 of the Regulations (CB 108-109).
On 5 January 2018, a delegate of the Minister refused to grant the third applicant the visa (CB 115-119). The delegate found that the third applicant had made a combined application with her parents pursuant to reg 2.08 of the Regulations (CB 116-117). The delegate also found that the third applicant did not meet cl 186.311 in Schedule 2 of the Regulations because she was not a member of the family unit of a person who held (or satisfied the criteria for) a Subclass 186 visa (CB 118).
Later that same day (on 5 January 2018), the first applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 120-121). He appointed a new registered migration agent (the “third representative”) to assist him with his Tribunal review (CB 121).
On 10 January 2018, the third representative wrote to the Tribunal (via email) and requested that the second and third applicants be added to the first applicant’s review application (CB 130).
On 5 December 2018, the Tribunal wrote to the applicants (through the third representative) pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”) and requested that they provide the Tribunal with additional information in relation to their review application (CB 131-134). Relevantly, that letter stated (CB 133):
It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved.
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 19 December 2018.
No response was provided by or on behalf of the applicants (CB 150).
On 4 February 2019, the Tribunal invited the applicants (via email and through the third representative) to attend a hearing before it (by telephone) at 9.30am (NSW time) on 28 February 2019 (CB 135-142). The letter also invited the applicants to provide any material that the applicants wished to rely upon. Relevantly, the invitation letter stated (CB 137-138):
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
Any material or evidence that you wish to rely upon at hearing should be provided to us at least 7 days before the hearing date.
Neither the applicants nor the third representative attended the hearing on 28 February 2019 and no further material was provided by or on behalf of the applicants (CB 143-145).
The Tribunal notes indicate that attempts were made to contact the applicants (by telephone) on five occasions between 9.24am and 10.53am. However, no response was forthcoming (CB 143 & 150).
On 1 March 2019, the Tribunal affirmed the delegate’s decisions refusing to grant the applicants the visas (CB 149-153). The Tribunal ultimately determined that, because the first applicant was not the subject of an approved nomination, he could not be granted the visa. That, in turn, meant that his wife and daughter (the second and third applicants) could not be granted visas (CB 152).
On 29 March 2019, the applicants applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
The application before this Court is brought pursuant to s 476 of the Act. 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’s decision is five pages long and spans 25 paragraphs (CB 149-153). The final page contains extracts of relevant legislative provisions (CB 153).
The Tribunal began by outlining that the applicants had applied for the visas on 30 June 2016 (noting that a delegate of the Minister had refused to grant the applicants the visas on the basis that the first applicant was not the subject of an approved nomination and thus did not meet cl 186.223(2) in Schedule 2 of the Regulations). The Tribunal explained that the criteria for the grant of a subclass 186 visa are set out in Part 186 in Schedule 2 of the Regulations and that applicants must grant both the “common criteria” and the criteria set out in one of three visa streams. The Tribunal also explained that the first applicant had sought the visa in the Temporary Residence Transition stream and nominated the position of Customer Service Manager with the sponsor (at [1]-[5]).
The Tribunal confirmed that on 5 December 2018 it had requested information from the applicants pursuant to s 359 of the Act and the applicants were asked to provide a response by 19 December 2018. The Tribunal noted that no response or further information was received from the applicants or their representative (at [7]-[9]).
The Tribunal also explained that on 4 February 2019, it had invited the applicants to appear before the Tribunal in a “multi-application hearing list on 28 February 2019” and had again asked them to provide any material or evidence at least seven days prior to the hearing. The Tribunal noted that, despite numerous attempts to contact the applicants (using the mobile phone number provided by them), the Tribunal had been unable to contact the applicants (both prior to the scheduled hearing commencement time and during the course of the hearing). The Tribunal also confirmed that there had been no adjournment or extension of time request from the applicants and it had elected to decide the matter “on the basis of the information presently before it” (at [6] & [10]-[11]).
