Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 300
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 300
File number: MLG 2238 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 27 April 2023 Catchwords: MIGRATION – Regional Employer Nomination (Class RN) Subclass 187 visa – review of Delegate’s decision – where the Applicant is the spouse of the primary visa applicant – where the primary visa applicant withdrew her visa application – no jurisdiction to hear the matter – no decision by the Delegate of the Minister to review – no jurisdictional error - futile application – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 6, 8, 9, 10, 10A, 11, 12, 14, 17K, 17L, 18A, 18B, 19A, 19D, 24C, 24N, 24P, 24PA, 46 and 64
Migration Act 1958 (Cth) ss 5, 5E, 47, 49, 474, 474A, 476
Federal Circuit Court Rules 2001 (Cth) sch 1, pt 3, div 1
Migration Regulations 1994 (Cth) sch 2, cl 187
Cases cited: Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 929 Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 16 November 2020 Date of hearing: 16 November 2020 Place: Melbourne (by videoconference and audioconference) The Applicant: Appeared in person Counsel for the Respondent: Mr J Barrington Solicitor for the Respondent: Mills Oakley
Table of Corrections 11 August 2023 In Order 2, the sum to be paid by the Applicant to the Respondent is amended to $6,703.
In [44], information regarding the parties’ request for an amendment, by consent, to the costs order is explained and granted accordingly.ORDERS
MLG 2238 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURJOT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The Applicant’s Originating Application filed 30 July 2018 is dismissed.
2.The Applicant pay the Respondent’s costs fixed in the amount of
$7,467$6,703.3.The name of the Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 17.05(2)(f) of the Federal Circuit and Family Court of Australia (Division) (General Federal Law) Rules 2021 (Cth).
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
The Applicant seeks judicial review of a decision of a delegate (Delegate) of the Respondent (Minister) dated 11 July 2018 to withdraw the Applicant’s Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) visa (Visa) upon the Applicant’s request.
The Originating Application, dated 27 July 2018 and filed 31 July 2018 (Application),[1] contains four (4) grounds of review which the Court will consider in detail below.
[1] As the Application was filed after 4:30 pm on 30 July 2018 it is considered to have been filed the next business day: r 2.05(3)(b) Federal Circuit and Family Court Rules 2001 (Cth) applicable at the time.
This matter was heard on 16 November 2020 and proceeded by way of videoconference (with the Applicant appearing by audioconference) on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) in Victoria at the time, due to the ongoing COVID-19 pandemic (Final Hearing). The Applicant did not request an interpreter. The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
BACKGROUND
The Court has before it a Court Book numbering 79 paginated pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, dated 26 October 2020 and filed 27 October 2020 (Minister’s Submissions), at [5] to [14], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of India, born on 12 October 1988.
The Applicant’s ex-wife (Primary Visa Applicant) applied for the Visa on 9 August 2017 and the Applicant was noted as a Dependent Applicant in the application, as a member of the Primary Visa Applicant’s family unit.[2]
[2] Court Book (CB) 1–14.
On 3 May 2018, the Primary Visa Applicant withdrew the Visa application. The Applicant and Primary Visa Applicant’s legal representative (Representative) provided to the Delegate a Form 1446 titled ‘Withdrawal of a visa application’ (Withdrawal Form), completed and signed by the Primary Visa Applicant.[3]
[3] CB 40–45.
On 4 May 2018, the Representative was informed by the Delegate that a signature was required from both the Primary Visa Applicant and the Applicant. The Representative informed the Delegate later that day that the relationship between the Applicant and the Primary Visa Applicant had broken down and attempts to contact the Applicant and arrange for him to sign the Withdrawal Form had been unsuccessful. The Representative reiterated that the Primary Visa Applicant wished to withdraw her Visa application.[4]
[4] CB 47–48.
On 7 May 2018, the Delegate requested evidence from the Representative that the relationship between Primary Visa Applicant and the Applicant had broken down. The Delegate noted that ‘the application has to be withdrawn for both applicants as the spouse is the primary applicant’s family member’.[5]
[5] CB 47.
On 25 May 2018, the Representative informed the Delegate that the Primary Visa Applicant had been unsuccessful in contacting the Applicant to sign the Withdrawal Form. The Representative also provided a statutory declaration from the Primary Visa Applicant stating that her relationship with the Applicant had irrevocably broken down and that she had attempted to organise for the Applicant to sign the Withdrawal Form but had been unable to contact him.[6]
[6] CB 46, 51–52.
On 30 May 2018, the Delegate wrote to the Primary Visa Applicant and invited her to comment within 28 days on adverse information – namely, that the Delegate ‘has received information that indicates that you are no longer in an ongoing relationship with the primary applicant for the visa application’.[7] I note that the Delegate wrote to the Primary Visa Applicant inviting her to comment on the adverse information implying that she was the secondary Applicant instead of being sent to the Applicant as he was the secondary Applicant to the Primary Visa Applicant’s application.
