Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 93
•29 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 93
File number(s): PEG 70 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 29 September 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence – whether the agent’s alleged conduct amounted to “a fraud on the Tribunal” – whether the applicants were denied procedural fairness – whether providing a response to a hearing invitation amounts to a response to a s 359A invitation – whether the Tribunal should have deferred its decision – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 351, 359, 360, 363, 476
Migration Regulations 1994 (Cth), reg 4.17(4), cl 187.233 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Craig v State of South Australia (1995) 184 CLR 163
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233; (2011) 194 FCR 11
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sajjan v Minister for Immigration & Border Protection [2016] FCCA 3093
Singh v Minister for Immigration & Anor [2019] FCCA 2343
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 24 September 2021 Place: Perth Applicants: First applicant in person on behalf of the applicants Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Hellmore Lawyers ORDERS
PEG 70 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPREET SINGH
First Applicant
AMANDEEP KAUR
Second Applicant
SUBHREEN KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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 KENDALL:
BACKGROUND
The first applicant in this proceeding is a citizen of India (Court Book (“CB”) 2). The second applicant, also a citizen of India, is his wife (CB 3-4). The third applicant is their child (CB 5). The first and second applicants arrived in Australia in February 2009 as the holders of Temporary Business Entry (Class UC) (Subclass 457) (Temporary Work (Skilled)) visas (CB 27). The third applicant was born in Australia (CB 5).
On 4 February 2017, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (the “visa”) (CB 1-15). He was sponsored by Curry Brothers Pty Ltd (CB 37) for the position of “Cook” (CB 8). The first applicant’s wife and their child were included in the visa application (CB 3-6).
On 26 March 2018, a Ministerial delegate refused the nomination lodged by Curry Brothers Pty Ltd (CB 70).
On the same day, the then Department of Home Affairs (the “Department”) invited the applicants to comment on the fact that the nomination lodged by Curry Brothers Pty Ltd had been refused (CB 57-60). The applicants did not respond to that invitation to comment.
On 3 May 2018, a Ministerial delegate refused to grant the applicants the visa (CB 69-73). The delegate was not satisfied that the first applicant met cl 187.233(3) of the Migration Regulations 1994 (Cth) (the “Regulations”) as the first applicant was “not the subject of an approved nomination”. In the circumstances, the second and third applicants failed to meet the requirements of cl 187.311(a) of the Regulations (CB 71).
On 18 May 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 74-76). That application listed a registered migration agent under the heading “Representative details” (CB 75).
On 16 February 2021, the Tribunal wrote to the applicants (through their migration agent) and invited them to attend a hearing before the Tribunal scheduled for 17 March 2021 (CB 81-86). This invitation enclosed a form entitled “Response to Hearing Invitation” and requested the applicants to complete it and return it to the Tribunal within seven days (ie, by 23 February 2021) (CB 85).
On 23 February 2021, the Tribunal also invited the applicants to comment on or respond to information that the Tribunal had affirmed the decision of the delegate to refuse to approve the nomination application made by Curry Brothers Pty Ltd.” (the “s 359A Invitation to Comment or Respond”) (CB 87-90). That invitation was sent to the applicants’ representative via email (CB 87).
The s 359A Invitation to Comment or Respond requested a response from the applicants by 9 March 2021. Relevantly, the Tribunal advised as follows in that correspondence:
Your comments or response should be received by 9 March 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 9 March 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 9 March 2021 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
Consequences of not responding
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
That same day (23 February 2021), the first applicant personally emailed the Tribunal the completed “Response to Hearing Invitation” form (CB 91-95). The applicants’ representative emailed an identical copy of the form to the Tribunal later on that same day (CB 96-97).
On 12 March 2021, the Tribunal wrote to the applicants (through the applicants’ representative) to advise that, as no response had been provided in relation to the s 359A Invitation to Comment or Respond by 9 March 2021, the applicants had “lost any entitlement” to appear before the Tribunal. As such, the applicants were advised that the hearing had been cancelled (CB 98-100).
On 16 March 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 104-107).