The Tribunal identified that the issue before it was whether the first applicant was the subject of an approved nomination as required by cl 186.223 in Schedule 2 of the Regulations (noting that the nominated position must be the one that was the subject of the declaration made as part of the current visa application). The Tribunal confirmed that the Tribunal’s file and electronic records as well as the Department’s file were available to it for consideration (at [13]-[16]).
The Tribunal then set out the applicants’ migration history and details of the first applicant’s work and study history in Australia (at [17]-[18]).
The Tribunal continued:
19.The Tribunal does not have before it information from the nominator, however notes that on 14 November 2017, the nomination lodged on behalf of the applicant for the position of customer service manager was refused by the Minister. The Tribunal also does not have before it any more recent information from the applicants concerning current employment or any other substantive visa application which might be underway. There is also no record of the decision against the nominator being subject to a review. As indicated above, the Tribunal did not receive any further information in reply to its letter of 5 December 2018, which clearly informs the applicant that without an approved nomination or pending review of a decision to refuse the nomination, the decision to refuse the visa must be affirmed.
20.The Tribunal finds it would be futile in such circumstances without an approved nomination or an outstanding review application, to remit the matter to the Department.
21.The Tribunal finds that the applicant is the person nominated in an application for the position of customer service manager. The Tribunal is satisfied that the nomination application was refused by a delegate of the Minister on 14 November 2017, which refusal is not the subject of a review sought by the nominator. As a result, the applicant is not the subject of a nomination which has been approved and the visa application related to that nomination must fail, and cl.186.223 is not met.
The Tribunal also determined that the second and third applicants did not satisfy cl 186.311 in Schedule 2 of the Regulations and, on that basis, did not meet the criteria for the grant of the visas (at [22]-[23).
The Tribunal ultimately affirmed the decision refusing to grant the applicants the visas (at [25]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 29 March 2019 contains two grounds of review, as follows (without alteration):
1.Tribunal has denied procedural fairness as they failed to provide hearing to the client.
2. Tribunal has failed to make relevant consideration to the documents provided.
On 30 June 2021, procedural orders were made by Registrar Carney of this Court giving the applicants an opportunity to file an amended application, any written submissions and any additional evidence. Unfortunately, no additional materials were provided by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit (sworn by the first applicant on 18 March 2019 and taken as read an in evidence at the hearing of this matter) filed by the applicants on 29 March 2019, a Court Book numbering 156 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 25 October 2023.
The first applicant appeared before this Court on 8 November 2023 without legal representation. He appeared via video link and spoke on behalf of his family. Whilst an interpreter was requested in the judicial review application filed by the applicants, the first applicant indicated that he would proceed in English (without the assistance of an interpreter). The Court is satisfied that the first applicant was able to properly engage with the Court and no error arose in this regard.
Ms Arielle Zinn from the Mills Oakley Lawyers appeared on behalf of the Minister (also via video link).
The Court confirmed with the first applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 (“SAAP”) at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that he did not have any concerns with the Tribunal’s decision. He explained that he had told his migration agent that he was not able to attend the Tribunal hearing and his agent said that “it was okay, that he would let the Tribunal know and that they could get another date”. The first applicant explained that he believed that his representative did not let the Tribunal know he could not attend and this is why the Tribunal “just made a decision”. The first applicant stressed that it was “all the agent’s fault” and explained that that was why he was “not working with that agent anymore”.
The first applicant also claimed that he had told his agent that if he was given some more time, he could have found a new sponsor. He also asked the Court to give him “some more time” to find another sponsor and provide the required documents.
The first applicant’s comments, to the extent that they point to any jurisdictional error on the part of the Tribunal, will be considered by the Court below.
CONSIDERATION
Grounds of review
As outlined above, the first applicant told the Court (at the hearing on 8 November 2023) that he did not have any concerns with the Tribunal’s decision. For completeness, however, the Court will address the applicants’ grounds of review before assessing the oral submissions made by the first applicant at the hearing before this Court.