[7] CB 54–56.
On 27 June 2018, the Representative emailed the Delegate, indicating that the Applicant will supply the Delegate with a completed Withdrawal Form within the next few days and requested an extension of time for the Applicant to provide this document to the Delegate.[8]
[8] CB 57.
On 6 July 2018, the Representative emailed the Delegate and provided a Withdrawal Form, completed and signed by both the Primary Visa Applicant and the Applicant.[9]
[9] CB 59–65.
On 11 July 2018, the Delegate wrote to the Applicant confirming it had withdrawn the Applicant’s application for the Visa in accordance with his request.[10]
[10] CB 67–68.
PROCEEDINGS BEFORE THE COURT
For clarity, the Applicant did not apply to the Administrative Appeals Tribunal for merits review.
On 31 July 2018, the Applicant filed the Application seeking judicial review of the Delegate’s decision.
On 27 August 2018, the Minister filed a Response to the Application, reserving its position as to competency.
The Applicant was provided with an opportunity to file any amended application by Orders of a Registrar of this Court, dated 22 January 2020. The Applicant did not do so and as such these Reasons for Judgment refer to the grounds set out in the Application. The Application contained the following grounds of review:
1.I Gurjot Singh born on 12/10/1988, a citizen of India Passport Number J###, declare that I made an application for application for a Regional Employer Nomination (subclass 187) visa on 09th August 2017. I was notified of by the Department of Home Affairs (DHA) in an email communication that my Subclass 187 visa application has been withdrawn.
2.I have not made no visa withdrawal application to the Department of Home Affairs or the migration agent, nor have I sent any communication to either parties regarding withdrawing my visa application.
3.I strongly believe the decision of the DHA to withdraw my application for Regional Employer Nomination (subclass 187) visa without obtaining my consent is unlawful.
4.For the reasons stated above, I believe that the Department of Home Affairs fell into jurisdictional error by withdrawing the visa application without applicant's consent. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the matter.[11]
(Without alteration)
[11] CB 72.
The materials before the Court include the Application, an Affidavit of the Applicant sworn or affirmed on 30 July 2018 and filed 31 July 2018 (Applicant’s 31 July 2018 Affidavit), the Court Book (marked as Exhibit 1), and the Minister’s Submissions. The Court has also considered the transcript of the Final Hearing where both the Applicant and Counsel for the Minister provided oral submissions.
At the Final Hearing, the Applicant acknowledged that the Primary Visa Applicant was the primary applicant for their Visa.[12] However, the Applicant claimed that he did not know what was going on when the Representative informed him that he was no longer an applicant for his Visa and said that the Primary Visa Applicant did not tell him anything.[13] Further, the Applicant acknowledged that he did sign the Withdrawal Form but that he was ‘not happy about it’.[14]
[12] Transcript P10:L7-8.
[13] Transcript P5:L1-13.
[14] Transcript P10:L1-4.
The Court will now consider each ground for review.
CONSIDERATION
Jurisdictional Issues
The Minister’s Submissions raise the issue of the Court’s jurisdiction to hear the Application.[15] The Migration Act 1958 (Cth) (Migration Act) provides the Court with jurisdiction to review ‘migration decisions’.[16] Section 5(1) of the Migration Act defines a ‘migration decision’ as:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.
[15] Minister’s Submissions, [21]–[28].
[16] Migration Act 1958 (Cth) (Migration Act) ss 5(1), 476(1) and 474.
A ‘privative clause decision’ is defined in s 474(2) of the Migration Act as:
[…] a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
A ‘purported privative clause decision’ is defined in s 5E(1) of the Migration Act as meaning:
[…] a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
Section 474(6) of the Migration Act states that a ‘non-privative clause decision’ is:
[a] decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5).[17]
[17] Migration Act s 474(6).
Subsections 474(4) and (5) of the Migration Act set out as follows:
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non-citizens from disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration clause 16 Part 4 Court orders about reparation 23 Division 7 of Part 5 Part-5 reviewable decisions: offences 28 Division 6 of Part 7 Part-7 reviewable decisions: offences 31 regulation 5.35 Medical treatment of persons in detention
(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
For the purposes of s 5(1) of the Migration Act, an ‘AAT Act migration decision’ is a decision that falls under certain provisions of the Administrative Appeals Tribunal Act 1975 (Cth),[18] that is made in relation to any of the following:
(a) a review of a particular Part-5 reviewable decision or Part-7 reviewable decision;
(b) a function of the Tribunal in relation to the exercise of its jurisdiction to review Part 5-reviewable decisions or Part 7-reviewable decisions;
(c) a Tribunal member in the Migration and Refugee Division of the Tribunal.[19]
[18] Namely, Administrative Appeals Tribunal Act 1975 (Cth) ss 6, 8, 9, 10, 10A, 11, 12, 13, 14, 17K, 17L, 18A, 18B, 19A, 19D, 24C, 24N, 24P, 24PA, 42 and 64.