On 16 April 2021, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is four pages long and spans 19 paragraphs. One page consists of an extract of cl 187.233 of Schedule 2 of the Regulations.
The Tribunal began by identifying the type of visa the applicants were seeking (at [1]-[2]). The Tribunal then identified the criteria for the grant of the visa (at [3]) and noted that the first applicant was seeking the visa in the Direct Entry stream to work in the nominated position of Cook (at [4]).
The Tribunal noted that a Ministerial delegate had refused the visas because the first applicant did not meet the requirements of cl 187.233 of Schedule 2 to the Regulations as the nomination application made by the first applicant’s prospective employer had been refused in an earlier Tribunal decision (at [5]).
The Tribunal noted that the applicants were represented in relation to the review by their registered migration agent (at [6]) and that the applicants had been invited to attend a hearing via telephone scheduled for 17 March 2021 (at [7]).
The Tribunal noted that the first applicant had completed a “Response to Hearing Invitation Form” on 23 February 2021 advising that he would participate in the hearing (at [7]).
The Tribunal then explained it had written to the applicants on 23 February 2021 to invite them, pursuant to s 359A of the Act, to comment on the fact that the nominator’s application for the nominated position was not approved (at [8]). The Tribunal noted that in that correspondence the applicants had been advised that this information was relevant because it was a requirement for the grant of the visa that the position detailed in the visa application was the subject of an approved nomination (at [9]). Further, if accepted and relied upon by the Tribunal, the information would be the reason or part of the reason for the Tribunal affirming the delegate’s decision (at [10]).
The s 359A invitation advised that if a response was not provided in writing by 9 March 2021, the applicants would lose any entitlement they might otherwise have had under the Act to appear at a hearing before the Tribunal (at [11]).
The Tribunal noted as follows:
12. No comments, response or request for an extension of time was received. On 12 March 2021, the Tribunal wrote to advise the applicant that the scheduled hearing had been cancelled as he had lost the entitlement to appear before the Tribunal.
The Tribunal then summarised the relevant criteria and requirements for the grant of the visa (at [14]-[15]).
The Tribunal ultimately found as follows:
16. As outlined above, the nomination application related to the visa application was refused by a delegate of the Minister. On 25 September 2020, the Tribunal affirmed the decision to refuse the nomination. Consequently, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233.
17. The applicant has only sought to satisfy the criteria for a Subclass 187 in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
18. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third applicants do not satisfy the secondary criteria for a grant of a visa, on the basis that they are not a member of a family unit of a person who holds a Subclass 187 visa.
On the basis of the above, the Tribunal affirmed the decision not to grant the applicants the visa (at [19]).
PROCEEDINGS IN THIS COURT
In their application for judicial review filed with this Court on 16 April 2021, the applicants provide four “grounds of review” as follows (without alteration):
•The AAT was wrong because they did not properly and genuinely consider my evidence and circumstances.
•I did not request an extention of time because i was told that my agent has requested it already.
•I did not knew i could not seek an extention of time after the time limit passed. Because of this it was unfair to not to give me more time to respond.
•I should be given real opportunity to satisfy the AAT that i meet the visa criteria.
The applicants also filed an affidavit sworn by the first applicant on 14 April 2021 which repeated the above “grounds of review” and attached a copy of the Tribunal’s decision.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed.
The materials before the Court thus include the applicants’ application for judicial review dated 16 April 2021, a Court Book numbering 108 pages (marked as Exhibit 1), written submissions filed by the Minister on 7 September 2021 and, as discussed below, a set of documents that appear to indicate that the first applicant has recently been offered permanent employment with a new employer (marked as exhibit 2).
At the hearing, the first applicant appeared without legal representation. The first applicant spoke on behalf of the second and third applicants. The Minister was represented by Ms Ellis.
The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented (and noting the principles outlined in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court gave the first applicant an opportunity to elaborate on (or particularise) the applicants’ grounds of review and outline any concerns that he might have with the Tribunal’s decision.