Ground one
Ground one provides:
1.Tribunal has denied procedural fairness as they failed to provide hearing to the client.
This ground fails on a factual level.
The Tribunal is ordinarily required to invite an applicant or applicants to appear before it to give evidence and present arguments relating to the issues arising from the decision under the review (as per s 360(1) of the Act and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63).
There are some exceptions to this requirement. Those exceptions will be discussed further below.
The Tribunal in this matter complied with the requirements in s 360(1) of the Act and invited the applicants (via email and through the third representative) to attend a hearing before it (CB 135-142). The hearing invitation was sent to the applicants’ third representative on 4 February 2019 and notified the applicants that a hearing had been scheduled to take place on 28 February 2019 at 9.30am (NSW time). The hearing invitation also informed the applicants that they would be contacted by telephone at the time of the hearing (using the mobile phone number provided by the applicants in their review application) (CB 137).
Unfortunately, neither the applicants nor their representative attended the scheduled hearing (CB 143-145).
The Tribunal records indicate that multiple attempts were made to contact the applicants by telephone between 9.24am and 10.53am on the day of the hearing (being on 28 February 2019) but those calls were not answered and the applicants were not able to be reached (CB 143 & 150).
Before this Court, the first applicant did not dispute that he failed to attend the Tribunal hearing. As outlined above, he explained that he told his representative that he was unable to attend the Tribunal hearing on the scheduled date and was told by his agent that they would contact the Tribunal to obtain another hearing date.
This issue will be addressed separately below.
The Court is otherwise satisfied, however, that the Tribunal invited the applicants to attend a Tribunal hearing as required by s 360(1) of the Act.
As explained by this Court in Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 (citing Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390), the Tribunal is required (by s 360(1) of the Act) to invite an applicant to appear before it unless one of the exceptions set out in ss 360(2) and (3) of the Act apply.
Those sections relevantly provide as follows:
(2)Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act. In this regard, s 359C(1) of the Act is also of note. That section relevantly provides as follows:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 5 December 2018, the Tribunal invited the applicants (through the third representative and via email) to provide information to the Tribunal (CB 131-134). That invitation letter:
(a)asked the applicants to give the Tribunal evidence that the position identified in the first applicant’s visa application was the subject of an approved nomination or that there was a pending application for review of a decision to refuse the nomination: ss 359(2) and 359B(1) of the Act;
(b)was sent to the applicants’ third representative (as required by s 379G of the Act) via email (being a method specified in s 379A of the Act) at the last known email address provided in connection with the review: s 359(3) of the Act; and
(c)gave the applicants 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
Critically, the Tribunal’s letter required a response be provided to the Tribunal by no later than 19 December 2018 (CB 133).
No further information or response was received from the applicants or their third representative (CB 150). Further, no request was made by the applicants (or the third representative) for further time to respond.
The effect of the applicants’ failure to respond to the Tribunal’s letter (or to request an extension of time within which to do so) was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicants lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicant to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
The Court is satisfied that no jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2. Tribunal has failed to make relevant consideration to the documents provided.
By ground two, the applicants claim that the Tribunal failed to properly consider “documents provided”.
The Court disagrees for the reasons that follow.
The applicants did not provide any additional documents or materials to the Tribunal (save for a copy of the delegate’s decision provided with the review application). The Court notes that the delegate’s decision confirms that the nomination lodged by the sponsor was refused on 14 November 2017 (CB 107). That information was considered by the Tribunal in its written reasons (at [19], CB 152).
The Tribunal confirmed in its written reasons that it had had regard to the “Tribunal’s file and electronic records from the Department’s file” (at [16], CB 151).
Further, the Court notes that the sole issue before the Tribunal was whether the first applicant was the subject of an approved nomination. As set out above, the Tribunal asked the applicants to provide further evidence in that regard (by way of the Tribunal’s invitation letter dated 5 December 2018, CB 131-134) but no further information or materials were provided.
