FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 340
File number(s): MLG 2359 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 8 December 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizens of India – refusal of (Temporary Work (Skilled)) Subclass 457 visa – whether error of law in relation to definitional provision – whether failure to accept or properly consider evidence concerning whether applicant’s sponsorship legitimate – whether refusal of request to Tribunal for adjournment unreasonable – whether Tribunal decision unfair – whether Tribunal failed to have regard to relevant statutory provisions – whether Tribunal failed to consider relevant case law – whether jurisdictional error
MIGRATION – Judicial review –where fixed term of visa expired – where visa type abolished subsequent to Tribunal decision – where applicants outside Commonwealth of Australia at time of judicial review hearing – whether relief futile
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 24Z, 33
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8(2)
Migration Act 1958 (Cth) Pts 5, 7, ss 116, 140, 338, 352, 353, 357A, 358, 359A, 359A, 359B, 359C, 360, 363, 363A, 420, 424A, 474, 476, 479
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) Sch 8, condition 8107
Cases cited: ApplicantWAEE v Minister for Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Hasran v Minister for Immigration and Citizenship [2010] FMCA 31
Hinton v Minister for Immigration and Border Protection [2015] FCA 408; (2015) 146 ALD 184
Islam v Minister for Immigration and Border Protection [2019] FCCA 1453
Jiang v Minister for Immigration & Anor [2007] FMCA 215
Jiang v Minister for Immigration & Citizenship [2007] FCA 907
Khant v Minister for Immigration & Citizenship [2009] FCA 124
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240; (2012) 126 ALD 99
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NARVv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; (2003) 133 FCR 89; (2003) 203 ALR 494; (2003) 78 ALD 482
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24
Rani & Ors v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493
Singh v Minister for Immigration and Border Protection [2019] FCCA 3064
Singh v Minister for Immigration & Citizenship [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267; (2017) 156 ALD 284
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; (2017) 251 FCR 110
Singh v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 571
Sullivan v Department of Transport (1978) 1 ALD 383; (1978) 20 ALR 323
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32
Usman & Anor v Minister for Immigration [2005] FMCA 966
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Zheng v Minister for Immigration & Anor [2015] FCCA 972
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534
Division Division 2 General Federal Law Number of paragraphs: 122 Date of hearing: 14 July 2021 Place: Perth Applicants: In person via video link (with the assistance of an interpreter) Counsel for the First Respondent: S Roberts (via Microsoft Teams) Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2359 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: TALWINDER SINGH
First Applicant
RAJWANT KAUR
Second Applicant
JIYAAN SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The third applicant be removed as a party to the proceedings.
3.The originating application filed on 31 October 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 31 October 2016 the first applicant, Mr Talwinder Singh (“Mr Singh”), lodged in the Melbourne Registry of the then Federal Circuit Court of Australia an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on behalf of himself and the second and third applicants. With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
(“FCFCOA Act”) with effect from 1 September 2021 the Federal Circuit Court of Australia has been “continued in existence” as the “Federal Circuit and Family Court of Australia (Division 2)” (“Court”): FCFCOA Act, s 8(2).
The Judicial Review Application seeks judicial review of a 17 October 2016 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the
first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to cancel Mr Singh’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (“457 Visa”) under s 116(1)(b) of the Migration Act. There will be an order that the name of the Minister be changed to reflect the current portfolio title.
The second and third applicants are Mr Singh’s wife (“Ms Kaur”) and child (a minor) respectively, and their positions in relation to the Judicial Review Application are dealt with at [5] below.
The applicants are citizens of India. Mr Singh left Australia on 11 September 2020, and does not presently have a right of return to Australia: Affidavit of Edwin Taylor, affirmed
13 July 2021, at [4]-[6] and Annexure EJTS-1. Mr Singh and Ms Kaur appeared at hearing via video link from India. For convenience, the Court will hereafter mostly refer to Mr Singh instead of the applicant or applicants.
THE POSITION OF THE SECOND AND THIRD APPLICANTS
Ms Kaur’s visa status is dependent upon the outcome of Mr Singh’s 457 Visa: Migration Act, s 140(1); Rani & Ors v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; (1997) 49 ALD 619, FCR at 396-401 per Sackville J; Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80; (1998) 159 ALR 405; (1998) 53 ALD 32, FCR at 96-97 per Goldberg J. With regard to the third applicant, Mr Singh’s and Ms Kaur’s child,
the third applicant was not an applicant before the Tribunal. Accordingly, the third applicant does not have standing in these proceedings: Migration Act s 479. An order will therefore be made that the third applicant be removed as a party to these proceedings.
DELAY IN THESE PROCEEDINGS
It is necessary to say something about the delay in this matter coming to hearing. As noted in [1], the matter was filed in the Melbourne Registry on 31 October 2016. As was observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court has a large backlog”. The position was seemingly much the same in November 2019 when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “[d]elays in the Melbourne Registry of this Court … would mean that it would be likely that the Application would not be heard for some two to three years if transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy.
On 26 April 2017, almost six months after the applicants filed the Judicial Review Application, a Registrar of this Court made orders (“Registrar’s Orders”) for the Judicial Review Application to be listed for final hearing on a date to be advised.
On 10 August 2017 the applicants were advised that the matter was to be listed for hearing, almost two years later, on 5 August 2019 before a Judge in Melbourne.
On 5 August 2019 the Court made orders for the Judicial Review Application to be dismissed for non-appearance by the applicants (“Court’s Orders”).
On 14 August 2019 the applicants made an interlocutory application (“Reinstatement Application”) applying to set aside the Court’s Orders and for the Judicial Review Application to be re-instated.
On 3 September 2019 the Court made orders, including an order for the Reinstatement Application to be adjourned to 8 October 2019. The Court subsequently made further orders adjourning the Reinstatement Application hearing date from 8 to 16 October 2019.
On 16 October 2019 the Court made orders for the Judicial Review Application to be reinstated and for the matter to be listed for a final hearing on a date to be advised (“Court’s Reinstatement Orders”). Subsequently, on 25 October 2019, the Court delivered a judgment in relation to the making of the Court’s Reinstatement Orders: Singh v Minister for Immigration and Border Protection [2019] FCCA 3064 (“Singh – Reinstatement”). In Singh – Reinstatement at
[38]-[41] per Judge Riley the Court found that in relation to the Judicial Review Application that there was an arguable case of jurisdictional error by way of unreasonableness on the basis that the Tribunal may have failed to consider a statement made in a newsletter
(“457 Agent Newsletter”) published by the Department of Immigration and Border Protection (“Department”) and sent to migration agents which indicated that 457 visa cancellations would not occur where a new nomination for employment was lodged within 90 days of an applicant ceasing their previous employment.
Sometime in or about early June 2021 the matter was re-allocated to the Perth Registry of the Court for hearing. On 16 June 2021, more than four years from the date of filing, a notice of listing was emailed to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for final hearing on 14 July 2021 before the Court as presently constituted siting in Perth with a Microsoft Teams link.
BACKGROUND TO THE TRIBUNAL DECISION
The background to the Tribunal Decision is conveniently set out in Mr Singh’s written submissions to the Tribunal dated 13 October 2016, particularly at CB 78-79, and in the Tribunal Decision at CB 194-196 at [4]-[8], and may be summarised as follows:
(a)
on 28 June 2013 Mr Singh was granted a 457 Visa on the basis of the Mr Singh’s employment with his then sponsoring employer, Oz Green Homes Pty Ltd
(“Oz Green Homes”) (the Court notes, and it is not in dispute that, Mr Singh’s 457 Visa was subject to condition 8107 (“Condition 8107”) of Schedule 8 to the
Migration Regulations 1994(Cth) (“Migration Regulations”), requiring Mr Singh not to cease work for more than 90 days: CB 46-47);
(b)
subsequently, at some point, Mr Singh changed his sponsoring employer,
to Matangi Enterprise Pty Ltd (“Matangi”);
(c)on 16 October 2015 Oz Green Homes lodged a nomination application in relation to the employment of Mr Singh (“October 2015 Nomination Application”);
(d)on 8 December 2015 Matangi wrote to the Department requesting that its sponsorship of Mr Singh be withdrawn, his employment with Matangi having ended;
(e)Oz Green Homes sponsorship of Mr Singh ended on 17 December 2015;
(f)on 5 February 2016 Oz Green Homes Pty Ltd lodged a further nomination application for Mr Singh (“February 2016 Nomination Application”);
(g)on 8 February 2016 the October 2015 Nomination Application was refused by a delegate of the Minister: CB 78;
(h)on 31 May 2016 Mr Singh was issued with a Notice of Intention to Consider Cancellation (“Cancellation Notice”) because a Delegate considered that he had breached Condition 8107: CB 1-8;
(i)on 6 June 2016 Mr Singh (through his lawyer) responded to the Cancellation Notice and stated that there were “no grounds for cancellation” as Mr Singh “indeed has an application on foot”, and referred to the Second Nomination Application;
(j)
on 14 June 2016 the Delegate’s Decision was to cancel Mr Singh’s 457 Visa under
s 116(1)(b) of the Migration Act, on the basis that Mr Singh had ceased employment for more than 90 days, and in so doing had breached Condition 8107;
(k)on 17 June 2016 Mr Singh applied to the Tribunal for review of the Delegate’s Decision;
(l)on 27 September 2016 the February 2016 Nomination Application was refused by a delegate of the Minister;
(m)on 7 October 2016 Mr Singh applied to the Tribunal for review of the decision to refuse the February 2016 Nomination Application;
(n)on 13 October 2016 Oz Green Homes lodged a further nomination application in relation to Mr Singh (“October 2016 Nomination Application”). The Court was informed that, as at the date of hearing of the Judicial Review Application, there had been no outcome in relation to the October 2016 Nomination Application lodged with the Department more than four and a half years previously.
