Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 865
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 865
File number(s): BRG 346 of 2022 Judgment of: JUDGE COULTHARD Date of judgment: 11 September 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal –Regional Employer Nomination (Permanent) (Class RN) visas–whether the decision of the Tribunal is affected by legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed Legislation: Migration Act 1958 (Cth) ss 359, 360, 363, 476
Migration Regulations 1994 (Cth) cl 187.233(3) in Schedule 2
Cases cited: Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZKTI & Anor (2009) 238 CLR 489
MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506
Odero v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 910
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Singh v Minister for Immigration and Border Protection [2014] FCA 937
SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 26 August 2024 Date of hearing: 26 August 2024 Place: Brisbane Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Helsdon appeared on behalf of the First Respondent. ORDERS
BRG 346 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVTAR SINGH
First Applicant
HARBANS KAUR
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the first applicant’s application for a Regional Employer Nomination (Permanent) (Class RN) visa.
BACKGROUND
Application for a Regional Employer Nomination Visa
The first applicant is a citizen of India. On 29 March 2019, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“the visa”)
(Court Book (“CB”) 1-18). The first applicant’s spouse (“the second applicant”) was included in the application as a member of the first applicant’s family. At the time of the application, Class RN contained one subclass: Subclass 187 visa. The applicant sought the visa in the Direct Entry stream to work in the nominated position of Fruit or Nut Gower – ANZSCO Code:121213. The nominating employer was AR & MK Agri Pty Ltd (“the nominator”).
The first applicant was informed by the Department of Home Affairs by letter dated 2 September 2019 that the nomination submitted by the nominator had been refused and that accordingly his visa application could not be approved (CB 29-33). By that letter, the Department gave to the first applicant an opportunity to comment on or withdraw his visa application. The first applicant did not respond or withdraw the application.
On 9 October 2019, the delegate refused to grant the first applicant the visa on the basis that the first applicant did not meet cl 187.233(3) in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he was not the subject of an approved nomination (CB 40-43). Accordingly, the delegate was also not satisfied that that the second applicant met
cl 187.311 of Schedule 2 to the Regulations because she was not a member of the family unit of a person who held a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of visas.
Application for review in the Administrative Appeals Tribunal
On 25 October 2019, the applicants lodged with the Tribunal an application for review of the decision of the delegate (CB 44-45).
On 28 October 2019, the Tribunal acknowledged receipt of the application for review and advised the applicants that should they wish to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 48-49). The applicants did not respond to that invitation.
On 17 February 2022, the Tribunal notified the applicants that the application would be heard by telephone on 29 March 2022 (“the hearing invitation”) (CB 51-54). The hearing invitation requested the applicants to provide all documents they intended to rely upon to support their case and referred the applicants to the decision made by the delegate setting out the reasons for the decision.
The applicants completed the Response to Hearing Invitation which had accompanied the hearing invitation (CB 55-58). The applicants confirmed that they would take part in the hearing. In response to the question as to whether there was any issue that may affect the applicants’ ability to participate in the hearing related to a health problem or disability, it was stated that “I am currently experiencing stress and anxiety symptoms”.
On 11 March 2022, the Tribunal sent a letter to the applicants inviting them to comment or respond to particulars of information provided in that letter (“the s. 359A invitation”) (CB 61-62). The particulars provided were that the application for approval of the nominated position by the nominator had been refused by the delegate, that the nominator had applied for review of that decision but had now withdrawn that application. The letter went on to explain that this information was relevant to the review by the Tribunal because it is a requirement of the grant of the visa that the position specified in the visa application be the subject of an approved nomination. The applicants were invited to give comments or respond.
By email sent to the Tribunal on 25 March 2022, the applicants’ Migration Agent advised the Tribunal that the first applicant was not aware that his employer had withdrawn their review application (CB 63-70). A request for an adjournment of the hearing was made so that the Migration Agent could make detailed submissions (“the first request for an adjournment”). In the email, the Migration Agent also advised the Tribunal that the first applicant was “very unwell and is undergoing medical treatment”. A medical certificate dated 23 March 2022 was attached which stated that the first applicant was “unfit for any hearing as he is suffering from, anxiety, depression and stress, he is being referred to a psychologist and psychiatrist for further advise (sic) as he has not responded to medications”. What appears to be the referral was attached.