In the circumstances of this matter, the Tribunal was required to determine the application on the papers or materials before it (including the delegate’s decision confirming that the nomination application had been refused) and did so.
The Tribunal also invited the applicants to appear at a hearing before it to give evidence and present arguments (CB 135-142). The applicants did not appear at the scheduled hearing (nor did the third representative) (CB 143-145).
In the circumstances, the Court is satisfied that the Tribunal considered all relevant materials before it and no jurisdictional error arises in relation to ground two.
First applicant’s oral submissions
Whether the conduct of the applicants’ representative amounted to a fraud on the Tribunal
As noted above, the first applicant (in oral submissions before this Court) raised concerns about the third representative’s conduct in this matter. In particular, the first applicant explained that he had told the third representative that he was not able to attend the Tribunal hearing on the scheduled date and claims that he was told by that representative that he would contact the Tribunal and obtain an alternate hearing date.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
In this matter, there is no evidence before the Court to support the first applicant’s claims or to confirm his instructions to the third representative. Further, even if the third representative failed to pass on the information to the Tribunal or obtain a new hearing date, that could not amount to a “fraud” on the Tribunal in circumstances where, as outlined above, the applicants were not, in fact, entitled to a hearing before the Tribunal (having failed to respond to the request for information from the Tribunal) and the first applicant did not dispute the fact that he was not the subject of an approved nomination.
What the first applicant describes here is, at its highest, negligence or incompetence on the part of the third representative. The Court makes no findings about the applicants’ representative in this regard.
In the context of this matter, the most appropriate course of action would be for the applicants to raise their concerns with the Office of the Migration Agents Registration Authority (being the appropriate regulatory authority).
No jurisdictional error arises in this regard.
Whether the first applicant should have been given additional time to find a new sponsor
As noted above, the first applicant also claimed that he had told his agent that if he had been given some more time, he could have found a new sponsor. The first applicant also asked the Court to give him “some more time” to find another sponsor.
There is no evidence before the Court to suggest that the applicants (or the third representative) asked the Tribunal adjourn the matter or give them any additional time to allow the first applicant to find another sponsoring employer. The Tribunal cannot be found to have erred in making a decision where there was no request made to the contrary.
Further, even if the Tribunal had adjourned the matter or given the first applicant additional time to find a new employer, this would not have assisted the applicants. In this regard, the Court references the comments of Justice Mortimer (as the Chief Justice was then known) in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (“Singh”) (and affirmed in Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 (“Begum”) at [22]), as follows (emphasis added):
88.In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
The effect of the reasoning in Singh is that the first applicant’s visa application was tied to the sponsor’s nomination application and that nomination application could not be substituted by another nomination application from a different sponsoring employer (or, in fact, a new nomination application from the same employer).
Hence, there was no error in the Tribunal proceeding to make its decision and no jurisdictional error arises in this regard.
Otherwise – whether the Tribunal failed to comply with s 359A of the Act
In written and oral submissions, the Minister raised an additional issue with the Court in their capacity as model litigant. That issue related to whether the Tribunal failed to comply with s 359A of the Act.
Relevantly, the Minister referenced the following passages in the Tribunal’s written reasons (emphasis added) (CB 152):
19.The Tribunal does not have before it information from the nominator, however notes that on 14 November 2017, the nomination lodged on behalf of the applicant for the position of customer service manager was refused by the Minister. The Tribunal also does not have before it any more recent information from the applicants concerning current employment or any other substantive visa application which might be underway. There is also no record of the decision against the nominator being subject to a review. As indicated above, the Tribunal did not receive any further information in reply to its letter of 5 December 2018, which clearly informs the applicant that without an approved nomination or pending review of a decision to refuse the nomination, the decision to refuse the visa must be affirmed.
20.The Tribunal finds it would be futile in such circumstances without an approved nomination or an outstanding review application, to remit the matter to the Department.
The Minister submitted that this suggested that the Tribunal had searched its own records to determine whether or not the sponsor had sought merits review of the decision to refuse the nomination.