In Mr Singh’s written submissions to the Tribunal in relation to the Cancellation Notice he requested that “the Tribunal … exercise its discretion and wait for the outcome of this most recent nomination application [the October 2016 Nomination Application] before making a decision in respect of the cancellation of the applicant’s visa”: CB 78.
TRIBUNAL DECISION
On 17 October 2016 the Tribunal Decision affirmed the Delegate’s Decision to cancel
Mr Singh’s 457 Visa, and determined that the Tribunal had no jurisdiction with respect to
Ms Kaur: CB 194-202.
Based on the evidence before it, including oral evidence from Mr Singh, the Tribunal found that Mr Singh had ceased employment:
(a)with Matangi on 8 December 2015: CB 198 at [25];
(b)for a period which exceeded 90 consecutive days, and, accordingly:
(i)Mr Singh did not comply with Condition 8107(3)(b); and
(ii)it was satisfied that the ground for cancellation in s 116(1)(b) of the Migration Act existed: CB 198 at [25].
The Tribunal further considered whether the power to cancel Mr Singh’s 457 Visa should be exercised: CB 198 at [26].
The Tribunal accepted that:
(a)Mr Singh’s prospective employer - Oz Green Homes - had lodged the October 2016 Nomination Application and that a decision from the Department was pending; and
(b)
the February 2016 Nomination Application had been refused by the Department,
and was subject to a separate review application lodged with the Tribunal
(differently constituted) on 7 October 2016: CB 198-199 at [31].
The Tribunal considered whether to adjourn making a decision in this case until the Department made its decision on the October 2016 Nomination Application, or until the Tribunal (differently constituted) made a decision on the review application lodged in respect of the refusal of the February 2016 Nomination Application: CB 199 at [32]. The Tribunal:
(a)found that it was uncertain "if and when" Mr Singh would become the subject of an approved nomination: CB 199 at [33];
(b)
opined that the "situation could arise" whereby Mr Singh could remain in the immigration system by continuing to seek nominations from different businesses,
even though such applications could be continuously refused: CB 199 at [33];
(c)noted that it was uncertain how long it would take for the Tribunal to finalise the review application in respect of the February 2016 Nomination Application: CB 199 at [33];
(d)had regard to relevant authorities, and found that it was not disposed to delay making its decision indefinitely: CB 199 at [34], noting that it had been more than ten months since Mr Singh ceased his employment with Matangi: CB 199 at [35];
(e)was satisfied that Mr Singh had been given a reasonable opportunity to secure employment with an Australian company who was an approved sponsor and who successfully nominated him for a position within the business: CB 199 at [35];
(f)
noted that if Mr Singh’s 457 Visa was cancelled, Mr Singh may be required to depart Australia, but found that there was nothing to prevent him from re-applying for a
457 Visa: CB 199 at [36]; and
(g)decided not to postpone its decision making: CB 199 at [37].
The Tribunal:
(a)
gave “significant weight” to the fact that the purpose of a 457 Visa was not to enable a visa holder to live in Australia and look for employment opportunities:
CB 199-200 at [38];
(b)accepted that Mr Singh did not voluntarily cease working with Matangi and had taken steps to commence employment with another sponsoring employer (Oz Green Homes): CB 200 at [42]; and
(c)found that Mr Singh’s failure to commence employment with another sponsoring employer after ten months (as at the date of the Tribunal Decision) represented a “significant breach” of Condition 8107: CB 200 at [42].
The Tribunal:
(a)accepted that the circumstances in which the ground for cancellation arose were not the fault of Mr Singh: CB 200 at [43], and that there was no evidence before it that he had previously breached visa conditions or that he was not co-operative with the Department: CB 200 at [44];
(b)noted that Mr Singh had been living in Australia since 2007 and that he and his family had strong ties to the Australian community: CB 200 at [46];
(c)did not accept, however, that Mr Singh would not be able to re-establish himself in India, given his employment background and experience: CB 201 at [47];
(d)noted that Mr Singh and Ms Kaur had completed degrees in India and had relatives in India: CB 201 at [47]; and
(e)
observed that balanced against any potential hardship to Mr Singh and his family if the 457 Visa was cancelled, was the fact that Mr Singh had been granted a temporary
457 Visa which created no expectation of remaining in Australia permanently: CB 201 at [48].
The Tribunal:
(a)was “mindful” that if Mr Singh’s 457 Visa was cancelled, it would limit the visa applications that could be made by Mr Singh whilst onshore: CB 201 at [51];
(b)
noted that there were consequential visa cancellations for Ms Kaur and the child,
but noted that this would not result in separation of Mr Singh from Ms Kaur and the child: CB 201 at [52];
(c)noted that it had no jurisdiction with respect to Ms Kaur: CB 194 at [3], because her visa had been automatically cancelled as a consequence of Mr Singh’s 457 Visa cancellation, by force of the operation of s 140(1) of the Migration Act: CB 201 at [52].
The Tribunal held that there was:
(a)little in the evidence before it that would suggest that Australia would be in breach of its international obligations: CB 201 at [54]; and
(b)no evidence of the impact on any victims of family violence: CB 202 at [55].
Having regard to the findings it had made, and the circumstances of the case as a whole, the Tribunal was satisfied that the reasons for cancelling the 457 Visa outweighed the reasons for not cancelling it: CB 202 at [56].
REQUIREMENT FOR JURISDICTIONAL ERROR
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [56]-[58] per Hayne, Kiefel and Bell JJ, as may unreasonableness: Li, and see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration &Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Singh to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision,
or determine Mr Singh’s claim for a 457 Visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
JUDICIAL REVIEW APPLICATION
In the Judicial Review Application there are three grounds for judicial review, and these are set out at [32] (ground 1), [35] (ground 2), and [38] (ground 3) below.
The written submissions filed by Mr Singh (“Mr Singh’s Written Submissions”) are not set out by reference to, or otherwise specifically referrable to, the three grounds of judicial review in the Judicial Review Application. Having regard to the fact that Mr Singh is not legally represented, the Court ought to remain alert to the possibility of legal error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J. In so doing the Court has had regard to the additional matters set out at [46]-[113] below.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1. That the Member in the Migration Review Tribunal erred in Law therefore fell into jurisdictional error in not applying s.338 of the Migration Act 1958 correctly.
Although nothing ultimately turns on it, ground 1 erroneously refers to the former Migration Review Tribunal, and not the Tribunal which made the Tribunal Decision, and otherwise states that the Tribunal erred in law “in not applying s. 338 ... correctly.” Section 338 of the Migration Act relevantly provides as follows:
(1) A decision is a Part 5‑reviewable decision if this section so provides, unless:
(a)the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a Part 7‑reviewable decision; or
(c)the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d) the decision is a fast track decision.
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa could be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non‑citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
…
(5) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a)the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
Section 338 of the Migration Act thus defines what constitutes a “Part 5-reviewable decision”. There is no suggestion in this case that the Tribunal Decision is not a “Part 5-reviewable decision”. The Tribunal proceeded properly and correctly on the basis that the Tribunal Decision is a reviewable decision under Part 5 of the Migration Act. There was no jurisdictional error in the Tribunal so doing, and ground 1 does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2. The Member erred in law and therefore fell into jurisdictional error in that he failed to accept and/or properly consider the evidence that the first named applicant's sponsor was legitimate.