To assist the first applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the first applicant that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that he now had an offer of employment with another employer but could not accept that offer as he was barred from applying for another visa whilst onshore in Australia. He also reiterated his concerns that his agent had not advised him that could seek an extension of time from the Tribunal and, generally, felt that his agent had not properly advised him about his rights and obligations regarding the visa.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has addressed the applicants’ “grounds of review” broadly to ensure that, to the extent that any possible legal error is identified, it can be scrutinised by the Court: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Ground 1
Ground 1 provides:
1.The AAT was wrong because they did not properly and genuinely consider my evidence and circumstances.
In relation to ground 1, the Minister submits as follows in written submissions dated 7 September 2021:
13 Ground one fails because the Tribunal made the only decision open to it based on the uncontradicted evidence that the applicant did not have an approved nomination. The Tribunal was not required to consider the applicant’s other circumstances where it found that cl 187.233 was not satisfied.
For the reasons that follow, the Court agrees with the Minister in this regard.
The issue before the Tribunal was whether the first applicant was the subject of an approved nomination (a requirement of cl 187.233 of the Regulations).
Despite having been given an opportunity to do so, neither the applicants nor their representative provided any information to the Tribunal that satisfied the Tribunal that the first applicant was the subject of an approved nomination.
The information that was before the Tribunal, all uncontested, indicated unequivocally that no nomination existed. It cannot be said in the circumstances of this case that the Tribunal did not “properly and genuinely” consider the evidence before it. The Tribunal made the only decision open to it on the evidence before it.
Having heard from the applicant in this Court it is clear that “the evidence” the first applicant is referring to in ground 1 relates to his past employment with the nominator (group certificates etc). That information was not before the Tribunal and was not, in any event, relevant to the Tribunal’s assessment of the only issue before it – ie, whether the first applicant was the subject of a valid nomination existed.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides (without alteration):
2.I did not request an extention of time because i was told that my agent has requested it already.
It is not entirely clear what the applicants are seeking to address here. The applicants are clearly not satisfied with the advice they received from their migration agent and, arguably, this ground of review (read broadly) suggests that they were mislead by their agent and thought that they had, in fact, responded to s 359A Invitation to Comment or Respond. In those circumstances, a question arises as to whether the agent’s alleged conduct amounted to a “fraud on the Tribunal” (as per SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (“SZFDE”).
In this regard, the Court notes the Minister’s written submissions dated 7 September 2021 as follows:
14 Insofar as ground two alleges that the applicant’s failure to respond, or request an extension of time to respond, to the Tribunal’s s 359A invitation was due to fraud, such an allegation must be pleaded specifically and with particularity. The applicant ought to explain “what was said that was fraudulent, how it was fraudulent, and how it was acted upon”. No particulars of the alleged fraud have been proffered…
Negligence, incompetence or bad advice (while unacceptable) by a migration agent does not amount to jurisdictional error in the Tribunal’s decision: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
In making a finding of fraud, the Court is required to outline “what was said that was fraudulent, how it was fraudulent, and how it was acted upon”: SZFDE at [41].
In oral evidence before the Court, the first applicant stated that his agent had advised him that he would not represent him before the Tribunal as “there was no point proceeding now that the nomination application had been refused”. This does not support the first applicant’s apparent concern that the agent had previously told him told him that he had requested an extension of time within which to respond to the 359A Invitation to Comment or Respond. On the contrary, it appears to suggest that the agent was advising the applicants to withdraw their application before the Tribunal as they could not succeed without a valid nomination. That, arguably, represents solid advice rather than anything fraudulent.
Here, the Court has considered all of the evidence, written and oral, before it. There is insufficient evidence before the Court that details “what was said by the applicants’ agent that was fraudulent, how it was fraudulent, and how it was acted upon”. In the circumstances, the Court does not accept that there was “a fraud on the Tribunal”.
Insofar as the applicants continue to have concerns about the advice they were given by their migration agent, the Court refers them to the services offered by the Office of the Migration Agents Registration Authority. Unlike this Court, that entity is legislatively empowered to investigate and address migration services in Australia and any concerns about negligence or incompetence.
Ground 2 is dismissed.
