Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 736
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 736
File number: MLG 326 of 2018 Judgment of: HER HONOUR JUDGE KIRTON KC Date of judgment: 17 August 2023 Catchwords: MIGRATION – Temporary Business Entry (Class UC) visa – review of Administrative Appeals Tribunal – three applicants – where primary applicant did not hold an approved nomination occupation by a business sponsor – cl 457.223(4)(a) of Migration Regulations 1994 (Cth) not satisfied – applicants failure to respond to Tribunal invitation to provide supporting information – Tribunal affirmed decision of a delegate to refuse the visa – whether jurisdictional error established – grounds of review not particularised – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 359C, 363(1)(b) and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Federal Circuit Court Rules 2001 (Cth) sch 1, pt 3, div 1, item 3
Migration Regulations 1994 (Cth) cls 457.223(4) and 457.321
Cases cited: FEY17 v Minister for Home Affairs [2020] FCA 1014
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2016] FCA 108
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submissions: 9 February 2022 Date of hearing: 9 February 2022 Place: Melbourne (by videoconference) The First and Second Applicants: Appeared in person The Third Applicant: The First Applicant appeared on behalf of the Third Applicant as litigation guardian Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 326 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET SINGH
First Applicant
MANPREET KAUR DHILLON
Second Applicant
ASHLEEN KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
17 August 2023
THE COURT ORDERS THAT:
1.The Application filed 9 February 2018 is dismissed.
2.The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $7,467.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed on 9 February 2018 (Application), the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 22 January 2018 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicants Temporary Business Entry (Class UC) visas (Visa).
The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicants have three (3) grounds of review in the Application, which the Court will consider in detail below.
ISSUE IN DISPUTE
The issue in dispute in this matter is whether the Tribunal’s Decision contains a jurisdictional error.
SYNOPSIS
I have determined that the Tribunal’s Decision is not affected by jurisdictional error and therefore the Application must be dismissed.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 12 December 2018, numbering 160 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Written Submissions, filed 2 February 2022 (Minister’s Submissions), at [4] to [12], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
There are three (3) Applicants in this proceeding, these are: Mr Harpreet Singh (First Applicant); the First Applicant’s wife Manpreet Kaur Dhillon (Second Applicant); and the daughter of the First and Second Applicants Ashleen Kaur (Third Applicant) (the Second and Third Applicants together will be referred to as the Secondary Applicants). The First Applicant and Secondary Applicants will hereafter collectively be referred to as the Applicants.
The First Applicant is a citizen of India. It is unclear when he arrived in Australia. The First and Second Applicants married in Australia on 10 March 2019.[1] The Third Applicant was born on 26 March 2012.[2]
[1] Court Book filed 12 December 2018 (CB), CB 48-50.
[2] CB 46.
On 8 May 2015, the First Applicant applied for the Visa, listing ‘SCAFFO HIRE PTY LTD’ (Sponsor) as his sponsoring employer and nominating a migration agent as his authorised representative (Representative).[3]
[3] CB 1-13.
On 25 June 2015, the Department of Immigration and Border Protection (Department) sent a letter to the Representative notifying the First Applicant that the Sponsor did ‘not have an approved nomination for [him]’ and as such, his Visa application was unlikely to succeed.[4] There is no evidence that the First Applicant or his Representative responded to the Department’s letter.
[4] CB 52.
On 6 October 2015, the Delegate notified the First Applicant, via a letter to the Representative, that his application for the Visa had been refused (Delegate’s Decision).[5] The Delegate’s Decision was made on the basis that the Sponsor did not have an approved nomination for the First Applicant, and he therefore did not satisfy cl 457.223 of the Migration Regulations 1994 (Cth) (Regulations).[6] The Delegate’s Decision also refused to grant the Visa in respect of the Secondary Applicants.[7]
[5] CB 57-62.
[6] CB 65.
[7] CB 66-67.