By letter dated 29 March 2022, the Tribunal granted the first request for an adjournment and rescheduled the hearing to 3 May 2022 by telephone (CB 71-75).
By email sent to the Tribunal on 29 April 2022, the applicants’ Migration Agent requested an adjournment of the postponed hearing on the basis that the first applicant had advised that “he is suffering from severe depression and anxiety and is unable to participle in the hearing due to his health issues” (“the second request for an adjournment”) (CB 76-80). A referral to a medical practitioner and some pathology results were attached.
By letter dated 3 May 2022, the Tribunal granted the second request for an adjournment and rescheduled the hearing to 19 May 2022 by telephone (CB 83-85).
By email sent to the Tribunal on 17 May 2022, the applicants’ Migration Agent requested an adjournment of the further postponed hearing on the basis that the second applicant had advised that the first applicant is “very unwell and suffering from severe depression and anxiety’ and that the applicants would not be able to participate in a hearing ‘at this stage” (“the third request for an adjournment”) (CB 86). The Migration Agent advised that the first applicant had his first session with a psychiatrist scheduled for 22 June 2022.
By letter dated 17 May 2022, the Tribunal responded to the third request for an adjournment (CB 89-90). The Tribunal referred to its request for information made on 11 March 2022 (being the s 359A invitation) noting that despite a request for an extension of time until 25 March 2022 to comment or respond, no information had been received by the Tribunal. An extension of time to provide the information was granted until 24 May 2022. The Tribunal also requested that in light of the first applicant’s ongoing medical condition he provide a psychologist/psychiatrist report on his medical condition which the report was to include the first applicant’s ability to attend a telephone hearing. The first applicant was also requested to provide his consent to the Tribunal determining the matter on the papers.
By a separate letter also dated 17 May 2022, the Tribunal advised the applicants that the hearing scheduled for 19 May 2022 had been postponed (CB 93).
By email sent to the Tribunal on 24 May 2022, the applicants’ Migration Agent sent a submission in reply to the s 359A invitation (CB 94-96).
By email sent to the Tribunal on 22 June 2022, the applicants’ Migration Agent advised the Tribunal that the first applicant had seen a psychiatrist, and that the first applicant was booked to see the psychiatrist again on 4 August 2022 (CB 97-105). A medical certificate from the psychiatrist dated 22 June 2022 was attached which stated that the first applicant was receiving medical treatment and that for the period from 29 April 2022 to 22 August 2022 he will be ‘unfit to continue his usual occupation’. This information was said to be provided ‘for the consideration of the Tribunal and further necessary action on the matter’.
By letter dated 5 July 2022, the Tribunal responded to the email sent on 22 June 2022 by the applicants’ Migration Agent (CB 107). The Tribunal advised the applicants that it was scheduling a Microsoft Teams video conference hearing on a date to be advised. The letter went on to state that if the first applicant could not attend the video conference hearing due to his medical condition, he was requested to provide the Tribunal with a psychological report from his psychiatrist stating that he is unable to attend a video conference hearing from his own location. The Tribunal advised that if, alternatively, the first applicant did not want to attend a hearing he could request the Tribunal to make a decision on the papers. The applicants were requested to respond with the information by 15 July 2022.
The applicants’ Migration Agent responded by email sent to the Tribunal on 15 July 2022 (CB 107). The Migration Agent advised that the first applicant was not fit to attend a video conference hearing because of his medical condition and that he would consult with the psychiatrist at the appointment scheduled for 4 August 2022 as to the possibility of a video conference and update the Tribunal accordingly.
The Tribunal did not respond to that email.
On 22 July 2022, the Tribunal affirmed the delegate’s decision. The Tribunal provided written reasons (“the Tribunal decision”) (CB 115-124).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out a summary of the procedural aspects of the matter, the Tribunal proceed to explain why it had reached the conclusion that it was entitled to proceed to make a decision without taking any further action (Tribunal decision [17] - [29]).
The Tribunal stated that in the circumstance where the applicant had been issued with a
s 359(2) invitation to provide information within the prescribed period the Tribunal was permitted, pursuant to s 359C(1) of the Migration Act 1958 (Cth) (“the Act”), to make a decision without taking any further action (Tribunal decision [17]). The Tribunal went on to state that pursuant to s 360(3) of the Act, as a consequence of the failure to provide the requested information, the applicant was not entitled to appear before the Tribunal (Tribunal decision [18]).