Ground 3 and Ground 4
Grounds 3 and 4 provide:
3.I did not knew i could not seek an extention of time after the time limit passed. Because of this it was unfair to not to give me more time to respond.
4.I should be given real opportunity to satisfy the AAT that I meet the visa criteria.
On one level, ground 3 and ground 4 intersect with ground 2 and raise similar procedural fairness concerns.
Insofar as the applicants are suggesting that they “did not know that their agent had failed to request an extension of time”, the Court repeats what is detailed above in relation to ground 2.
The Court also notes the Minister’s written submissions dated 7 September 2021 as follows:
15 As to ground three, the s 359A invitation complied with the relevant legislative requirements and clearly stated that any request for an extension of time to respond to the relevant information must be made before the end of the prescribed period…
For the reasons that follow, the Court again agrees with the Minister in this regard.
The Tribunal invited the applicants to comment pursuant to s 359A of the Act. That invitation:
(a)was sent to “the last known email address provided in connection with the review”, namely, the email address of the applicants’ representative. The Tribunal’s compliance with s 379A(5)(b) and (d) meant that, by operation of s 379C(5), the applicants are deemed to have received the invitation at the end of the day it was emailed to their agent. This is so even if the applicants were not given the s 359A invitation by their representative;
(b)gave the applicants clear particulars of the information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision and why it was relevant to the review: the Act, ss 359A(1)(a) and (b);
(c)invited the applicants to comment or respond in writing: the act, ss 359A(1)(c) and 359B(1); and
(d)provided the applicants until 9 March 2021 to provide their response or to request an extension of time within which to respond. That is, the Tribunal provided the applicants the prescribed statutory period within which to respond: the Act, s 359B(2); the Regulations, reg.4.17(4).
Here, the s 359A Invitation to Comment or Respond complied with the relevant statutory requirements. The Tribunal gave the applicants a prescribed period within which to respond to the invitation and s 359B(2) of the Act requires that any response be given within that prescribed period. When that does not occur, the Tribunal has no power to “extend the time” for applicants to respond to the s 359A invitation: the Act, s 359B(4) and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”) at [45]-[48].
It is noted that the applicants (and their representative) did complete and provide to the Tribunal (on 23 February 2021) the “Response to Hearing Invitation” which had been sent to them on 16 February 2021 (CB 91-97). If the applicants are arguing that this amounts to “providing a response to the s 359A Invitation to Comment or Respond”, for the reasons that follow, the Court disagrees.
This Court has addressed this issue in detail in a previous judgment: Singh v Minister for Immigration & Anor [2019] FCCA 2343. As noted in that judgment, whether a “Response to Hearing Invitation” provided to the Tribunal constitutes “information” given in response to the s 359A invitation is a jurisdictional fact: Minister for Immigration & Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233; (2011) 194 FCR 11 at [19] (“Saba”).
In Saba, at [30]-[31] Jagot J stated:
30 Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: "comment on or respond to" the information in the case of s 359A(1)(c), and "the comments or the response" in the case of s 359C(2)(b). This indicates that an applicant may either "comment on" or "respond to" the information in the invitation, or both comment on and respond to the information. The choice - to comment, respond or both - is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines "to comment" as "to make comments or remarks [upon]"; by contrast, "to respond" is simply "to answer in speech or writing; to reply". An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
31 It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
(Emphasis added)
In Sajjan v Minister for Immigration & Border Protection [2016] FCCA 3093, the applicant, like here, was required to provide information that "demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased". The applicant provided information regarding a nomination which had expired and informed the Tribunal that he was seeking an extension of the validity of the expired nomination from the Department. It was held by the Court that this did not amount to the "giving of the requested information".
Here, the “Response to Hearing Invitation” is no more than a “template” questionnaire that allows applicants to outline any hearing requirements they might have, provide hearing contact details and specify any interpretation needs. Applicants can also detail whether witnesses will be called and outline what documents will be relied upon at the hearing.
The Court has reviewed the contents of the response provided here (CB 91-97). The information provided is best described as “skeletal”. It cannot, in anyway, be seen as a “reply or answer directed to the information requested by the Tribunal in the s 359 Invitation to Comment or Respond”.