Ground 2 mistakes the nature of the issues addressed in the Tribunal Decision. The issues that the Tribunal addressed were whether:
(a)a ground for cancellation arose consequent upon a breach of Condition 8107; and
(b)the Tribunal should exercise its discretion to cancel Mr Singh’s 457 Visa.
The Tribunal was not deciding, and did not decide, the legitimacy or otherwise of any previous or prospective employment sponsor in respect of Mr Singh. Ground 2 is therefore misconceived, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Judicial Review Application is as follows:
3. The Member erred in law in affirming the Department of Immigration’s decision to not allow the first named applicant's the time required, given his limitation and circumstances, to provide the Minister for Immigration with the information required to legitimise the nomination.
Ground 3 and Mr Singh’s Written Submissions (at page 4) appears to take issue with the Tribunal’s refusal to adjourn the review until the outcome of the February 2016 Nomination Application was determined.
Pursuant to s 363(1)(b) of the Migration Act the Tribunal may adjourn a review from time to time. The Tribunal thus has the power and discretion to determine whether to adjourn proceedings, but the law requires that the exercise of that power and discretion be reasonable: Li at [47] per Hayne, Kiefel and Bell JJ. In Li at [63] per Hayne, Kiefel and Bell JJ observed that the exercise of the statutory power to adjourn in s 363(1)(b) of the Migration Act was not to be judged solely by the standard set in s 357A(3) of the Migration Act, which requires that the Tribunal must act in a way that is fair and just, but also from a presumption of the law, namely reasonableness.
When determining if the Tribunal has acted reasonably, the Court must give close attention to the scope and purpose of the statutory functions conferred upon the Tribunal: Li at [74] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Border Protection v Stretton
[2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 at [9] per Allsop CJ. In Li at [28] per French CJ it was noted that a decision within the area of decisional freedom left to the Tribunal by the Migration Act will nevertheless be affected by jurisdictional error where it is “arbitrary or capricious or … abandon(s) common sense”. In Li at [76] per Hayne, Kiefel and Bell JJ it was stated that:[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
A failure to accede to a reasonable request for an adjournment may constitute procedural unfairness: Li at [19] per French CJ, but the Tribunal is not obliged to afford every opportunity to an applicant for review to present their best possible case and to improve upon the evidence, that is, the Tribunal is only required to give a party a reasonable opportunity to present a case, not to ensure that a party takes the best advantage of the opportunity to which the party is entitled: Li at [82] per Hayne, Kiefel and Bell JJ; Sullivan v Department of Transport (1978) 1 ALD 383; (1978) 20 ALR 323 at 403 per Deane J; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; Islam v Minister for Immigration and Border Protection [2019] FCCA 1453 at [58] per Judge Lucev.
Detailed reasons were given by the Tribunal for deciding not to adjourn the making of a decision in this case: CB 199-200 at [32]-[38]. The Tribunal:
(a)said that it was uncertain “if and when” Mr Singh might become the subject of an approved nomination: CB 199 at [33];
(b)said that the “situation could arise” whereby Mr Singh might remain in the immigration system by continually seeking nominations from different businesses, even though the applications might be continuously refused: CB 199 at [33];
(c)noted that it was uncertain how long it might take for the Tribunal to finalise the review application in respect of the nomination refusal of 27 September 2016: CB 199 at [33];
(d)was not disposed to delay the Tribunal Decision indefinitely: CB 199 at [34], and noted that it had been more than ten months since Mr Singh’s employment with Matangi had ceased; and
(e)was satisfied that Mr Singh had been given a reasonable opportunity to secure employment with an Australian company which was an approved sponsor and which had successfully nominated him for a position within the business: CB 199 at [35].
The reasons given by the Tribunal, as set out above:
(a)provide a proper and coherent rationale for not adjourning; and
(b)do not reveal any unreasonableness, nor any want of an “evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ,
for the refusal to adjourn the Tribunal hearing.
It follows that ground 3 is not made out and does not establish any jurisdictional error in the Tribunal Decision.
Possible further grounds of judicial review arising from Mr Singh’s Written Submissions
Mr Singh’s Written Submissions do not directly address the three grounds in the Judicial Review Application in any organised fashion, but rather overlap those grounds and possibly raise new issues and grounds which it is necessary for the Court to endeavour to identify and consider: MZAIB at [100] and [112] per Mortimer J, a task which the Court has endeavoured to undertake below.
Denial of procedural fairness and unreasonableness
Mr Singh’s Written Submissions assert that there was procedural unfairness and unreasonableness in the manner in which the Tribunal dealt with the matter because:
(a)all relevant documents in support of the review were provided to the Tribunal on time, including a submission setting out all the facts concerning Mr Singh’s 457 Visa status, and the cancellation of the 457 Visa application was not dealt with by the Tribunal in a fair manner and denied Mr Singh his “basic right”; and
(b)the Tribunal is not bound by technicalities under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) (which was set out in full) and was required to act fairly and erred because it had regards to technicalities, did not provide enough time for documents to be produced to it, and could have delayed the Tribunal Decision until the further decision on the October 2016 Nomination Application had been made, and by not providing that chance, it had acted in an unfair manner.
For the reasons set out at above at [43]-[44] above there was no unfairness, unreasonableness or any denial of procedural fairness in the Tribunal not delaying the Tribunal Decision until a decision on the October 2016 Nomination Application was made. The Tribunal’s decision not to adjourn the review pending the outcome of the October 2016 Nomination Application lodged by Oz Green Homes on 13 October 2016 was not legally unreasonable.
In Mr Singh’s Written Submissions Mr Singh says:
(a)at page 1, that he “provided all the relevant documents in support” of the application for review by the Tribunal, “which included a submission stating all the facts which lead [to] my current visa status”; and
(b)at page 3, that he “provided all relevant document[s] on time without fail” to the Tribunal.
In oral submissions Mr Singh did not identify or allude to any documents that the Tribunal denied him the ability to produce. It is also not apparent that the Tribunal Decision was based in any way upon a failure by Mr Singh (or Ms Kaur) to produce documents to the Tribunal. Furthermore, the Tribunal:
(a)
set out in detail the documents provided to it by Mr Singh (through his lawyers):
CB 194-196 at [7]; and
(b)said that it took into account the submissions and evidence received from Mr Singh: CB 198 at [29], and there is nothing in the Tribunal Decision, or otherwise in the circumstances of the matter, to suggest otherwise.
On the materials before it, the Court otherwise observes as follows:
(a)the Tribunal complied with its statutory obligations under ss 360 and 360A of the Migration Act by validly inviting Mr Singh to a hearing before the Tribunal scheduled for 17 October 2016, and doing so by letter dated 17 June 2016: CB 66-69, and in relation to which Mr Singh completed and returned to the Tribunal a “Response to hearing invitation” indicating he would, with Ms Kaur, his lawyer and a witness from Oz Green Homes, attend the Tribunal hearing: CB 182-184;
(b)Mr Singh and Ms Kaur attended the Tribunal hearing, with a lawyer: CB 186;
(c)
there is no evidence of any failure by the Tribunal to put relevant matters to, or discuss relevant matters with Mr Singh, and the Tribunal Decision includes instances where
Mr Singh was able to put evidence before the Tribunal, and respond to issues that the Tribunal had with his claims and evidence: see, for example, CB 197 at [13]-[20]; and
(d)the Tribunal also referred to, and had regard to, Mr Singh’s written and oral evidence provided to the Tribunal: CB 194-197 at [7]-[20], 198 at [25], 198-199 at [30]-[31], and 199 at [35].
It follows from the above that the assertion of some kind of procedural fairness or unreasonableness by reason of the Tribunal allegedly denying Mr Singh the ability or time to produce documents to the Tribunal is not made out as a matter of fact. In the Court’s view, the Tribunal complied with its procedural fairness obligations under the Migration Act, and no denial of procedural fairness by the Tribunal in respect of this matter has been established, and therefore does not establish jurisdictional error in the Tribunal Decision.
In relation to s 33 of the AAT Act it suffices to observe that Pt IV of the AAT Act, in which s 33 appears, does not apply to the conduct of proceedings in the Tribunal’s Migration and Refugee Division: AAT Act, s 24Z(1). In fairness to Mr Singh it is, however, necessary to consider s 353 of the Migration Act which is in not dissimilar terms to s 33 of the AAT Act. Section 353 of the Migration Act provides as follows:
The Tribunal, in reviewing a Part 5-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
In Li at [14]-[15] per French CJ the High Court explained that s 353 of the Migration Act:
… is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.