The Tribunal was there referring to the letter from the Tribunal to the applicants dated 5 July 2022 (Tribunal decision [19]). The Tribunal stated that the (first) applicant had not provided the specific information sought by the Tribunal in the letter of 5 July 2022 because he had not provided a medical report from his treating psychiatric medical practitioner concerning his capacity to attend a video hearing (Tribunal decision [20]).
The Tribunal concluded that as the applicant had failed to provide the information requested in its letter of 5 July 2022 it did not have the power to permit the applicant to appear before it. The Tribunal referred to s 363A of the Act and the decision in Hasran v Minister for Immigration and Citizenship [2021] FCAFC 40 in support of that conclusion (Tribunal decision [19]).
Although positioned under the heading ‘Consideration of Claims and Evidence’, the Tribunal went on to further set out its reasons as to why the information provided (by the applicants’ Migration Agent) did not provide the information requested by the Tribunal in its letter of 5 July 2022 (Tribunal decision [23]). It is noted here that the Tribunal referred to a response from the applicants’ Migration Agent of 5 July 2022 rather than to the response from the applicants’ Migration Agent of 15 July 2022, There was no response of 5 July 2022. The Tribunal referred to the information that was provided as not being in compliance with s 359(2) and s 359A of the Act (Tribunal decision [23]). Something further will be said later about this latter point.
The Tribunal considered that the medical certificate dated 22 June 2022 did not satisfy the request for information in the letter of 5 July 2022 on the basis that the certificate was generic, stating that the first applicant was subject to medical treatment and that for the period from 29 April 2022 to 22 August 2022 he will be ‘unfit to continue his usual occupation’ (Tribunal decision [26] and [27]). The Tribunal referred to the principles in Singh v Minister for Immigration and Border Protection [2014] FCA 937 at [28] - [30] per Collier J in support of that conclusion (Tribunal decision [28] - 29]).
The Tribunal then went on to consider whether the first applicant met the criteria in cl 187.233 of the Regulations. The Tribunal concluded that it was not satisfied on the evidence that the applicant had an approved standard business sponsor for the nominated occupation of Fruit or Nut Grower ANZSCO Code: 121213 and that therefore he did not meet the requirements of Regulation 187.233(3) (Tribunal decision [36]). The Tribunal therefore concluded that
cl 187.233 of the Regulations was not met (Tribunal decision [37]). On the basis that the first applicant had not met the criteria, the Tribunal concluded that the second applicant had not met the requirements of cl 187.311 of the Regulations (Tribunal decision [39]).
As a consequence, the Tribunal affirmed the delegate’s decision (Tribunal decision [40]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 15 August 2022. The applicants also filed, on 15 August 2022, an Affidavit of the first applicant the contents of which were largely identical to the grounds of review in the application. On
1 August 2024, procedural orders were made. The applicants were ordered to file and serve on or before 8 August 2024 any amended application, written submissions and any additional evidence. The first respondent was ordered to file and serve on or before 15 August 2024 any written submissions and any additional evidence. If the applicants were self-represented, the first respondent was also ordered to file an Affidavit of service as to service of the court book, the first respondent’s submissions and any additional evidence filed by the first respondent. The applicants did not file an Amended Application, any further Affidavits or written submissions. The first respondent filed written submissions. The first respondent also filed an Affidavit of service as to service on the applicants of the written submissions and the Court Book.
The grounds of review set out in the application are (without alteration):
1.That I am an Indian national currently living in Australia.
2.That I applied for a Regional Employer Nomination (Permanent) subclass 187 (Regional Sponsored Migration Scheme) visa on 29/03/2019.
3.That I sought the above-mentioned visa in the Direct Entry Stream, to work in the nominated position of Fruit or Nut Grower -ANZSCO Code: 121213.
4.That I was represented by Migration Agent Natale Menniti MARN 1066082 with my visa application. Natale Menniti also represented my employer AR & MK Agri Pty Ltd with the nomination application to Department of Immigration and Border Protection.
5.That on 29/08/2019 the nomination application was refused by the delegate of the Minister for Immigration and Border Protection.
6.That the delegate further refused to grant my visa application on the basis that I did not meet cl187.233 of Schedule 2 to the Regulations because the applicant did not have an approved nomination for the position of Fruit or Nut Grower-ANZSCO Code:121213.
