Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 696
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 696
File number(s): ADG 453 of 2018 Judgment of: JUDGE BROWN Date of judgment: 24 August 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – citizen of India – Regional Employer Nomination visa – applicant invited to comment pursuant to s 359A of the Migration Act 1958 (Cth) – whether the applicant was afforded procedural fairness – no jurisdictional error establish – application dismissed with costs Legislation: Migration Act 1958 (Cth) div 5, pt 5, ss 359A, 359C, 363, 474, 479
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 (Cth) cl 187.233 in Schedule 2
Cases cited: Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267
Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413
Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 18 August 2022 Place: Adelaide Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr Cummings Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 453 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATINDER JEET SINGH
First Applicant
JAGJEET KAUR
Second Applicant
MEHAR JEET SINGH (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
24 AUGUST 2022
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to reflect “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Fourth Applicant, Gurreet Kaur, be removed as a party to these proceedings.
3.The application filed 6 November 2018 is hereby dismissed.
4.The First and Second Applicants pay the First Respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 11 October 2018. The decision confirmed an earlier decision of a Delegate of the Minister for Home Affairs, as it then was, not to grant the applicant, Satinder Jeet Singh, a Regional Employer Nomination (Permanent)(Class RN) Visa[2] pursuant to the provisions of the Migration Act 1958 (Cth).[3]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the visa”.
[3] Hereinafter referred to as “the Act”.
Mr Singh is a citizen of India, where he was born on 13 October 1979. Mr Singh is the primary visa applicant, which supports applications by his wife, Jagjeet Kaur born in India on 18 June 1985 and his son, Mehar Jeet Singh born in Adelaide, Australia on 30 October 2015. They are each citizens of India.
On 19 September 2016, Mr Arul Chettiar (“Mr Chettiar”), who is the proprietor of a business known as Malar Indian Spices, which operates a retail outlet at Old Reynella, offered Mr Singh the position of retail store manager of his Indian spices shop. Mr Singh accepted the offer.[4]
[4] See Court Book at page 94.
As a consequence, on 9 August 2016, Mr Chettiar agreed to sponsor Mr Singh, his wife and son’s Regional Employer Nomination Visa Application. On 14 December 2017, a delegate of the Minister, designated as a Senior Decision Maker Permanent Employer Sponsored Entry refused Mr Chettiar’s nomination of Mr Singh for the relevant visa. The refusal was apparently subject to a separate process of administrative review, which was ultimately unsuccessful.
The decision not to approve Mr Chettiar’s regional employer nomination was conveyed to Mr Singh in a letter from the Department dated 14 December 2017.[5] The letter contained the following statement:
Nomination Refused
The nomination submitted to the department by CHETTIA, ARUL SAMBANDAM listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision:
1.Withdrawing your application
As there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing. By withdrawing your application you give up any rights to apply for a merits review at the Administrative Appeals Tribunal. A request for a refund can be submitted but will only be granted in very limited circumstances.
2.Refusal of application
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused you are entitled to apply for a merits review of this decision with the Administrative Appeals Tribunal. A request for a refund will not be approved.
[5] See Court Book at page 107.
Mr Singh did not withdraw his application or respond to the invitation to respond to the letter of 14 December 2017. In these circumstances, another Ministerial Delegate was mandated to deal with Mr Singh’s outstanding visa application, which was dependent upon the acceptance of the nomination of Mr Chettiar, as an approved employer, which had been declined.
The relevant decision was made by another delegate of the Minister on 5 February 2018. The granting of the visa is subject to the satisfaction of criteria specified in clause 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth).[6] The relevant clause reads as follows:
[6] Hereinafter referred to as “the Regulations”.
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulations 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(5) The position is still available to the applicant.
(6)The application for the visa is made not more than 6 months after the Minister approved the nomination.
The Ministerial Delegate determined that Mr Singh had not satisfied the relevant criteria, set out in clause 187.233, particularly given the refusal of the nomination of Mr Chettiar. In these circumstances, the Delegate determined as follows:
An application for Regional Sponsored Migration Scheme (Class RN) visa was lodged by Mr Satinder Jeet Singh on 01/11/2016 in relation to an appointment of ‘Retail Manager (General) (ANZSCO 142111)’. Mr Singh claimed to satisfy the criteria for subclass 187 visa under the ‘Direct Entry Stream’.
On 13/12/2017 the nomination lodged by CHETTIAR, ARUL SAMBANSAM was refused by a delegate of the Minister for Home Affairs, being the nomination referred to in paragraph 187.233(1).