The Tribunal’s statutory objectives under s 353 of the Migration Act are aspirational objects, rather than accrued substantive rights, and without more, do not give rise to a jurisdictional error: Li at [16] per French CJ; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [49] per Gleeson CJ and McHugh J, [108]-[109] per Gummow J and [176]-[179] per Callinan J. Section 353 of the Migration Act is thus not a source of rights for an applicant, but comprises only “facultative” or “exhortative” provisions: Khant v Minister for Immigration & Citizenship [2009] FCA 124 at [31] per Cowdroy J. Otherwise, for the reasons set out at [48]-[54] above, there was nothing unfair or unjust about the way in which the Tribunal exercised its decision-making power in the matter, and no jurisdictional error is established.
Failure to comply with legislative requirements
Mr Singh’s Written Submissions also assert that the “Tribunal did not clearly exercise the following”, and refers to the “relevant part of the Act is Division 5 of Part 5”, and then simply lists a number of sections of the Migration Act which it either summarises or quotes (in whole or part). Those sections are ss 358(1), 359A, 359B(4), 359C(2), 360(1), (2) and (3) and 363A of the Migration Act. Each of those sections is discussed below.
Migration Act, s 358(1)
Section 358(1) of the Migration Act provides that an applicant “may give the Tribunal”
a written statement in relation to any matters of fact that the applicant wishes the Tribunal to consider, and written arguments relating to the issues arising in relation to the Tribunal review. Under s 358(1) of the Migration Act it is for an applicant to provide the written statement or arguments, which they may do at any time: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [38]-[40] per Jacobson, Gilmour and Foster JJ (“Hasran – FCAFC”); Hasran v Minister for Immigration and Citizenship [2010] FMCA 31 at [64]-[68] per Nicholls FM; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267; (2017) 156 ALD 284 (“Singh 2017”) at [59] per Mortimer J (with whom Jagot and Bromberg JJ agreed), but it is not mandatory for an applicant to do so.
At CB 194-196 at [7] the Tribunal sets out the documents that Mr Singh’s lawyers provided to the Tribunal, namely:
(a)legal submissions dated 13 October 2016;
(b)
notification of the October 2015 Nomination Application refusal
(dated 8 February 2016);
(c)copies of documents that accompanied the October 2015 and February 2016 Nomination Applications;
(d)documentary evidence of the October 2016 Nomination Application lodgement;
(e)an acknowledgment letter from the Tribunal in relation to the February 2016 Nomination Application;
(f)a copy of the 457 Agent Newsletter prepared and distributed by the Department in October 2016: CB 180-181; and
(g)email correspondence between Mr Singh’s lawyers and the Department in relation to the October 2015 Nomination Application.
The Tribunal has no power under s 358(1) of the Migration Act, save perhaps for an implied duty to receive, or not refuse the receipt of, any written statements or written arguments provided by an applicant prior to the time at which the Tribunal makes a decision. In this case, the Tribunal did not refuse to allow the provision of any written statement by, or on behalf of, Mr Singh (or Ms Kaur), or the provision of any further written argument, or at least there is no evidence of any refusal, in relation to these materials which are the subject of s 358(1) of the Migration Act. Section 358(1) of the Migration Act is not concerned with adjournments or the like. In the circumstances, no failure or refusal by the Tribunal to exercise a power under s 358(1) of the Migration Act has been established. The Court further notes that even if a written statement had been put to the Tribunal by Mr Singh there may not have been a duty on the part of the Tribunal to consider it, unless it were relevant: Hinton v Minister for Immigration and Border Protection [2015] FCA 408; (2015) 146 ALD 184 at [43]-[45] per McKerracher J; Singh2017 at [60] per Mortimer J (with whom Jagot and Bromberg JJ agreed), but otherwise
s 358(1) of the Migration Act does not constrain the Tribunal in completing and finalising its review: Singh 2017 at [60] per Mortimer J (with whom Jagot and Bromberg JJ agreed).
In all the above circumstances, no jurisdictional error in the Tribunal Decision arising from any duty under s 358(1) of the Migration Act has been established.
Migration Act, s 359A
Section 359A of the Migration Act requires the Tribunal to put certain adverse information to an applicant for comment and response. In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [71] per Tracey and Foster JJ the plurality of a
Full Court of the Federal Court (Moore J agreeing at [1]) observed that the policy and purpose of an analogue provision, s 424A of the Migration Act, was to:
(a)give an applicant notice in writing of critical matters of concern to the Tribunal;
(b)ensure that an applicant understands why those matters are of significance to the Tribunal’s consideration; and
(c)give an applicant a reasonable opportunity to comment on or respond to the matters of concern to the Tribunal.
No notice in writing was given to Mr Singh under s 359A of the Migration Act in this matter. But notice did not need to be given, as any relevant information for the purposes of the review was given to the Tribunal by Mr Singh, and in particular any relevant information was contained in the Cancellation Notice and the Delegate’s Decision: CB 52-56. In those circumstances, s 359A of the Migration Act had no application: Migration Act, s 359A(4)(b); Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240; (2012) 126 ALD 99 at [74] per North, Greenwood and Besanko JJ.
In all the above circumstances, no jurisdictional error in the Tribunal Decision has been established in relation to the operation of s 359A of the Migration Act.
Migration Act, s 359B(4)
Section 359B(4) of the Migration Act provides that where a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and the response is then to be made within that further period. The power to extend time for a response under s 359B(4) of the Migration Act cannot be exercised after the time prescribed for a response in any letter sent by the Tribunal under s 359A(1) of the Migration Act has expired: Hasran – FCAFC at [47]-[48] per Jacobson, Gilmour and Foster JJ; Usman & Anor v Minister for Immigration [2005] FMCA 966 at [44] per Pascoe CFM. How it is that Mr Singh says that the power to exercise the discretion is enlivened in this case is unclear.
On 16 June 2016 Mr Singh applied for review of the Delegate’s Decision: CB 57-61.
Mr Singh’s review application was acknowledged by the Tribunal on 17 June 2016: CB 62-65. On 8 September 2016 the Tribunal wrote to Mr Singh and Ms Kaur, and invited them to appear at a hearing before the Tribunal on 17 October 2016: CB 66-73 (“October 2016 Tribunal Hearing”), and that any additional documents or information that Mr Singh or Ms Kaur sought to rely upon be submitted by 10 October 2016 .
On 14 October 2016, over a month after the invitation to hearing had issued, four days after the time for provision of additional documents or information had expired, and three days before the October 2016 Tribunal hearing was due to be heard, Mr Singh’s lawyers wrote to the Tribunal by email attaching written submissions and documents and requesting the postponement of the October 2016 Tribunal Hearing, or the concurrent hearing of the review of the February 2016 Nomination Application and the October 2016 Nomination Application: CB 76-77 (“Mr Singh’s 14 October 2016 Email”). Later that afternoon Mr Singh’s lawyers were advised by a Tribunal officer that the Tribunal had denied the request for postponement of the October 2016 Tribunal Hearing: CB 185. Although the Tribunal officer’s note concerning the refusal of the postponement of the October 2016 Tribunal Hearing does not say so it would appear that the request for a concurrent hearing of the review of the February 2016 Nomination Application and the October 2016 Nomination Application was also refused.
Under cover of Mr Singh’s 14 October 2016 Email the Tribunal was provided with the following (see CB 78-184):
(a)written submissions on behalf of Mr Singh dated 13 October 2016;
(b)
an acknowledgment letter from a delegate of the Minister to Mr Singh’s sponsor,
Oz Green Homes, dated 16 October 2015;
(c)a notification letter from a delegate to Oz Green Homes dated 8 February 2016;
(d)a position description for Project Administrator role at Oz Green Homes;
(e)Oz Green Homes employment contract signed and dated 13 October 2015;
(f)a letter from Oz Green Homes Managing Director, Mr Manik Chopra, regarding sponsoring of Mr Singh;
(g)
copies of recruitment advertisements for positions of Project Coordinator,
Client Liaison/Contract Administration – Project Homes, Repair Administrator/Coordinator roles;
(h)Oz Green Homes written response to a Case Officer dated 25 November 2015 including photographs of work premises;
(i)
a letter dated 13 March 2012 from the Essential Services Commission to
Mr Tarun Chhimwal at Oz Green Homes regarding the Victorian Energy Efficiency Target Scheme;
(j)an Emerald Planet product catalogue;
(k)submissions to the Delegate dated 7 April 2016;
(l)three written responses to the Case Officer dated 24 March 2016, 22 June 2016 and one undated;
(m)an acknowledgment letter from the Delegate dated 13 October 2016;
(n)an acknowledgement letter from the Tribunal dated 13 October 2016;
(o)the 457 Agent Newsletter from the Department dated October 2016; and
(p)Mr Singh’s response to the October 2016 Tribunal Hearing invitation, signed and dated 14 October 2016.