On 23 October 2015, the Applicants applied to the Tribunal for review of the Delegate’s Decision, again nominating the Representative as their authorised representative.[8] The following communication subsequently occurred between the Applicants, the Representative, and the Tribunal:
(a)On 13 December 2017, the Tribunal sent a letter via email to the Representative, inviting the Applicants to provide information that the First Applicant met cls 457.223(4)(a) and (aa) of the Regulations, which were mandatory criteria for the grant of the Visa;[9]
(b)On 22 December 2017, the Representative requested, by email, an extension of four (4) weeks to provide the information requested by the Tribunal;[10]
(c)On 2 January 2018, the Tribunal sent a letter via email to the Representative, granting an extension of time to provide the information requested by 16 January 2018, and noted that if the information was not received by this time, the Tribunal may make a decision in respect to the Application;[11] and
(d)On 16 January 2018, the Representative sent an email to the Tribunal stating as follows:
I wish to inform you that I act for the above mentioned our client.
Please note that we do not have any instructions from our client whether he wants to pursue this Application. Therefore, I request that you, please decide on his Review Application.[12]
(Without alteration)
[8] CB 68-70.
[9] CB 107-111.
[10] CB 112.
[11] CB 114-116.
[12] CB 117.
On 22 January 2018, the Tribunal affirmed the Delegate’s Decision and sent a copy of the Decision Record by email to the Representative.[13]
[13] CB 119-130.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 125 to 128 of the Court Book. The Minister’s Submissions, at [13], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with some amendments, as follows.
Firstly, the Tribunal summarised the relevant background,[14] and addressed the requirements of cl 457.223(4)(a) of the Regulations.[15]
[14] CB 126, [1]-[5].
[15] CB 126, [6].
The Tribunal went on to confirm the chronology of events, including that an invitation had been made to the Applicants to provide information to the Tribunal, which had ultimately not been responded to.[16]
[16] CB 126-127, [7]-[11].
Consideration was then made by the Tribunal as to whether an adjournment should be granted to allow the Applicants additional time in which to provide further evidence in support of their review application. The Tribunal ultimately decided not to adjourn the matter, taking into account relevant case law and whether a fair opportunity had already been provided to the Applicants to provide supporting information.[17]
[17] CB 127, [12]-[19]
Based on the evidence before it, the Tribunal was not satisfied that the First Applicant met the requirements of cl 457.223(4)(a) of the Regulations as he had not been subject to an approved nominated occupation, nor that the Secondary Applicants met cl 457.321 of the Regulations.[18]
[18] CB 128, [20]-[22].
The Tribunal affirmed the Delegate’s Decision.[19]
[19] CB 128, [23].
HEARING BEFORE THE COURT
The matter was heard on 9 February 2022 and proceeded by way of videoconference on Microsoft Teams (Hearing). The Court is satisfied that the Hearing represented a meaningful opportunity for the Applicants to engage with the Court.
PROCEEDINGS BEFORE THE COURT
On 9 February 2018 the Applicants filed the Application.
The Applicants were granted leave to file an amended application by Orders of a Registrar of this Court dated 28 November 2018. They did not do so and as such these Reasons for Judgment refer to the grounds as set out in the Application.
The Application contained the following grounds of review:
1.We are not satisfied how AAT approached to our case (Ground 1).
2.Due to negligence of our employer the visa was refused (Ground 2).
3.I think we deserve second chance to satisfy visa requirements (Ground 3).
(Words in italics added, otherwise without alteration)
The material before the Court includes the Court Book, an Affidavit of the First Applicant affirmed and filed 9 February 2018, and the Minister’s Submissions. The Court has also considered the transcript of the Hearing, where both the First Applicant and Counsel for the Minister made submissions.
The First and Second Applicants appeared before the Court without legal representation.
At the commencement of the Hearing, the Court addressed the Application in a Proceeding improperly filed by Applicants on 9 February 2022, the day of the Final Hearing (Application in a Proceeding). The Application in a Proceeding contained a request previously made by via email to my Chambers on 4 February 2022 and 6 February 2022, for an adjournment of the Hearing on the basis of the First Applicant’s poor mental health at the time. Some supporting medical evidence was also provided. The application was opposed by the Minister.[20]
[20] Transcript, P3:L35.
In considering the Application in a Proceeding, the Court referred to the judgments of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 and Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108, in support for the proposition that what is needed for medical evidence to be meaningful is material that establishes why or how an applicant would be unfit for participation at a court hearing.