Applying the provision of natural justice, on 14/12/2017 the department sent a letter to Mr Singh inviting him to make a comment on the nomination refusal and the 28 days prescribed time was given.
The prescribed time expired and no response was received.
As the appointment has been refused, criterion 187.233(3) is not met.
As a result, I am not satisfied that the requirements of criterion 187.233 have been met.
No other criteria have been assessed.[7]
[7] See Court Book at page 124.
Given the failure of Mr Singh’s application, the applications of his wife and son were also rejected on the same grounds. As a consequence of this decision, on 14 February 2018, Mr Singh sought to review the decision of the Ministerial Delegate in the AAT.
In the light of this application, on 14 September 2018, Mr Singh, Ms Kaur and Master Singh were invited to comment, to the Tribunal, in respect of the failure of the nomination provided by Mr Chettiar.[8]
[8] See Court Book at page 137.
In the relevant letter, they were also informed that Mr Chettiar’s application to review this decision, in the AAT, had recently been dismissed, with the decision not to accept his nomination confirmed. Accordingly, Mr Singh did not have the support of a nominated employer.
In this context, Mr Singh and his family were advised that this information was relevant as it indicated that the employment position, on which the relevant visa application depended, was not the subject of an approved nomination and, as such:
This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.[9]
Essentially, Mr Singh was advised that the success of his own visa application depended on the successful nomination of Mr Chettiar and without it his application was futile. He was formally requested to comment upon this salient information.
[9] See Court Book at page 139.
The letter was sent to Mr Singh pursuant to the provisions of section 359A of the Act, which requires the Tribunal to issue invitations to applicants affected by it decisions to provide information to it and provide comment on such information or other salient information before the Tribunal.
In this context, Mr Singh was invited to provide any comments on or before 28 September 2018. Mr Singh does not dispute that no further information was provided by him or on his behalf. The relevant letter went on to indicate as follows:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[10]
[10] See Court Book at page 140.
The failure to provide this information or comment engaged section 359C of the Act, which reads 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.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
Given these provisions and the statutory consequence which flowed from them, it is the position of the Minister that the Tribunal was entitled to deal with Mr Singh’s application without taking any evidence from him pursuant to the provisions of the Act in order to complete the review with which it was tasked.
The letter referred to above, indicates that the Tribunal advised Mr Singh of the statutory consequence of his failure not to respond to the information request and that it would result in him not being able to appear before the Tribunal itself and provide evidence to it. In procedural terms, he was advised of the significance of the request for further information in the context of the centrality of the failed nomination application of his employer sponsor.
In these circumstances, on 11 October 2018, the Tribunal determined Mr Singh’s application in his absence. It affirmed the Delegate’s decision on the basis that his position was not subject to an approved Ministerial nomination. The formal finding was as follows:
The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).
As a consequence the Tribunal also finds that the secondary applicants are unable to satisfy cl.187.311 as members of the family unit of a person who holds a subclass 187 visa.
Therefore, cl. 187.233 is not met.[11]
[11] See Court Book at page 146.
The Tribunal’s jurisdiction was also subject to the proviso contained in section 363A of the Act, which reads as follows:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Essentially, once Mr Singh had forfeited could not, of its own volition reinstate the right and nor was it under any obligation to do so. the right to be invited to appear, the Tribunal
In general terms, once Mr Singh had not responded to the AAT’s letter requesting comment, the Tribunal itself could not provide him, of its own volition, with a further opportunity to provide comment or to appear before it to make submissions or evidence.
In addition, it is the contention of the Minister, in the current proceedings, that it would have been futile for such an opportunity to be given, as, with the rejection of Mr Chettiar’s employer nomination, Mr Singh’s application had no possibility of being successful as such a nomination was an essential condition for the grant of the visa to him.
THE GROUNDS OF REVIEW
The applicant commenced the current proceedings, before this court on 6 November 2018. He has prepared his own application which seeks an order that the decision of the Tribunal be quashed. The application specifies only one ground of review, as follows:
The Tribunal did not provide me with any opportunity to present myself.
The application is supported by a brief affidavit, the salient paragraphs read as follows:
I haven’t got chance to present myself.
I am a genuine candidate with no adverse information in the immigration department.