Nothing that was done by the Tribunal was contrary to s 359B(4) of the Migration Act.
Indeed, there was no work for s 359B(4) of the Migration Act to do as there had in fact not been a request, within the prescribed period or otherwise, to extend the prescribed period in which to respond to the invitation to provide a response to the October 2016 Tribunal Hearing invitation, and additional documents and submissions. Rather, what was sought was an adjournment of the Tribunal Hearing, or, alternatively a concurrent hearing of the February 2016 Nomination Application refusal and the October 2016 Nomination Application, which are not matters of a type dealt with by s 359B(4) of the Migration Act.
In all the above circumstances, no jurisdictional error in the Tribunal Decision has been established in relation to the operation of s 359B(4) of the Migration Act.
Migration Act, s 359C(2)
Section 359C(2) of the Migration Act provides that if an applicant is invited to comment or respond to information under s 359A of the Migration Act, and does not do so before the time for giving that comment or information has passed, then the Tribunal may make a decision on the review without taking any further action to obtain an applicant’s views on the information. It is unclear how Mr Singh says that this power applies in this case considering that:
(a)Mr Singh and Ms Kaur were invited to attend the October 2016 Tribunal Hearing on 17 October 2016;
(b)Mr Singh attended the October 2016 Tribunal Hearing together with Ms Kaur and his lawyer; and
(c)
the October 2016 Tribunal Hearing went for over 45 minutes: CB 186-188,
and Mr Singh confirmed his residential address details and answered questions put to him, and Ms Kaur provided her Victorian learner’s permit at hearing as a further document: CB 189 and 197 at [16], [17] and [20].
In all the above circumstances, no jurisdictional error in the Tribunal Decision has been established in relation to the operation of s 359C(2) of the Migration Act.
Migration Act, s 360(1)
Under s 360(1) of the Migration Act the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, save where excepted by s 360(2) of the Migration Act: Migration Act, s 360(3).
What it is that Mr Singh complains about in relation to the alleged failure by the Tribunal to exercise power under s 360(1) of the Migration Act is unclear. As indicated at [70(a)-(b)] above, not only did the requisite invitation to the October 2016 Tribunal Hearing issue to
Mr Singh and Ms Kaur through their lawyers, but they attended and participated in the October 2016 Tribunal Hearing: see CB 68-69 (invitation to attend the October 2016 Tribunal Hearing) and 186-188 (Tribunal Hearing Record).
In the above circumstances, there was no breach of s 360(1) of Migration Act,
and no jurisdictional error in relation thereto in the Tribunal Decision.
Migration Act, s 363A
Section 363A of the Migration Act provides that the Tribunal cannot permit a person to do something that the Migration Act specifically states that a person is not entitled do, and where enlivened operates to exclude the exercise of powers (such as allowing an applicant to appear at a hearing) that the Tribunal might otherwise exercise: Singh v Minister for Immigration and Border Protection and Anor [2017] FCAFC 67; (2017) 251 FCR 110 at [53]-[57] per North, Bromberg and Bromwich JJ.
Once again it is unclear what it is that Mr Singh complains about in relation to the Tribunal not exercising power under s 363A of the Migration Act. Mr Singh:
(a)received an invitation to the October 2016 Tribunal Hearing; and
(b)through his lawyers:
(i)provided lengthy written submissions and numerous documents to the Tribunal prior to the October 2016 Tribunal Hearing: see [67(a)-(p)] above, and CB 194 at [7];
(ii)was notified of the denial of the request for postponement of the October 2016 Tribunal Hearing: CB 185, and his lawyers are recorded to have told the Tribunal officer that they:
understood and indicated that’s fine and [that] he [the lawyer] will speak to his client
(c)
was represented by his lawyers, and participated in the Tribunal Hearing with Ms Kaur, answering questions put to him by the Tribunal: CB 186, 196 at [8] and 197 at
[13]-[20].
In the above circumstances, there was no breach of s 363A of Migration Act, and no jurisdictional error in relation thereto in the Tribunal Decision.
Conclusion – failure to comply with legislative requirements
For the reasons set out at [56]-[77] above there is nothing in the submissions put by Mr Singh which establishes his claims that there was a failure by the Tribunal to comply with any legislative requirements or to exercise any relevant power which the Tribunal might have exercised in connection with Mr Singh’s review under ss 358(1), 359A, 359B(4), 359C(2), 360 and 363A of the Migration Act. These claims do not therefore establish any jurisdictional error in the Tribunal Decision.
Migration Act, ss 420 and 353 and delay
Mr Singh also alleged that the Tribunal had overlooked s 420 of the Migration Act and had not made a fair decision nor one based on the merits. The Tribunal was entitled to overlook s 420 of the Migration Act because it is a provision which applies to reviewable decisions under Part 7 of the Migration Act. The Tribunal Decision in this case relates to a reviewable decision under Part 5 of the Migration Act. There is, however, a provision in the equivalent terms to s 420 of the Migration Act in Part 5 of the Migration Act, namely s 353 of the Migration Act:
Liat [13] per French CJ. Section 353 of the Migration Act is set out at [53] above.
In relation to this claim Mr Singh submitted that the Tribunal:
(a)did not provide him with a fair review by affirming the Delegate’s Decision, and that it could have provided him with enough time to provide further evidence, and waited for the decision on the October 2016 Nomination Application before making the Tribunal Decision;
(b)failed to take into account that he had lodged the October 2015 Nomination Application within the time allowed for a 457 Visa, and that there was a delay by the Delegate which led to the expiration of Standard Business Sponsorship (“SBS”) and nomination of the company, and that the Delegate advised him to withdraw the February 2016 Nomination Application and re-lodge the application for SBS and nomination; and
(c)failed to consider the fact that the October 2015 Nomination Application was within time, and that if it had been acted upon in a timely manner by the Delegate, the SBS and the nomination would not have lapsed, and would have not resulted in any delays, and would not have led to the later cancellation of Mr Singh’s 457 Visa.
Mr Singh states that the Tribunal failed to consider the issue of Departmental delay, and,
in particular, alleged that it was “solely due to the delay and slow processing time of the Department of Immigration that has led to this predicament”: Mr Singh’s Written Submissions at page 5.
There was no failure to take this matter into account by the Tribunal. The Tribunal set out the relevant chronology: CB 196-197 at [12]-[15] with respect to the various nomination applications. Further, the Tribunal noted that Mr Singh lost his job with Matangi in
December 2015: CB 198 at [30], and again set out the chronology in relation to the detail of the February and October 2016 Nomination Applications: CB 198-199 at [31]-[33], before going on to note that "the department did not make decision until 27 September 2016
(almost eight months latter [sic])”: CB 199 at [33]. Finally, the Tribunal specifically noted at CB 199 at [35] that:
… it has been more than 10 months since the applicant ceased his employment the company [Matangi] that was an approved standard business sponsor and that successfully nominated the applicant for a position … within the business. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, [have] ceased on 28 June 2017.
It is not the role of this Court to remake the Tribunal’s factual findings or to search those findings with a view to establishing error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey, RD Nicholson and Selway JJ.
The Tribunal Decision demonstrates that the Tribunal was aware of the chronology of all relevant events with respect to the various nomination applications, and the delay which occurred at Departmental level, and that these were matters which it did consider in making findings and coming to its ultimate conclusion to affirm the Delegate’s Decision. This was not a case where, in the circumstances, the Tribunal’s determination was unlawful, unfair or irrational: Li at [14] per French CJ.
In the above circumstances, there was no breach of s 353 of Migration Act, and no failure to consider the issue of Departmental decision-making delay. There was therefore no jurisdictional error in relation thereto in the Tribunal Decision.
References to case law by Mr Singh
Mr Singh’s Written Submissions
In Mr Singh’s Written Submissions reference is made to a number of cases in support of his Judicial Review Application, without connecting the cases to the grounds of the Judicial Review Application and the possible further grounds thereof, as follows (unaltered):
…
I would like to refer to following case law to support my application here and emphasising that I was not provided with a fair trial”
Baljit Singh v Minister for Immigration & Multicultural Affairs [1998] FCA 1729
(18 December 1998)Where an application for review of a decision of the Refugee Review Tribunal (the RRT) refusing the grant of a protection visa to the applicant. Two grounds for review under s 4761)(a) of the Migration Act 1958 (Cth) (the Act) are advanced. The first alleges 1hat there was a failure to meet the procedural requirements of s 420(1), in particular that there was not a fair hearing by the RRT. The second alleges that there was a failure on the part of the RRT to meet the requirement of s 420(2)(b) to act according to substantial justice and the merits of the case.
Also:
i)NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.