[19] Migration Act s 474A.
The Applicant does not have an application that satisfies any of the above definitions and consequently fails to have a ‘migration decision’. Applicants are entitled to withdraw their visa applications.[20] Once an application is withdrawn it is considered to be disposed of.[21] Once a visa application has been withdrawn, the requirement to consider the application falls away.[22] As the Applicant’s Visa application was withdrawn (which the Applicant admits),[23] the Minister is not taken to have refused the Visa.[24] There was therefore no issue under review before the Delegate as the Delegate was merely notifying the Applicant that his Visa had been withdrawn as requested.[25] As such, there was no decision made by the Delegate. Further, the Delegate stated that:
It is not possible to reconsider an application after it […] has been withdrawn. If in the future you wish to apply for another visa to Australia, a new visa application must be lodged.[26]
[20] Migration Act 49(1).
[21] Migration Act 49(1) s 49(2).
[22] Migration Act 49(1) s 47(2)(a).
[23] Transcript P10:L1-4.
[24] Migration Act 49(1) s 49(3).
[25] See Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 929 at [21].
[26] CB 67.
This raises the issue of jurisdiction. For the Court to have jurisdiction, there must be a reviewable decision – in this case a ‘migration decision’ within the meaning of s 5(1) of the Migration Act – before the Court. As there is no identifiable migration decision, the Court has no jurisdiction to review the Applicant’s Application.
Ground 1
Ground 1 of the Applicant’s Application does not raise any error of law, it merely sets out some facts about the Applicant and provides some background to the Applicant’s Visa withdrawal. There is no ground for the Court to review.
Ground 1 is therefore dismissed.
Ground 2
Ground 2 of the Applicant’s Application contends that the Applicant did not consent to the withdrawal of the Visa. The Applicant’s signature, dated 6 July 2018, appears on the Withdrawal Form, where the Applicant is named as ‘Applicant 2’.[27] Further, at the Final Hearing, the Applicant admitted that he had in fact signed the Withdrawal Form:
HER HONOUR: Can I take it that you agree that you did sign that document?
MR SINGH: Yes.[28]
[27] CB 65.
[28] Transcript P9, L33-35; See also Transcript P10, L1-4.
Ground 2 therefore cannot be upheld and is dismissed.
Ground 3
Ground 3 of the Application also contends that the Applicant did not consent to the withdrawal of the Visa.
For the reasons discussed in Ground 2, Ground 3 is dismissed.
Ground 4
Ground 4 of the Application also contends that the Applicant did not consent to the withdrawal of the Visa application. However, this ground goes one step further to allege that this resulted in the Delegate falling into jurisdictional error. As established in Ground 2, the Applicant did in fact consent to the withdrawal of the Visa. Therefore, there was no scope for the Delegate to make an error in law as there was no decision for the Delegate to make.
Ground 4 is dismissed.
Materiality and Futility
Finally, even if the Court had jurisdiction to conduct judicial review, the task would be futile.
The Applicant was the secondary applicant to the Visa, requiring him to satisfy clause 187 of Schedule 2 of the Migration Regulations 1994 (Cth). One of the requirements is that the Applicant be a ‘member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa’.[29] The Primary Visa Applicant validly withdrew her visa application on 3 May 2018, and as such no longer holds the Visa. The Applicant, as the secondary applicant to the Visa, therefore cannot satisfy the relevant criteria for the Visa.
[29] Migration Regulations 1994 (Cth), Schedule 2, cl 187.311(a).
Consequently, even if the Applicant had a decision capable of judicial review, it would be futile and immaterial for the Court to grant any form of relief.
CONCLUSION
The Applicant has failed to identify any jurisdictional error made by the Delegate.
In any event, the Court does not have jurisdiction to hear the Application. The evidence proves that the Applicant consented to the withdrawal of his visa application and as such the Minister has not made a decision. As there is no decision, there is nothing for the Court to review.
The Application is dismissed.
At the hearing the Minister sought costs fixed in the sum of $7,467.[30] This amount is in accordance with the costs allowed in pt.3 div.1 item 3 of sch.1 of the Federal Circuit Court Rules 2001 (Cth), which were applicable at the time of the Final Hearing. On 10 May 2023, the parties applied to the court to amend this amount, by consent, to $6,703. I accept the parties’ amendment to the costs order and accordingly, Order 2 is amended pursuant to r 17.05(2)(f) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), such that the Applicant pay the Minister’s costs fixed in the sum of $6,703.
[30] Transcript P10:L22-32.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 27 April 2023
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