On 31 January 2019, a Registrar of the court fixed the matter for hearing on a date to be advised. After a hiatus of approximately three and a half years, the application was so listed by order of the Registrar made on 6 June 2022.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
CONCLUSIONS
The applicant’s claim appears to be that he was denied procedural fairness because he was not given an opportunity to appear before the AAT and, as a corollary of this, the decision is vitiated by jurisdictional error. This contention, in my view, cannot be sustained.
Division 5 of Part 5 of the Act delineates how the AAT is to conduct reviews of administrative decisions referred to it. This codifies the obligations of the Tribunal and provides the parameters of its obligations to invite applicants to appear before it.
The relevant provisions qualify the obligation of the Tribunal to proffer such invitations. If there is no response to an invitation to provide comment, the obligation to issue an invitation to give evidence falls into abeyance and cannot be re-enlivened because of the provisions contained in section 363A.
In the present matter, the AAT did offer an invitation to the applicant to provide further information to it, which was not taken up. The relevant invitation, in my view, correctly delineated what were the consequences of a failure to respond in respect of how any relevant application would thereafter proceed.
The reason the applicant was invited to provide comment arose from the fact that axiomatically, given the failure of Mr Chettiar’s nomination application, Mr Singh’s application for the relevant visa was rendered futile and his appearance before the Tribunal could not achieve anything of utility.
Essentially, as a consequence of the combination of these various provisions, the AAT had no authority to permit Mr Singh to appear before it, if he failed to respond to the information offered to him, in the terms stipulated. This was an essential pre-condition to him being able to appear before the Tribunal and in any event such an appearance would have served no purpose.
For the reasons outlined above, it cannot be said that the decision is characterised as being procedurally unfair. Following the failure of the applicant to respond to the invitation proffered to him pursuant to section 359A, the Tribunal was granted a discretion to proceed with his application for review, in his absence, pursuant to the power conferred on it pursuant to section 359C.
The Full Court discussed the effect of these provisions in Hasran v Minister for Immigration & Citizenship:[12]
Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.[13]
[12] Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413.
[13] Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413 at [27] – [29].
These comments are apposite to the current matter. Accordingly, even if it had wished to, the Tribunal had no authority to invite the applicant to appear before it. In these circumstances, the contention that the applicant has been unlawfully deprived of the opportunity to appear before the Tribunal and present his case further is misconceived, once he had disregarded the invitation to provide comment.
In these circumstances, in my view, the AAT was entitled to conclude that the applicant was not the subject of approved nomination. Indeed, on the evidence before it, this was the only logical and reasonable conclusion to which it could have come.
The applicant was advised that this was fatal to his visa application and was asked to provide comment upon it. He did not do and so lost his right to appear before the Tribunal. In any event, in my view, such an opportunity would not have affected the outcome of the proceedings.
The absence of any adverse information concerning the applicant was irrelevant to the determination of whether the applicant satisfied the conditions stipulated in clause 187.233 of the Regulations. The applicant’s lack of an approved nominated meant that the Tribunal made the only decision lawfully open to it.
The applicant had no standing to challenge the Ministerial Delegate’s decision not to approve Mr Chettiar’s employer nomination. In any event, in separate proceedings, Mr Chettiar’s review application has been unsuccessful and is not currently subject to judicial review. He is out of time to bring such an application. In these circumstances, Judge Kendall pointed out in Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs:[14]
The applicants have no standing to challenge the sponsor’s decision: the Act, s 479(a) and 486C. For this Court to have the power to review the sponsor’s decision, an application had to be lodged by the sponsor. That has not occurred.[15]
[14] Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95.
[15] Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 at [40].
Accordingly, even if the court were to accede to the current application and quash the relevant decision and return it to the AAT for re-consideration, it could serve no purpose as Mr Singh cannot satisfy the relevant visa condition contained in clause 187.233. In addition, there is no alternative employer available given that the relevant nomination must apply to a particular job with a particular employer at a particular point of time.[16]In this case, it is axiomatic that this time has passed for the current applicant.
[16] See Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267 at [88].
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
The second respondent fell pregnant with her and Mr Singh’s second child Gurreet Kaur after the proceedings in the AAT had concluded. Subsequently, she was jointed as a fourth respondent in the proceedings before this court. The Minister seeks that she be disjoined. As she was not a party to the proceedings subject to review in this court, it is clear that she cannot be a party in these proceedings.[17]
[17] See Migration Act 1958 (Cth) at section 479(a).
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 24 August 2022
SCHEDULE OF PARTIES
ADG 453 of 2018 Applicants
Fourth Applicant:
GURREET KAUR
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3
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