Here, the s 359A Invitation to Comment or Respond complied with the relevant statutory requirements. The applicants did not respond with a comment or response within the required time. The Tribunal was thus correct when it decided to proceed on the basis that ss 359C(2), 360(2)(c) and 360(3) applied and that the applicants had lost any “right to appear” before the Tribunal. As this Court has observed in relation to the analogous s 359 of the Act in Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152 at [40] and Patel v Minister for Immigration & Anor [2020] FCCA 1295 at [33], the operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading operation” which is triggered by an applicant’s non provision of information in response to a s 359 or s 359A invitation: Hasran.
As rightly noted by Ms Ellis for the Minister, although (in these circumstances) the Tribunal did what it was required to do in relation to “the right to attend”, the Tribunal nonetheless retained the discretionary power to request further information from the applicants. The questions thus arises: should the Tribunal have done so here?
The Tribunal is not required to provide reasons for not exercising this discretionary power: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34. However, the decision to not exercise the discretion must be exercised reasonably.
The Court is satisfied that it was reasonable for the Tribunal not to adjourn in circumstances where:
(a)the delegate had also put information to the applicants for comment in March 2018 relevant to the same nomination and the applicants had failed to respond to the request for comment (CB 57-60);
(b)the applicants had, taking into account the invitation sent on 23 February 2021 which asked them to provide information about the status of the nomination in question, 14 days to provide the information, but had failed to do so; and
(c)there was nothing before the Tribunal that could conceivably lead it to conclude that the information required would be forthcoming.
The Court notes that in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [80] her Honour Justice Mortimer stated:
…there was nothing in the facts and circumstances of this review which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer (unspecified) period of time before finalising the review.
That reasoning applies here.
Overall, the Tribunal is not required to indefinitely defer its decision-making process, particularly in circumstances where it does not appear that any information will be forthcoming and where, as here, there is simply no evidence that a valid nomination exists.
It is clear from the above that the applicants were given a “real opportunity” to present their case. As rightly noted by Ms Ellis for the Minister, that opportunity came in the form of the s 359A Invitation to Comment or Respond. The applicants failed to respond to that invitation. The effect of a failure to respond to an invitation to comment on information under s 359A of the Act within the prescribed period is that the applicants lost their right to attend a hearing and the Tribunal lost its power to permit the applicants to attend.
On the basis of the above, the Court finds that the applicants were given a “real opportunity” to provide information to the Tribunal in accordance with the s 359A invitation but did not avail themselves of that opportunity. It cannot be said here that the Tribunal acted unreasonably or that that the applicants were treated unfairly.
Grounds 3 and 4 are, accordingly, dismissed.
Other – Ministerial Discretion
Before this Court the first applicant tendered a bundle of documents that seem to demonstrate that he has recently been offered employment with another company in Australia. He claims, however, that he is unable to accept this employment offer because of the requirement of s 48 of the Act. In effect, as he has now been denied a visa, he needs to leave Australia and reapply for a new visa – a visa which, he says, he will get as a result of this most recent employment offer.
The applicant explained that he cannot leave Australia as a result of the COVID pandemic. He notes that Western Australia’s strict “closed border” policy is such that he may not be able to re-enter the state once he leaves the country. He thus feels “trapped” as he now has what, he says, is a “valid sponsor” but can’t accept the employment offer because he may be unable to comply with the Act’s visa entry requirements.
COVID has dramatically altered the way in which applicants for migration visas seek to gain access to Australia’s migration system. While this Court makes no determination as to the first applicant’s prospects of ultimately receiving the visa he says he can now access, the Court does note that the situation he describes is arguably the result of an unprecedented global health crisis.
In that context, while the Court cannot assist the applicants (as no issue of jurisdictional arises) the Court draws the applicants’ attention to the Minister’s discretionary powers. Where, as here, the Tribunal has affirmed a decision refusing to grant the applicant a visa because of a failure to meet a mandatory criterion for the grant of that visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
DECISION
The application for judicial review fails to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Dated: 29 September 2021
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