7.That on 25/10/2019 I submitted an application for merits review by the Administrated Appeals Tribunal.
8.That I was advised by my employer that they are seeking a merits review of the refusal of nominated position and asked to continue with the employment.
9.That I was under the impression that the employers are pursuing and seeking a merits review of the decision to refuse to approve the nominated position hence I kept working for the employer.
10.That on 11/03/2022, the Tribunal wrote to me to comment on or respond to information. The particulars of the information are: "The application for approval of the nominated position made by AR & MK Agri Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but they have now withdrawn that application for review. This means that the nominator's application for the nominated position has not been approved." The Tribunal further sought my comments and/ or response to this information as the above information which the Tribunal consider would, subject to, my comments or response, be the reason, or a part of the reason, for affirming the decision under review.
11.That on 25 March 2022, I responded to the Tribunal's invitation through my new representative and explained that my employer did advise me they are seeking a merits review of the nomination refusal and asked me to continue working for them. I explained to the Tribunal that my employer or previous representative who was also representing my employer for the nomination side of review, did not inform me of the withdrawal of the review application for nomination decision. They kept me under the impression that they are still seeking the merits review of the nomination refusal and made me work dishonestly and withdrew their nomination. I got very upset and stressed due to my employer and my previous representative's actions by not disclosing the truth to me that they are not seeking any merits review for my nominated position. The owners of my company, namely Andrew Singh Bains and Michael Bains, has been bullying and harassing me at work for almost two years. They made me work seven days a week without any day off straight more than a year. My son Harpreet Singh was also working in the business as an independent contractor, and they did not pay him for the work completed at their farm. When Harpreet left working at their farm due to non-payment of contractor wages, they started harassing me to pressurize the family that Harpreet must return to work at their farm. Their everyday harassing and bullying turned into violent manhandling one day when Andrew tried to slap me and hit me at work.
12.That I further advised the Tribunal that business owners Andrew Singh Bains also asked me to reimburse them by working more hours as they paid towards sponsorship for me. This is a clear violation of the sponsorship obligations under the Australian migration law. They made me to pay them AUD 10,000 in cash towards the cost of sponsorship. They threatened me to withdraw their papers if I do not agree to their demands. They did not pay me correctly for the work done at their farm. I also advised the Tribunal that my employer knowingly and willingly did not provide the correct paperwork in support of the nomination application as they wanted the nomination application to be refused for want of correct documentation and linger my matter at the appeals so they can exploit my situation and make me work more than my stipulated hours by misleading me to believe that they are actually seeking a merits review of the nomination matter and they will support the nomination with proper and correct paperwork and also to pressurize my son to work for them. I advised the Tribunal that my employer kept me in the dark by not telling me the truth.
13.That I advised the Tribunal and provided evidence of my ongoing treatment for depression and anxiety on two occasions., wherein my treating doctor clearly advised that I am not fit to appear for the Tribunal hearing given to my current health and mental concerns. I advised that I am going to see the psychiatrist on 04/08/2022 and will ask the doctor for a feasibility of video conference hearing.
14.That on 20/07/2022, the Tribunal affirmed the decision not to grant the visas and closed our matter without considering my request for a postponement of hearing ahead of my scheduled appointment with the psychiatrist without waiting for the treating doctor's assessment of my current mental health.
15.That I believe the Tribunal acted in an arbitrary manner by ignoring the medical evidence and merits of the matter. I further advice I have been denied a fair hearing and opportunity to put my case effectively and neglected to weigh and balance the circumstances and deliver justice.
16.That I pray to the Hon'ble Court to intervene and judicially review the case as the decision of the Tribunal is flawed and contaminated by a jurisdictional error. I pray the Hon'ble Court to deliver me justice in my matter.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error: (see; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [13] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (“LPDT”)).
The first applicant appeared in person unrepresented. The first applicant was assisted by an Interpreter who speaks Punjabi and English.
The first applicant did not have with him in Court the application, his own Affidavit or any of the material with which he had been served. Accordingly, the Court ensured that the first applicant had a copy of the Application, his Affidavit, the written submissions of the first respondent and a copy of the Court Book. Before the hearing commenced, the applicant was given time with the Interpreter to review the materials. At the commencement of the hearing, the first applicant confirmed to the Court that he understood the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to do so.