As per this case it clearly states that if the tribunal "would have suggested to produce the acceptable form of document, I Would not have been subject to refusal by the Tribunal. It is not apparent to me how this result is consistent with the ideals underlying the concept of the rule of law, let alone the dictates of fairness.Also
Minister for Immigration & .Multicultural Affairs v Bhardwaj [2002] HCA 11
&
Zheng v Minister for Immigration & Anor [2015 J FCCA 972
&
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
&
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
In support of unfair assessment of my application at the AAT
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Pointing towards the working obligation of the AAT.
I would like to make a request as per aforementioned, that I should be provided with a relief and my case should be given fair trial and I shouldn’t be denied from my rights.
Minister’s reply to Mr Singh’s Written Submissions
In relation to the case law referred to in Mr Singh’s Written Submissions the Minister submitted that the cases cited bear no apparent relevance to the Judicial Review Application: Minister’s Written Submissions at [30].
Consideration – References to case law by Mr Singh
In Singh v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 571
(“Singh 1998”) the Federal Court held that the Tribunal did not come to the matter with a fresh mind as the Tribunal constituted by the same member had, in another review concerning the applicant's former wife, rejected evidence on which the applicant relied as not authentic and implausible: Singh 1998 at 575 per von Doussa J. Singh 1998 is irrelevant to, or distinguishable from, this matter as there is no indication that the Tribunal, as constituted in this matter,
has presided in another matter related to Mr Singh, or anyone related to him by blood or marriage, and there is nothing in the Tribunal Decision, or the materials generally, indicative of the Tribunal coming to the matter with a predetermined view as to any aspect of the matter.
In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1 (“NAAV”), an appeal was dismissed by the Full Court of the Federal Court, a majority (Black CJ, Beaumont and
von Doussa JJ, Wilcox and French JJ dissenting) concluding that the privative clause operated to expand the power of the Tribunal so that its decision is not invalid despite the circumstance that the then Refugee Review Tribunal (“RRT”) failed to comply with the common law requirements of procedural fairness. How this assists Mr Singh is unclear, but in any event the view of the majority in NAAV is no longer good law because it was wrongly decided:
Plaintiff S157/2002 v Commonwealth of Australia[2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454; NARVv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; (2003) 133 FCR 89; (2003) 203 ALR 494; (2003) 78 ALD 482 at [13] per Ryan and Finkelstein JJ. But, in any event, for the reasons set out at
[43]-[44] and [48]-[54] above, there was in this case no denial of procedural fairness by the Tribunal in relation to Mr Singh or Ms Kaur.
Minister for Immigration & Multicultural Affairs v Bhardwaj
[2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615 (“Bhardwaj”), was a case where the then Immigration Review Tribunal (“IRT”) made two decisions on the review under the Migration Act, with the first decision being made in the review applicant’s absence.
Shortly thereafter the IRT realised it had not been provided with a facsimile that the review applicant had given to the IRT in which he had said that he was ill and had requested an adjournment. A week later the IRT reconvened and made a decision in the review applicant’s favour. The Minister contended that the IRT did not have the power to correct its decision.
A majority of the High Court, however, disagreed with the Minister, holding that the first decision was vitiated by jurisdictional error, and consequently, that the Tribunal did have power to make the second decision: Bhardwaj at [14]-15 per Gleeson CJ, [41]-[44] and [61] per Gaudron and Gummow JJ, [63] and [67] per McHugh J, [149] and [155] per Hayne J, and [163] and [165] per Callinan J.
In Bhardwaj it was said that the first decision of the IRT was affected by jurisdictional error because:
(a)the failure to accede to a reasonable request for an adjournment constituted a failure to exercise jurisdiction, and not just a denial of procedural unfairness: Bhardwaj at [40] per Gaudron and Gummow JJ, [63] per McHugh J, [149] per Hayne J, and [163] per Callinan J; and
(b)the failure, in making the first decision, to give Mr Bhardwaj a reasonable opportunity to present evidence and argument meant that there was no decision as required by the then relevant provisions of the Migration Act: Bhardwaj at [41]-[44] per Gaudron and Gummow JJ, [63] per McHugh J, [155] per Hayne J, and [165] per Callinan J.
In this matter Mr Singh and Ms Kaur, represented by lawyers, attended the October 2016 Tribunal Hearing and put written and oral submissions to the Tribunal. The written submissions, including annexed documents, ran to more than 100 pages: see email at
CB 76-77 and submissions and documents at CB 78-183. Unlike the position in respect of the
first decision in Bhardwaj, in this matter there was a hearing, and submissions were put to the Tribunal on behalf of Mr Singh and Ms Kaur, and the Tribunal exercised its jurisdiction by determining the relevant issues (both as to the suggested adjournment and the merits of the review application proper), and there was therefore no jurisdictional error of the kind which occurred in Bhardwaj, and, for the reasons set out at [43]-[44] and [48]-[54] above,
nor was there a denial of procedural fairness or unreasonableness giving rise to jurisdictional error. In the above circumstances Bhardwaj is distinguishable and does not assist Mr Singh.
In Zheng v Minister for Immigration & Anor [2015] FCCA 972 (“Zheng”), the applicant had not attended the Tribunal hearing after the Tribunal had refused a request for an adjournment where the applicant had given no reason, or no reasonable reason, for his adjournment request: Zheng at [14] and [15] per Judge Jarrett . The Federal Circuit Court held that the Tribunal’s refusal of the applicant’s adjournment request was dealt with reasonably and involved no error of law and no jurisdictional error: Zheng at [30] and [32]-[33] per Judge Jarrett. Zheng is of no assistance whatsoever to Mr Singh.
In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh 2014”), the Full Court of the Federal Court found that the Tribunal, in refusing to adjourn its decision making until after the applicant’s re-mark of IELTS test results, had exercised its discretion unreasonably.
In Singh2014 the Full Court of Appeal of the Federal Court held there were no grounds to believe the period required for the re-mark would be very long, given the frequency of the IELTS testing schedule and that “the whole exercise was aimed at producing for the Tribunal a verified and accurate mark of a test”: Singh 2014 at [75] per Allsop CJ, Robertson and Mortimer JJ. In this matter, however, the Tribunal held it was uncertain “if and when”
Mr Singh would become the subject of an approved business nomination: CB 199 at [32].
Singh 2014is therefore distinguishable from this matter because, contrary to Singh 2014,
there was an objective and intelligible justification given by the Tribunal for refusing the adjournment.
In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 (“Saeed”), the High Court found that Minister was obliged to provide an appellant, who critically was an offshore
(that is not in the migration zone) visa applicant, natural justice. By contrast, Mr Singh was not offshore, and was in the migration zone, and therefore the rationale in Saeed has no application in the circumstances, and even more so when, as the Court has found at [43]-[44] and
[48]- [54] above, that Mr Singh was in fact afforded procedural fairness (or natural justice) by the Tribunal.
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534 (“Zubair”) at [27]-[28] and [32] per Finn, Mansfield and Gyles JJ, is authority for the proposition that the Tribunal conducting merits review is able to “cure” defects in a delegate’s decision. The very task that the Tribunal undertook in this matter was to review the Delegate’s Decision, and in so doing, for the reasons otherwise set out generally above, the Tribunal Decision is free from jurisdictional error and cured any defects in the Delegate’s Decision. Zubair does not therefore assist Mr Singh in this matter.
Conclusion – case law referred to by Mr Singh
The Court has concluded that none of the case law referred to in Mr Singh’s
Written Submissions is of assistance in determining this matter, and none of it, when considered in conjunction with the relevant facts of this matter, establishes any jurisdictional error in the Tribunal Decision.
Mr Singh’s further submissions
At hearing Mr Singh made further oral submissions, raising the following issues:
(a)that his son, who is now five and a half years old, and who was born in Australia, does not go to school;
(b)that Mr Singh and Ms Kaur cannot make plans for a second child due to their financially insecure situation in India because Mr Singh has no employment;
(c)that Ms Kaur had fallen pregnant, but the pregnancy had miscarried; and
(d)that as a result of Mr Singh’s 457 Visa cancellation, he was unemployed for a period of over five years, and that due to the length of time he was unemployed he cannot obtain a Skills Assessment from the relevant assessing authority in Australia.
These difficulties are not matters which are capable of constituting jurisdictional error in the Tribunal Decision, and are therefore not matters that the Court can address, as the Court’s jurisdiction is limited to determining whether the Tribunal Decision is affected by jurisdictional error.