As the medical evidence provided by the First Applicant was not persuasive as to his unfitness to participate in a hearing, and the significant length of time between the filing of the Application and the notice of listing of the Hearing being sent to the First Applicant wherein an adjournment could have been requested, the Court dismissed the Application in a Proceeding.[21]
[21] Transcript, P4:L30-40.
The Court will now consider each ground of review.
CONSIDERATION
The Court notes the Minister’s Submissions, in which the grounds of review in the Application are described as ‘vague and devoid of particulars’, and that on this basis alone the Application should be dismissed.[22]
[22] First Respondent’s Written Submissions, filed 2 February 2022 (Minister’s Submissions), [19]; citing FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90].
Despite the lack of particularity, the Court nevertheless considers it prudent to address each ground of view in the Application in turn.
Ground 1
Ground 1 expresses a dissatisfaction by the Applicants as to the approach taken by the Tribunal in their matter. While such dissatisfaction cannot be described as jurisdictional error on the part of the Tribunal, it may nonetheless reveal a broader issue with the procedural fairness afforded to the Applicants by the Tribunal.
In this case, the Tribunal cannot be said to have denied the Applicants procedural fairness in circumstances where it did the following:
(a)On 13 December 2017, it sent a letter to the Representative’s email, which had been listed on the Applicants’ application for review by the Tribunal, inviting the Applicants to provide information in writing as to whether the First Applicant met the criteria in cl 457.223(4)(a) of the Regulations;
(b)As requested by the Representative, on 2 January 2018 the Tribunal granted an extension of time to the Applicants to provide the information;
(c)As no information was provided to the Tribunal within the timeframe, and the Representative expressly requested that the Tribunal ‘decide’ on the application for review, the Tribunal proceeded to make a decision; and
(d)In the Tribunal’s Decision, the Tribunal considered whether or not an adjournment should be granted to allow the Applicants additional time to provide supporting evidence.
With respect to paragraph [33(c)] above, the Court notes that the Tribunal was statutorily empowered to ‘make a decision on the review without taking any further action to obtain the information’ pursuant to s 359C of the Migration Act. The Tribunal correctly identified that if it proceeded to make a decision, it would be in the exercise of its discretion under the Migration Act.
Further, the Tribunal gave comprehensive consideration to the granting of an adjournment pursuant to s 363(1)(b) of the Migration Act, ultimately deciding against it due to the Applicants having had a fair opportunity to provide any information to the Tribunal, the uncertainty that any such information would be forthcoming, and the desire not to delay a decision indefinitely.
Further, as submitted by the Minister, the Tribunal was plainly aware of the consequences for the Applicants of not adjourning the review.[23]
[23] Minister’s Submissions, [25]; CB 127, [18].
Despite the evident dissatisfaction of the Applicants with the Tribunal’s conduct, or ‘approach’ to this matter, it cannot be said that the Tribunal committed jurisdictional error at any stage and was indeed statutorily entitled to make the decisions it did. Ground 1 is dismissed.
Ground 2
Ground 2 contends that the Delegate’s Decision was made as a result of the Sponsor’s ‘negligence’.
The Minister submitted that any ‘negligence’ of the Sponsor is irrelevant to this proceeding and not a basis for a finding of jurisdictional error.[24] The Court agrees with this submission and further notes that this claim by the Applicants would more appropriately have been raised with the Tribunal, had the opportunity to provide such information been utilised.
[24] Minister’s Submissions, [27].
Ground 2 is dismissed.
Ground 3
Ground 3 asserts a belief by the Applicants of their entitlement to a ‘second chance’ to satisfy the entitlements of the Visa.
The Court refers to and repeats its comments at paragraph [39] above and notes that this is not a proper ground of review for consideration by the Court.
Ground 3 is dismissed.
CONCLUSION
The Application has not identified any jurisdictional error in the Tribunal’s Decision and is therefore dismissed.
The Minister sought costs fixed in the sum of $7,467,[25] in accordance with the Federal Circuit Court Rules 2001 (Cth) at sch 1, pt 3, div 1, item 3, applicable at the time of the Hearing. The Court notes that this amount is lower than the scale amount of $7,853 currently in force in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, an Order will be made that the First and Second Applicants pay the Minister’s costs fixed in the sum of $7,467.
[25] Transcript, P11:L33-39.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 17 August 2023
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