As the first applicant was unrepresented, the Court explained to the first applicant that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicants’ visa application. It was explained that the Court’s task is instead to determine whether there was a legal or procedural error by the Tribunal in its decision making. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The applicants’ grounds of review recite the background to the application for the visa and concerns the first applicant has about the conduct of the nominator both in respect of the nomination process and as to the terms and conditions of the employment. Those concerns cannot form the basis for a ground of review. Some of the grounds otherwise ask the Court to engage in merits review.
The only paragraphs in the application from which a ground of review can properly be extracted are paragraphs 14 and 15. From those paragraphs the Court understands the applicants’ case to be that the Tribunal denied the applicants a fair opportunity to put their case when it did not adjourn the hearing after receiving the email from the applicants’ Migration Agent on 15 July 2022. As noted above, in that email the Migration Agent advised the Tribunal that the first applicant was seeing his psychiatrist again on 4 August 2022 and would afterwards update the Tribunal as to the possibility of a video conference. The Tribunal did not respond to that email and proceeded to deal with the matter without a hearing on 20 July 2022.
For the reasons set out below, the Court accepts the first respondent’s submissions (“FRS” at [27]-[31]) that the grant of relief would be futile. Accordingly, even if persuaded that there had been a jurisdictional error, the application should be dismissed. Notwithstanding that view, the Court has first considered the applicants’ ground of review that they were denied a fair opportunity to be heard.
Whether the applicants were denied a fair opportunity to be heard
As noted above, the Tribunal accommodated three requests by the applicants to adjourn the hearing and extended time for the applicants to respond to the s 359A invitation.
The first applicant was unable to assist the Court in explaining how it was he said the applicants were not given fair an opportunity to be heard but said that what he wanted was “more time” so that he could “earn money so I can get my tickets, so I can manage my rent. So I can get money from here because from last 28 – 29 years I have been living here in Australia and all my money went into the sponsors” (Court Transcript at [40]).
The operation of ss 359, 359C, 360 and 363A of the Act
Although the first applicant was not able to assist the Court by articulating the particulars of his complaint, fairly understood the applicants’ complaint must be taken to focus on the Tribunal’s decision to proceed to a hearing despite what the applicants said in the letter to the Tribunal of 15 July 2022. This requires an examination of whether the Tribunal was correct in its assessment that s 359C of the Act entitled it to make a decision on the review without a hearing.
In this regard, acknowledging the role of model litigant, the first respondent accepts that the Tribunal’s decision contains some irregularities but submitted that these irregularities do not amount to jurisdictional error (FRS [33]).
Section 359 of the Act provides:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 359C of the Act provides:
Failure to give information, comments or response in response to written invitation
(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.
Section 360(1) of the Act requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review. Subsection 360(2)(a) of the Act provides that the requirement in
s 360(1) does not apply if, inter alia, ss 359C(1) or (2) of the Act applies.
Subsection 360(3) of the Act goes on to provide that if any of the paragraphs in ss 360(2) of the Act apply, the applicant is not entitled to appear before the Tribunal.
As a consequence of these provisions, in the event that an applicant does not give the information requested by the Tribunal pursuant to s 359, the applicant is not entitled to appear and the Tribunal was permitted to make a decision without taking further action to obtain the requested information from an applicant: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; (2017) 251 FCR 110 at [53] - [57] per North, Bromberg and Bromwich JJ (“Singh”) as to the operation of s 360(3) of the Act in the context of an invitation pursuant to s 359A of the Act).
As the first respondent correctly submitted, the task for the Court is two-fold. The first issue is whether the Tribunal was correct in deciding that its letter of 5 July 2022 was a request for information made pursuant to s 359 of the Act. The second issue is whether the Tribunal was correct in finding that the applicants had not given the information requested (FRS [36]). If the Tribunal was correct, then ss 359C and 360(3) of the Act would be engaged.
In its decision, the Tribunal describes the letter of 5 July 2022 as being issued “pursuant to s 359(2) and 359A” of the Act. This is plainly not the case for the reasons advanced in the first respondent’s submissions (FRS [37]). Nothing can turn on this misdescription of the request. As stated above, the applicants’ Migration Agent responded to the s 359A invitation. Accordingly, the Tribunal clearly cannot be referring to the s 359A invitation but is referring instead to the request for information in the letter of 5 July 2022. That is apparent from the Tribunal’s decision.