The 457 Agent Newsletter - cancellation of 457 Visas where period of unemployment exceeds 90 days
Before considering the issues arising in relation to the 457 Agent Newsletter it is convenient to refer to the legislative provisions relevant to the Tribunal Decision to cancel Mr Singh’s
457 Visa which were as follows:
(a)in s 116 of the Migration Act that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa …
(b)the conditions which attached to Mr Singh’s 457 Visa, included Condition 8107 which relevantly provides as follows:
(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457
(Temporary Work (Skilled)) visa that was granted on the basis that the holder met
the requirements of subclause 457.223(2) or (4):
…
(b) if the holder ceases employment — the period during which the holder ceases
employment must not exceed 90 consecutive days; and
…
It was not in dispute that Condition 8107(3)(b) had not been complied with by Mr Singh.
The 457 Agent Newsletter published in October 2016 by the Department was relevantly referred to in Singh – Reinstatement at [27]-[28] per Judge Riley, as follows:
27. The Tribunal noted at CB195 that the first applicant’s agent had submitted that a policy update distributed by the Immigration Department to migration agents had stated that:
·... ‘cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer but have lodged a new nomination application within 90 days.’
The agent noted that the first applicant in this case had lodged a new nomination application within 90 days of the cessation of his employment with Matangi Enterprise Pty Ltd.
28.The newsletter distributed by the Department to migration agents containing that advice is set out at CB180 to CB181. It says in a large box with the heading Cancellation of subclass 457 visas:
·Agents have recently raised concerns about what they have indicated is an increase in cancellation action taken against subclass 457 visa holders.
·457 program management has confirmed with our cancellations team that cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer, but have lodged a new nomination application within 90 days.
·...
·(emphasis in original)
In Singh – Reinstatement at [38]-[40] per Judge Riley the Court concluded that:
38.The Tribunal, in that paragraph, noted that the first applicant had taken steps to commence employment with another employer within the 90 days, but noted that the first applicant had been without a successfully nominated position for 10 months. However, the Tribunal, in that paragraph, did not actually grapple with the fact that a statement had been made in a newsletter to migration agents that cancellations would not occur where a new nomination was lodged within 90 days of ceasing employment.
39.I do not accept that the Tribunal, anywhere in its reasons for decision, indicated that it considered the contents of the newsletter. While I accept that the Tribunal is not bound to follow policy, I consider that an assurance of the type made in that newsletter did require the Tribunal to at least consider it and provide reasons if it were going to depart from it. The Tribunal did not do that in the present case.
40.Although the Tribunal set out in its reasons for decision the submission that the applicants’ advisor had made about the newsletter, the Tribunal did not demonstrate in any way that it had considered it. It seems to me that this, at the very least, is arguably unreasonable. For that reason, the prospects of success of the substantive application favour reinstatement.
It is important to observe that the 457 Agent Newsletter (at CB 180) also provided as follows:
Important
: This newsletter is not a substitute for formal policy
[Emphasis in original.].This qualification was not referred to in Singh – Reinstatement.
In Singh v Minister for Immigration & Citizenship [2011] FCAFC 27; (2011) 190 FCR 552; (2011) 276 ALR 180 (“Singh 2011”) at [45] and [47] per Keane CJ, Collier and Logan JJ,
held that administrative decision-makers had no authority to vary the statutory timeframe for seeking review, observing in particular at [47] as follows:
47.The second assumption underlying the third argument put on behalf of the appellants is that the officers of the Department (or the Tribunal) might be taken by Mr Young to have power to alter the timeframe for objection laid down by the legislature.
That assumption is contrary to the fundamental principle of the separation of powers: that officers of the executive government have no power to alter the state of affairs ordained by the legislature. It is this principle that underlies the proposition that there can be no estoppel against a statute: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55. In a passage which was clearly obiter, his Honour countenanced the possibility that an appeal against the disallowance of an income tax deduction might be allowed on the basis of an estoppel, notwithstanding that the claim did not fall within the terms of statute, in circumstances where the taxpayer had continued to incur the expenditure on the strength of the Commissioner’s mistaken allowance of earlier claims for such a deduction. While such reasoning arguably anticipated an approach taken by Denning J (as His Lordship then was) in Robertson v Minister of Pensions [1949] 1 KB 227 at 232, it is contrary to the Australian authorities mentioned. Further, that approach was expressly and unanimously disapproved by the House of Lords shortly thereafter: Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 845, 848, 849, 850. Subsequent developments in England whereby substantive relief is afforded to those in whom a “legitimate expectation” has been engendered by the action of a public official, q.v. R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 have not found favour in Australia: Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [65]- [69] and [48]. To countenance the creation of a substantive right, contrary to express statutory provision, on the basis of a representation made by an officer of the Executive would be a considerable retrograde step in terms of principle and all the more so in under a constitution which expressly provides for a separation of powers. It must be recalled that Article 1 of the Bill of Rights 1688 (Eng) provides,
“That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal”.It is also useful to set out the role of Government or Ministerial policy in administrative decision-making as recently precisely summarised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767 (“MDXJ”) at [17] per Besanko J:
17. The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642–643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569).
In Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [60] per Judge Lucev of this Court, having cited the above passage from MDXJ, observed as follows:
60.The application, or non-application, of government policy by an administrative decision-maker, such as the Tribunal, does not automatically relieve the administrative decision-maker from considering a claim made by an applicant for judicial review where the claim has a basis in the relevant criteria, and “a Minister’s policy must leave … [the Minister] free to consider the unique circumstances of each case”: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 641 per Brennan J; see also Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; (1990) 101 ALR 151, FCR at 157 per Spender J; Zhang at [36] per Cameron FM. Government policy cannot form a pre-determined frame outwith the Tribunal ought not, where it is appropriate to do so, venture.
In its assessment of matters the Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [46]-[48] per Lindgren, Rares and Foster JJ.
Finally, reference should be made to ApplicantWAEE v Minister for Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ, where the Full Court of the Federal Court observed that where:
(a)the reasons given are otherwise comprehensive; and
(b)the issue has at least been identified at some point,
the inference that an administrative decision-maker (there, the former Refugee Review Tribunal) has failed to consider an issue should not be too readily drawn.
In this case the Departmental decision contained in the 457 Agent Newsletter to not apply the
90 day limit prescribed by Condition 8107 was unlawful, and of no effect, as it set aside a legislative prescription in the Migration Regulations approved by Parliament: Singh 2011 at [47] per Keane CJ, Collier and Logan JJ. There can be no jurisdictional error by the Tribunal in failing to consider or apply a Departmental decision which is unlawful, and in correctly applying the law in the form of Condition 8107.
Even if the Departmental decision contained in the 457 Agent Newsletter to not apply the
90 day limit prescribed by Condition 8107 was not unlawful, and constituted Departmental “policy” (which must be doubtful given the qualification, set out at [103] above, in the
457 Agent Newsletter), it is clear that the Tribunal was aware of the “policy”, and provided otherwise comprehensive reasons for not applying it: WAEE at [47] per French, Sackville and Hely JJ. In that regard the Tribunal:
(a)
referred to the submission made on Mr Singh’s behalf concerning the non-application of the 90 day limit set out in the 457 Agent Newsletter, and quoted directly from the “policy” set out in the 457 Agent Newsletter, and having done so acknowledged and referred to Mr Singh’s submission that he did lodge the February 2016 Nomination Application within 90 days of his employment with Matangi ending: CB194-196 at
[7 (at the bottom of CB 195)];
(b)
acknowledged that it had received a copy of the 457 Agent Newsletter as part of
Mr Singh’s submissions to the Tribunal: CB194-196 at [7 (at the bottom of CB 195)];
(c)
set out, in not insignificant detail at CB 194-196 at [7] and 196-197 at [11]-[15],
a chronology of events relating to Mr Singh’s:
(i)original employment with Oz Green Homes;
(ii)his subsequent employment with Matangi, ending on 8 December 2015;
(iii)
a new offer of employment from Oz Green Homes, and the cessation of
Oz Green Homes sponsorship (by expiration of time) on 17 December 2015;
(iv)the lodging of the October 2015 Nomination Application by Oz Green Homes, and its refusal on 8 February 2016;
(v)the lodging of the February 2016 Nomination Application by Oz Green Homes, and its refusal on 27 September 2016, and that that refusal was the subject of a separate application to the Tribunal for review;
(vi)the lodging of the October 2016 Nomination Application by Oz Green Homes, and Mr Singh’s request that the Tribunal exercise its discretion to await the outcome of the October 2016 Nomination Application; and
(vii)Mr Singh’s being unemployed from December 2015;
(d)expressly found that Mr Singh had been unemployed since 8 December 2015, and that there was therefore non-compliance with the 90 day re-employment limit in Condition 8107: CB 198 at [25];
(e)said that it had “had regard to the relevant circumstances including but not limited to matters identified in” (underlining added) visa cancellation guidelines set out in the Department’s policy guidelines in PAM3: CB 198 at [27];
(f)stated that “there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant” (underlining added): CB 198 at [28], and in a footnote referred to a judgment of the Full Court of the Federal Court, two judgments of the Federal Court, and four judgments of the Federal Magistrates Court in support of that statement; and
(g)observed that the PAM3 guidelines “[n]evertheless, … provide a useful starting point in respect of the exercise of its discretion”, and said that in “considering this matter, the [T]ribunal has also taken into account the submissions and evidence it received from … [Mr Singh]”: CB 198 at [29].
