Talukder v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1397
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Talukder v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1397
File number(s): SYG 1748 of 2021 Judgment of: JUDGE LAING Date of judgment: 19 December 2024 Catchwords: MIGRATION – application for review of a summary dismissal decision made by a Registrar – where the substantive application has no reasonable prospect of success – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth) ss 359A and 359AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13 and 21.02
Migration Regulations 1994 (Cth) Schedule 2, cl 187.233
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29
Sandhu v Minister for Immigration and Citizenship [2013] FMCA 140
Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267
Division: General Number of paragraphs: 44 Date of hearing: 13 December 2024 Place: Sydney Applicant: In person via telephone Solicitor for the First Respondent: Mr S Knuckey, Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1748 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAZIBUL HASAN TALUKDER
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 2 December 2024 be dismissed.
2.The Registrar’s orders made on 19 November 2024 be confirmed.
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 LAING:
The applicant seeks review of a Registrar’s decision made on 19 November 2024. By that decision, an application for judicial review (Substantive Application) was summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), with costs.
The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was) affirming a decision of a delegate (Delegate) of the first respondent (Minister). The Delegate had refused to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (187 visa).
BACKGROUND
The applicant applied for the 187 visa on 7 December 2017 on the basis of a nomination lodged by his nominating employer (Nominating Employer).
The Delegate refused the visa application on 24 January 2019. The Delegate observed that the nomination referred to in cl 187.233(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had been refused. The Delegate therefore found that the applicant was unable to meet cl 187.233(3), which required the nomination to have been approved.
On 11 February 2019, the applicant applied for review of the Delegate’s decision by the Tribunal.
The applicant attended a hearing before the Tribunal on 16 November 2020.
On 27 August 2021, the Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERION
The criterion at issue before the Tribunal was cl 187.233 of Schedule 2 to the Regulations, which provided:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
THE TRIBUNAL’S DECISION
The Tribunal observed that the Nominating Employer had applied for review of the nomination refusal, but had then withdrawn its application (at [13]).
The Tribunal accepted that the circumstances that led to the nomination refusal linked to the applicant’s visa application were beyond his control (at [16]). The Tribunal considered at [17]-[19]:
17. While the Tribunal appreciates and considers it understandable that Mr Talukder is upset and extremely distressed by what has happened, it remains the case that the application for the nomination of the position related to his Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application. This means that the matter has been finalised.
18. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. The Tribunal acknowledges that the refusal of the application for the visa has placed Mr Talukder in a most unfortunate position, which is not of his own making. However, the Tribunal has no discretion in relation to the requirement that the related nomination application be approved.
19. The Tribunal appreciates that Mr Talukder wishes to make another visa application. However, the applicable criteria for the grant of the Subclass 187 visa application that Mr Talukder made on 7 December 2017 cannot be satisfied by the lodgement of any subsequent visa application. In the circumstances and having regard to the objective of the Tribunal, the Tribunal declined to defer making its decision in the present matter pending Mr Talukder making another visa application.
Having regard to the fact that the nomination had been refused, and the application for review of that decision had been withdrawn, the Tribunal concluded that the applicant was unable to meet cl 187.233(3) of Schedule 2 to the Regulations. Accordingly, the Tribunal affirmed the Delegate’s decision (at [20]-[26]).
PROCEEDINGS BEFORE THIS COURT
The applicant sought review of the Tribunal’s decision by this Court through an application filed on 17 September 2021.
The response filed by the Minister indicated that summary dismissal was sought pursuant to r 13.13 of the GFL Rules on the basis that the application had no reasonable prospects of success.
On 19 November 2024, orders were made by a Registrar summarily dismissing the Substantive Application, with costs.
The applicant applied for review of the Registrar’s decision on 2 December 2024. By email to my Associate, the applicant requested leave to attend the hearing via telephone or MS Teams video due to his longstanding residence in Tasmania. The applicant was permitted to attend the hearing in this manner.
LATE FILING OF THE APPLICATION FOR REVIEW
Rule 21.02(1) of the GFL Rules required that the application seeking review of the Registrar’s decision be made within 7 days. This did not occur. The review application was made on 2 December 2024, 13 days after the Registrar’s decision on 19 November 2024.
The Minister did not oppose the extension of time. In these circumstances, the extension was granted at the hearing. This was taking into account the applicant’s explanation for delay, the lack of opposition by the Minister and the limited period of delay involved.