As the first respondent identifies in its written submissions, the letter of 5 July 2022 did not comply with the prescribed period for giving the information, being 14 days after receipt of the invitation: (FRS at [38]), (see; r 4.17(4) of the Regulations). Accordingly, the Tribunal could not have been satisfied that ss 359B(2) and 359C(1)(a) of the Act were met (FRS [38]). The first respondent referred the Court to SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 (“SZEXZ”) at [49] per Jacobson J. There no prejudice arose in circumstances where an applicant was given more time than they were entitled to, provided the information and a hearing took place in accordance with the Act. The circumstances here are, obviously, different. Nevertheless, the decision makes clear that whether a breach amounts to jurisdictional error it is necessary to consider whether in the particular circumstances the breach had that result: SZEXZ at [48] per Jacobson J. The Court is satisfied that this breach did not constitute a jurisdictional error on the part of the Tribunal. The applicants’ Migration Agent responded to the letter of 5 July 2022 by email on 15 July 2022. The Court accepts that this indicates that there was no prejudice to the applicants in the request not complying with the prescribed period.
During the course of oral submissions, the Court asked the first respondent’s solicitor whether information for the purposes of s 359 of the Act was to be limited to issues arising in relation to the decision under review. The first respondent submitted that ‘information’ extends to any information the Tribunal requires in order to undertake a review including as to the capacity of an applicant to appear. In support of that submission the first respondent referred the Court to the High Court decision of Minister for Immigration and Citizenship v SZKTI & Anor (2009) 238 CLR 489 at [37] per French CJ, Heydon, Crennan, Kiefel, and Bell JJ. Having regard to the fact that the word information is not accompanied by any words of description or limitation, the Court finds that the information requested in the letter of 5 July 2022 is information for the purposes of s 359 of the Act.
The next question is whether the applicants failed to “give the information” requested.
Section 359 of the Act is directed to the getting of information. Section 359C of the Act provides what the Tribunal may do if the applicant does not give the information. The first respondent’s submission is that whilst the applicants responded to the letter of 5 July 2022, they did not give the specific information requested (FRS [42]). The information requested was a psychological report stating that the first applicant was unable to attend a video conference. In reply, the email of 15 July 2022 stated: “he is not fit to attend a video conference hearing as he is not fit due to his medical condition” [CB 109].
The Court agrees with the first respondent’s submission that the reply does not give the information requested (FRS [43]). The applicants explain why the first applicant could not attend a hearing by video conference but do not provide a report from the first applicant’s psychiatrist stating that he is unable to attend a video conference from the first applicant’s location. The reply did not provide any medical report.
Accordingly, having regard to the operation of ss 359, 359C and 360(3), the Court concludes that the Tribunal did not fall into jurisdictional error when it proceeded to deal with the review without holding a hearing on the basis of the applicants’ failure to give the information requested in the letter of 5 July 2022.
Further, the applicants’ failure to give the information requested in the letter of 5 July 2022 had the effect of attracting the cascading operation of ss 359C(1), 360((2)(c) and ss 360(3) of the Act which enlivened the operation of s 363A of the Act: (see; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”) at [27] per Jacobson, Gilmour and Foster JJ). The effect of s 363A of the Act is that the Tribunal no longer had a discretion to permit the applicants to appear at an oral hearing: (see; Hasran at [29] - [32] per Jacobson, Gilmour and Foster JJ).
Whether the applicants were otherwise denied a fair opportunity to put their case
Although not clearly articulated by the applicants, it is still necessary to consider whether the applicants were otherwise denied a fair opportunity to put their case.
The cascading operation of ss 359C(1), 360(2(c), 360(3) and 363A does not remove the entitlement an applicant has to put a written statement and arguments to the Tribunal pursuant to s 358 of the Act: (see; Singh at [59] per North, Bromberg and Bromwich JJ). However, provided the Tribunal discharges its obligations to consider statements or arguments made by an applicant, s 358 does not constrain the Tribunal from completing and finalising its review: (see; Singh at [60] per North, Bromberg and Bromwich JJ).
The s 359A invitation invited the applicants to respond to and provide comment on the determinative issue, that is, that the application for approval of the nominated position by the nominator had been refused by the delegate and that the nominator had withdrawn its application for review of the delegate’s decision. The applicants’ Migration Agent made a submission in response to that invitation. The matters raised in that response were considered by the Tribunal (Tribunal decision [32] - [36]).