The Minister accepted that this information was information that the Tribunal was required to put to the applicants pursuant to s 359A of the Act “because the Tribunal’s reference to there being “no record” of a review application in respect of the nomination application suggests that the Tribunal took into account proof of a negative in its own records, rather than deficiencies in the [first] applicant’s evidence”.
The Minister also accepted that “on current authority this Court is bound to find that any breach of s 395A was material”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717 at [92] (“Antoon”) & SAAP. However, the Minister submitted that the Court should withhold relief on the basis that remittal would be futile.
Before considering this issue, it is first useful to set out the legislative provisions. Section 359A of the Act relevantly provides as follows:
359A Information and invitation given in writing by Tribunal
(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.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
As outlined above, the Tribunal invited the applicants (through the third representative) to give the Tribunal evidence pursuant to s 359 of the Act (CB 131-134). Relevantly, that letter stated (CB 133):
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 19 December 2018.
Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please return a completed MR10 – Withdrawal of Application form.
This letter was sent pursuant to s 359 of the Act (not s 359A of the Act) and, to the extent that it is suggested that it was sent pursuant to s 359A of the Act, the Court notes that the letter did not satisfy all of the requirements set out in s 359A of the Act. Whilst the Tribunal referenced the nomination refusal (in broad terms) in its s 359 letter, the Court is not satisfied that the Tribunal gave the applicants clear particulars of that information or provided sufficient information to applicants to ensure that they understood the consequences of that information being relied upon in affirming the delegate’s decisions. The Tribunal also did not expressly invite the applicants to comment on or respond to that information. It simply asked the applicants to “provide evidence” to the Tribunal by 19 December 2018. The Tribunal thus did not comply with ss 359A(1)(a), (b) or (c) of the Act.
The Court is also not satisfied that any of the exceptions in ss 359A(3) or (4) of the Act applied. Relevantly, the applicants did not appear at the Tribunal hearing so the invitation could not have been given orally, the information was personal to the first applicant, the information was not directly provided by the applicants and was not non-disclosable information. On that basis, the exceptions in ss 359A(3), 359A(4)(a), (b), (ba) and (c) of the Act did not apply.
In relation to non-compliance with s 424A of the Act (being provisions of the Act which are analogous to those set out in s 359A of the Act), in SAAP the High Court held as follows (emphasis added):
77.However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.
Justice Wheelahan also noted as follows in DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 (again in relation to the analogous provisions set out in s 424A of the Act):
67.In SAAP it was held that compliance by the Tribunal with s 424A(1) is a condition of the valid performance of the duty to review, with the consequence that non-compliance renders a decision to affirm the decision under review invalid in the sense that the decision is ineffective in law to achieve that result: see SAAP at [77] (McHugh J), [173] (Kirby J), [206]-[208] (Hayne J). These passages were cited in Plaintiff M174/2016 at [11], which in turn was cited by Gordon J sitting in the court’s original jurisdiction in Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 at [49]. The statements in SAAP address the question of construction that arises as to whether non-compliance with s 424A(1) leads to invalidity without regard to the additional consideration of materiality, or whether non-compliance with s 424A(1) is necessarily material: see, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [30]-[33] (Kiefel CJ, Gageler, Keane and Gleeson JJ); and see also, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [92] (McHugh, Gummow, Kirby and Hayne JJ). It follows from what was said in SAAP by McHugh J at [77], and by Hayne J at [208], with Kirby J agreeing at [173], that non-compliance with s 424A(1) is necessarily material, because the provision prescribes the content of an imperative obligation to accord procedural fairness, compliance with which is a necessary condition of the validity of the review.
On the basis of the authorities cited above, the Court is satisfied that the Tribunal’s error (in failing to comply with s 359A of the Act) rendered the Tribunal’s decision invalid.