SUMMARY DISMISSAL
The question of whether the Substantive Application ought to be summarily dismissed is required to be considered on a de novo basis.
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides as follows:
143 Summary judgment
…
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the GFL Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal’s decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.
MERITS OF THE UNDERLYING APPLICATION
The grounds relied upon by the applicant in the Substantive Application were stated as follows:
Ground 1
The Tribunal's decision is infected by legal error due its failure to give adequate procedural fairness to the applicant.
Particulars
The Tribunal held the hearing through MS Teams. Though, the Tribunal has the discretion to hold the hearing through MS Teams, however, the discretion should be exercised reasonably by providing procedural fairness to the applicant. It is relevantly noted that the Tribunal failed to make inquiry with the applicant whether he has necessary logistical facility including a private room for the hearing. As a result of failure of the Tribunal not making reasonable inquiries to decide whether it is reasonable to hold the hearing through MS Teams, the Tribunal exercised its discretion unreasonable and thus, denying procedural fairness to the applicant.
Ground 2
The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason , for affirming the decision under review.
Particulars
The Tribunal had the intention to put information to the applicant under S 359AA of the Migration Act prior to the hearing because the information the AAT put to the applicant under Section 359AA was the information related to AAT's decision (differently constituted) in relation to the nomination. The above decision was made on 18 August 2020 well before the hearing scheduled for the applicant's matter.
Despite that, the AAT decided not to put that information and invite the applicant to comment or respond and decided to surprise the applicant during the hearing. The Tribunal was aware that the applicant was a self-represented applicant and if such information under section 359 AA was put to the applicant prior to the hearing the applicant could have sought immigration advice to prepare response and representing him in the hearing. The action of the AAT surprising the applicant is not the intention of the Drafters of the Migration Act and the expectation of the Drafters is to provide maximum procedural fairness to the applicants.
Further, the Tribunal failed to explain to the applicant who a self-represented applicant of the difference between comment was on and respond.
Ground 3
The decision of the Tribunal is unreasonable.
Particulars
a. The Tribunal misunderstood the request of the applicant. The applicant request the AAT defer the decision until his nomination is approved. The Tribunal misunderstood the request and formed the view that the applicant requested to defer the decision to make another visa application.
b.The Tribunal misunderstood the criteria for the visa. The approval of the nomination is at the time of decision and not at the time of application.
(As per the original)
Ground 1
Ground 1 contended that the applicant was denied procedural fairness. The applicant contended that the Tribunal exercised its discretion to conduct the hearing by MS Teams without making adequate inquiries.
The Tribunal had a discretion as to whether to conduct the hearing in-person or remotely through means such as MS Teams. Subject to considerations of reasonableness, that discretion was for the Tribunal to exercise: see Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29 at [99] per Black CJ, Wilcox and Moore JJ
The Tribunal gave reasons for exercising its discretion to hold the hearing by telephone via MS Teams audio (at [9]). Those reasons were that:
(a)the hearing was held during the COVID-19 pandemic;
(b)the exercise of discretion was considered reasonable, having regard to the nature of the matter and the applicant’s circumstances;
(c)the Tribunal had the objective of providing a review mechanism that was fair, just, economical and quick;
(d)delay may be caused if the matter were not conducted by telephone; and
(e)the Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The reasons given provided an evident and intelligible justification for the exercise of discretion: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]. The matters considered were, clearly enough, capable of informing the exercise of discretion. The applicant has not demonstrated, even propositionally, that this reasoning was not open to the Tribunal.
The applicant contended that it was unreasonable for the Tribunal not to have made inquiries as to whether he had the necessary facilities, including a private room, for the conduct of the hearing.
However, there is no suggestion in the evidence that the applicant raised any concerns regarding his ability to access a private room or otherwise when responding to the hearing invitation that was sent by the Tribunal. That invitation stated: “[p]lease ensure that you are in a private place where you will not be interrupted” (CB 92). The invitation instructed the applicant to advise the Tribunal as soon as possible if unable to participate in the telephone hearing (CB 93). In the response form, the applicant ticked the box indicating “No” in relation to the question of whether there was any issue that may affect his ability to take part in the hearing (CB 101). The materials do not otherwise indicate any inability on the part of the applicant to have taken part in the hearing before the Tribunal.
Having regard to the above, it is apparent that this ground has no reasonable prospect of success.