Finally, the Court considered whether nevertheless the Tribunal fell into jurisdictional error in not adjourning the hearing based on what was said in the email of 15 July 2022 from the applicants’ Migration Agent and having regard to the medical certificate dated 22 June 2022 that had already been provided by the first applicant’s psychiatrist. The applicants said that the first applicant was seeing his psychiatrist again on 4 August 2022 at which time he would consult with the psychiatrist about the possibility of a video hearing and update the Tribunal accordingly.
On balance, the Court is satisfied that the applicants were seeking an adjournment of the hearing.
Applying the reasoning in Singh (at [59] per North, Bromberg and Bromwich JJ), the cascading operation of ss 359C(1), 360(2(c), 360(3) and 363A also does not remove the Tribunal’s discretion pursuant to ss 363(1)(b) to adjourn a review from time to time and thereby provide an applicant with more time to provide submissions and evidence.
Care must be taken in considering whether the Tribunal acted in a way which was legally unreasonable in not adjourning the hearing to give the first applicant the opportunity to consult with his psychiatrist. There is a considerable body of authority on what is comprehended by legal unreasonableness in the exercise of a discretionary power: (see; Minister for Immigration and Citizenship v Li [2013] HCA 18). The question is whether the decision maker was acting within the scope of their statutory authority: (see; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [54] per Gageler J). This does not involve the Court substituting its view as to how a discretion should have been exercised: (see; SZVFW [58] per Gageler J).
This is not a case in which the Tribunal put the applicants on notice that a failure to give the information requested in the letter of 5 July 2022 would permit the Tribunal to make a decision on the review without any further action being taken to obtain the applicants’ views. However, that observation is to be considered in the context where there was nothing in what was said in the letter of 15 July 2022 to suggest to the Tribunal that the applicants had further evidence or arguments that they wanted the Tribunal to consider.
In the circumstances, the Court is not satisfied that the Tribunal exercised its discretion in a way which was legally unreasonable in not giving the applicants a further opportunity to participate in the review. The hearing had been postponed on three occasions to accommodate the first applicant’s inability to attend for health reasons. The applicants were given an opportunity to provide material or written arguments in response to the Tribunal’s letter of 29 October 2019. The applicants were then given an opportunity to respond to the s 359A invitation and did so through their Migration Agent.
In any event, even if the Court were to conclude that it was legally unreasonable for the Tribunal not to give the applicant more time, the inquiry does not end there. The second aspect of the inquiry in a case such as this is whether the error meets the threshold of materiality: (see; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot JJ).
The sole issue for the Tribunal was whether the first applicant was the subject of an approved nomination as required by cl 187.233 in Schedule 2 of the Regulations. The first applicant was not the subject of an approved nomination.. Clause 187.233 does not provide any discretion on the part of the Tribunal to consider other factors: (see; Odero v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 910 (“Odero”) at [53] – [56] per Kendall J). Accordingly, had the applicants been given more time there is no realistic possibility that they could have made any submissions or produced any evidence that could have changed the outcome.
Accordingly, the Court concludes that in not giving the applicants ‘more time’ the Tribunal did not fall into jurisdictional error.
Futility
Even were the Court to have found that the Tribunal fell into material jurisdictional error, there is no reasonable prospect that the applicants’ visa applications will succeed. If the Tribunal’s decision were quashed and the Tribunal were thereby obliged to reconsider the matter, the Tribunal would have no option but to affirm the delegate’s decision.
As already stated, the nominator’s application was not approved by the delegate and a subsequent application by the nominator for merits review to the Tribunal was withdrawn. Accordingly, the applicant could not satisfy the criterion in cl 187.233(3) of the Regulations. In Singh, the Full Court of the Federal Court held that “the position” referred to in
cl 187.233(3) is a ‘particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances’: (see; Singh [2017] FCAFC 105 at [88] per Jagot, Bromberg and Mortimer JJ ; (2017) 253 FCR 267 at [287]; cited with approval in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [141] per Charlesworth, O'Sullivan and Raper JJ). The scheme is 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): (see; Singh at [90] per Jagot, Bromberg and Mortimer JJ; Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 at [95] – [97] per Kendall J; Odero at [58] – 59] per Kendall J; and, Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224 at [29] per Beach J).
It follows that were jurisdictional error to have been established it would be futile of this Court to grant the relief sought.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 11 September 2024
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