In relation to the question of whether such an error also has to be material, the Court notes that Justice Wigney recently considered this issue in some detail in Antoon. After a detailed consideration of both recent High Court and Federal Court authorities in relation to materiality (and how those cases might be reconciled with SAAP), His Honour concluded as follows:
92There is undoubtedly a degree of tension between the decision of the majority justices in SAAP and the reasoning of the majority justices in Hossain, SZMTA and MZAPC. It is difficult to see any sound basis for concluding that the implication of the threshold of materiality would not apply in the case of breaches of ss 359A and 424A of the Act. Nevertheless, SAAP has not been overruled, expressly or impliedly, and remains authority for the proposition that a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision. Any tension or inconsistency between that proposition and the reasoning in Hossain, SZMTA and MZAPC must be resolved by the High Court, not a single judge of this Court.
93It is also possible, at least to some extent, to reconcile the majority judgments in SAAP with the reasoning in Hossain, SZMTA and MZAPC. The majority justice in SAAP may be taken to have concluded either that the nature of the obligation in s 424A is such that no “additional threshold” of materiality need be met (cf MZAPC at [33]), or that the threshold of materiality is set very low (cf Hossain at [30]), in the sense that the “standard of reasonable conjecture” is “undemanding or not onerous” (cf Nathanson at [33], [47]). In other words, little if anything is required to establish that any breach of s 424A is material, in the sense that compliance in the circumstances could reasonably have led to a different outcome.
94That reconciliation is broadly consistent with the reasoning of Wheelahan J in DYI16 at [67]. To the extent that the judgment in DYI16 is inconsistent with the judgment of Flick J in DME16, the better view is that the judgment in DME16 is plainly wrong. Likewise, to the extent that DYI16 is considered to be inconsistent with the obiter dicta in Nakair, DBF16 and Hasnat, the dicta in those cases is wrong and should not be followed.
95It follows that, while the primary judge may not have been bound to follow DYI16, his Honour did not err in doing so. His Honour was in fact bound by SAAP to conclude that the breach of s 424A constituted a jurisdictional error with the result that the Tribunal’s decision was invalid. That was so despite his Honour’s finding that the “error” on the part of the Tribunal would have made no difference to the outcome of the review…
This Court is bound by these comments.
In this matter, as was the case in Antoon, this Court is bound (by SAAP) to conclude that a breach of s 359A amounted to jurisdictional error on the part of the Tribunal such that the Tribunal’s decision was invalid.
This remains the case despite the fact that the error on the part of the Tribunal could not have made a difference to the outcome of the review: Antoon at [95].
Whether the Court should exercise its discretion and refuse to grant relief
It is well settled that the issuing of Constitutional writs is discretionary.
In this regard, the Court references the comments of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 (citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [56]) as follows (emphasis added):
28.This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that[18]:
“Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said[19]:
‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”
In this matter, as discussed above, the Court considers that there would be no utility in remitting the matter to the Tribunal in this instance.
As set out above, the visa application in this matter is a “once off” process which, in effect, “ties” to the sponsor’s nomination application: Singh and Begum at [22]. The nomination application in this matter failed and the Tribunal determined that no further litigation in that regard was pending. There is no evidence before this Court to suggest otherwise.
This means that the applicants will be “doomed to fail” if the matter is remitted to the Tribunal as no approved nomination exists.
In these circumstances, if the Court were to remit the matter to the Tribunal, the Tribunal would, again, have no choice but to find that the first applicant does not meet cl 186.223 in Schedule 2 of the Regulations as he is not the subject of an approved nomination.
The Court is satisfied that “no useful result could ensue” from remitting the matter to the Tribunal and, on that basis, the Court considers that it is appropriate to withhold relief and not issue any writs in this matter.
CONCLUSION
The application for judicial review failed to identify any jurisdictional error. The Court (with the Minister’s assistance) has identified a jurisdictional error on the part of the Tribunal.
However, as outlined above, the Court declines to grant relief in this matter on the basis that remittal to the Tribunal would be futile.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 January 2024
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