In circumstances where the Tribunal:
(a)
set out the terms of the Department’s “policy” of non-application of the 90 day
re-employment limit, a detailed chronology and assessment of the relevant facts, as well as stating that its consideration was not limited to matters identified in visa cancellation guidelines set out in the Department’s policy guidelines in PAM3, and that it had taken into account Mr Singh’s submissions and evidence (and where, in that regard, it had acknowledged receipt of the 457 Agent Newsletter, and set out the terms of the Department’s “policy” of non-application of the 90 day re-employment limit, and the fact of Mr Singh’s more than 10 month period of unemployment); and
(b)
said that it was not limited to matters identified in visa cancellation guidelines set out in the Department’s policy guidelines in PAM3, and observed that it could not go beyond the wording of the legislation in the application of policy, even where the policy was more favourable to an applicant than the legislation, which the Court considers was a reference to the practical application and effect of the Department’s “policy” of
non-application of the 90 day re-employment limit,
the Court finds that the Reasons given in the Tribunal Decision did refer to the Department’s “policy” of non-application of the 90 day re-employment limit (even though it did not need to: see [110] above), and are comprehensive, and it cannot be inferred that the Tribunal did not consider the Department’s “policy” of non-application of the 90 day re-employment limit.
It follows from the foregoing that any assertion that the Tribunal did not consider the Department’s “policy” of non-application of the 90 day re-employment limit is not made out, and that, in this regard, there is no jurisdictional error in the Tribunal Decision.
Conclusion - exercise of discretion to cancel under Migration Act, s116
Regarding the exercise of the discretion to cancel under s 116(1) of the Migration Act the Tribunal was satisfied that a ground for cancellation existed in s 116(1)(b) of the Migration Act. In determining whether or not to exercise its discretion to cancel the 457 Visa the Tribunal addressed the matters which were put to it by Mr Singh and Ms Kaur in opposition to the cancellation of Mr Singh’s 457 Visa.
The Tribunal Decision demonstrates that the Tribunal gave active consideration to the exercise, or otherwise, of the relevant discretion as it was required to do: Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 at [57] per Stone, Foster and Nicholas JJ. There is nothing to suggest that the exercise of the Tribunal’s power to affirm the cancellation of the 457 Visa by the Delegate was in any way contrary to the principles with respect to the reasonable exercise of a statutory discretion: Li. It follows that the Tribunal gave proper and active consideration to the exercise of the discretion under s 116(1)(b) of the Migration Act to cancel Mr Singh’s 457 Visa, and did not act unreasonably in so doing: Lafu; Li. The exercise of the discretion did not miscarry, and no jurisdictional error is evident in the Tribunal Decision.
Futility
Mr Singh’s 457 Visa was due to expire on 28 June 2017: CB 26-29.
The 457 Visa class was abolished on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth).
Prerogative relief may be refused where:
(a)“no useful result could ensue”: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or
(b)it would “lack utility”: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or
(c)it would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per
Bennett J.In this case, even if the Tribunal Decision were to be affected by jurisdictional error
(which it is not), the Court would have refused prerogative relief in the exercise of its discretion because there can be no difference to Mr Singh between his current position and the position he would be in following the grant of any relief because Mr Singh can no longer be granted a 457 Visa, that class of visa having been abolished, and his 457 Visa having expired.
CONCLUSIONS AND ORDERS
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error:
(a)on the grounds set out in the Judicial Review Application;
(b)on any possible grounds arising from Mr Singh’s Written Submissions;
(c)on any possible grounds arising from Mr Singh’s further submissions at hearing; or
(d)any matter arising in relation to the manner in which the Tribunal dealt with the issue arising from the 457 Agent Newsletter,
and it follows that the Judicial Review Application must be dismissed.
Further, even if jurisdictional error had been established, relief would not have been granted because it would be futile to do so.There will be orders accordingly, and also orders as indicated at [2] and [5] above.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Judge Lucev. Associate:
Dated: 8 December 2021
- AGLC
- Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 340
- Case
- [2021] FedCFamC2G 340
- Decision Date
CaseChat Overview and Summary
The Court examined the Tribunal's reasoning and found that it had carefully considered the evidence and applicable legal principles. The Tribunal had correctly determined that Mr Singh had ceased employment for more than 90 days, thereby breaching the visa condition. It also found that there was no jurisdictional error in the Tribunal's decision. The Court was satisfied that the Tribunal had exercised its discretion appropriately in not adjourning its decision-making, as there was uncertainty regarding the outcomes of the pending nomination applications and the potential for Mr Singh to remain in the immigration system by repeatedly seeking nominations from different businesses. Additionally, the Court found that the Tribunal had appropriately considered the statutory provisions and relevant case law, and there was no failure to exercise relevant powers or oversight of the Department’s delays.
In light of the above, the Court dismissed Mr Singh's application for judicial review, affirming the Tribunal's decision. The Court found that the Tribunal's decision was not tainted by any jurisdictional error and was based on a fair and proper consideration of the evidence and applicable law. The Court also noted that any relief sought by Mr Singh would be futile given that his visa had expired and the visa type had been abolished.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For the reasons set out at [56]-[77] above there is nothing in the submissions put by Mr Singh which establishes his claims that there was a failure by the Tribunal to comply with any legislative requirements or to exercise any relevant power which the Tribunal might have exercised in connection with Mr Singh’s review under ss 358(1), 359A, 359B(4), 359C(2), 360 and 363A of the Migration Act. These claims do not therefore establish any jurisdictional error in the Tribunal Decision.Migration Act, ss 420 and 353 and delay Mr Singh also alleged that the Tribunal had overlooked s 420 of the Migration Act and had not made a fair decision nor one based on the merits. The Tribunal was entitled to overlook s 420 of the Migration Act because it is a provision which applies to reviewable decisions under Part 7 of the Migration Act. The Tribunal Decision in this case relates to a reviewable decision under Part 5 of the Migration Act. There is, however, a provision in the equivalent terms to s 420 of the Migration Act in Part 5 of the Migration Act, namely s 353 of the Migration Act: Li at [13] per French CJ. Section 353 of the Migration Act is set out at [53] above. In relation to this claim Mr Singh submitted that the Tribunal:(a)did not provide him with a fair review by affirming the Delegate’s Decision, and that it could have provided him with enough time to provide further evidence, and waited for the decision on the October 2016 Nomination Application before making the Tribunal Decision; (b)failed to take into account that he had lodged the October 2015 Nomination Application within the time allowed for a 457 Visa, and that there was a delay by the Delegate which led to the expiration of Standard Business Sponsorship (“SBS”) and nomination of the company, and that the Delegate advised him to withdraw the February 2016 Nomination Application and re-lodge the application for SBS and nomination; and(c)failed to consider the fact that the October 2015 Nomination Application was within time, and that if it had been acted upon in a timely manner by the Delegate, the SBS and the nomination would not have lapsed, and would have not resulted in any delays, and would not have led to the later cancellation of Mr Singh’s 457 Visa. Mr Singh states that the Tribunal failed to consider the issue of Departmental delay, and, in particular, alleged that it was “solely due to the delay and slow processing time of the Department of Immigration that has led to this predicament”: Mr Singh’s Written Submissions at page 5. There was no failure to take this matter into account by the Tribunal. The Tribunal set out the relevant chronology: CB 196-197 at [12]-[15] with respect to the various nomination applications. Further, the Tribunal noted that Mr Singh lost his job with Matangi in December 2015: CB 198 at [30], and again set out the chronology in relation to the detail of the February and October 2016 Nomination Applications: CB 198-199 at [31]-[33], before going on to note that "the department did not make decision until 27 September 2016 (almost eight months latter [sic])”: CB 199 at [33]. Finally, the Tribunal specifically noted at CB 199 at [35] that:… it has been more than 10 months since the applicant ceased his employment the company [Matangi] that was an approved standard business sponsor and that successfully nominated the applicant for a position … within the business. Based on the evidence before me, I am satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, [have] ceased on 28 June 2017.