Ground 2
Ground 2 contended that the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) (Act) (through its application of s 359AA). In this regard, it is suggested that the Tribunal failed to explain to the applicant (who was self-represented) the difference between comment and response.
However, the applicant has not explained why the Tribunal was under an obligation to do so in order to comply with s 359AA of the Act. There is authority to the contrary: Sandhu v Minister for Immigration and Citizenship [2013] FMCA 140 at [55] per Emmett FM (from which an appeal was dismissed by Cowdroy J in Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842).
The Tribunal’s decision record (at [13]) indicates that the Tribunal gave the applicant clear particulars of the information in question, explained to the applicant the relevance of the information and the consequences of it being relied upon, and invited the applicant to comment on or respond to it. It is unclear how the distinction between comments and response could be said to have impeded the applicant’s understanding in a manner capable of resulting in non-compliance with s 359AA of the Act. The Tribunal’s decision record indicates that the applicant did respond, by providing comments orally, at the hearing before the Tribunal. There is no indication that the applicant raised any difficulty with the Tribunal in understanding the difference between comments and response.
The particulars to the ground suggested that the applicant was provided with insufficient opportunity to comment on account of the information only being presented to him at hearing. However, the Tribunal’s decision record indicates that the Tribunal complied with s 359AA(1)(b)(iii) of the Act, by informing the applicant that he did not need to comment or respond immediately and asking if he wished to seek additional time. The decision indicates that the applicant elected to respond immediately, and did not seek additional opportunity to comment or respond. In these circumstances, it is difficult to see how the Tribunal’s election to use the procedure in s 359AA of the Act at hearing could be argued to have been legally unreasonable or to have otherwise resulted in relevant error on the part of the Tribunal. This is notwithstanding the ability of the Tribunal to have issued the invitation earlier, by other means.
Having regard to the above, I accept the Minister’s submission that ground 2 has no reasonable prospect of success.
Ground 3
Ground 3 contended that the Tribunal’s decision was unreasonable because the Tribunal misunderstood the applicant’s request to defer its decision until the nomination was approved. The Tribunal was said to have incorrectly understood that the request was to defer the decision to allow the applicant to make another visa application. Additionally, the ground suggested that the Tribunal misunderstood that the approval of the nomination was a time of decision requirement.
It appears from [19] of the Tribunal’s decision that the Tribunal thought that the applicant had sought deferral pending the making of a further visa application. However, there is no transcript or audio in evidence demonstrating exactly what was or wasn’t said at the Tribunal hearing.
In any event, as was submitted by the Minister, the difficulty for the applicant was that he was unable to meet the criteria for the visa in circumstances where the nomination had not been approved and the Nominating Employer had withdrawn its application for review before the Tribunal. The original nomination was therefore unable to be approved and no other nomination was capable of meeting the criterion in issue: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 (Singh) at [82]-[90] per Mortimer J (as her Honour then was) (Jagot and Bromberg JJ agreeing). In these circumstances, even if there was some misunderstanding regarding what the applicant wished to do, it is difficult to see how this arguably could have made any difference to the decision.
The Tribunal’s decision record discloses no arguable basis for finding that the Tribunal misunderstood that the criterion was required to be met at the time of decision. The Tribunal found, at the time of decision, that the criterion was unable to be met.
Having regard to the above, I accept the Minister’s submission that ground 3 has no reasonable prospect of success.
Futility
For the reasons given above, I also accept the Minister’s submission that the relief sought by the applicant is futile: Singh at [82]-[90]. If I were to remit the matter, the Tribunal would have no option other than to reaffirm the Delegate’s decision. The applicant in this case is unable to meet the criteria for the visa. The Court would not grant relief in these circumstances.
As was submitted by the Minister, this provides a further basis upon which this matter has no reasonable prospect of success.
Costs
At the hearing before the Court, the applicant requested that the costs order made by the Registrar be reduced as he had difficulty in meeting it. Whilst this is understandable, inability to pay is not usually regarded as sufficient reason for not making a costs order. The amount ordered appears to have been a reasonable amount, having regard to the work performed by the Minister in the leading up to the making of the order (including the preparation of the Court Book, filing of written submissions and attendance at hearing). No basis for finding otherwise was suggested by the applicant.
CONCLUSION
Having regard to the above, the application for review of the Registrar’s decision will be dismissed, with that decision being confirmed.
I will hear from the parties in relation to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 19 December 2024
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