Uddin v Minister for Immigration
[2020] FCCA 2997
•9 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UDDIN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2997 |
| Catchwords: MIGRATION – Subclass 187 visa – decision of the Administrative Appeals Tribunal – no approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359B, 359C, 360, 363A, 379A, 379C, 379G, 476 Migration Regulations 1994 (Cth), reg.4.17, cl.187.233 of sch.2 |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | MOHAMMAD GHIAS UDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 238 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 4 November 2020 |
| Date of Last Submission: | 4 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 9 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 238 of 2020
| MOHAMMAD GHIAS UDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh. He arrived in Australia on 6 February 2012 on a student visa (Court Book (“CB”) 66 and 108).
On 4 January 2017, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 9-20). The applicant was nominated in the position of Customer Service Manager by Jacmah Enterprises Pty Ltd (the “sponsor”).
On 10 July 2018, the applicant’s migration agent sent a number of supporting documents to the then Department of Home Affairs (CB 23-76).
On 9 August 2018, the Department invited the applicant to comment on information. The information was that the sponsor’s nomination had been refused and, as such, the applicant could not be granted the visa (CB 78-81). No response was received.
On 10 September 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 86-93). The delegate found that the applicant did not satisfy cl.187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not the subject of an approved nomination.
On 12 September 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 99-100).
On 22 June 2020, the Tribunal invited the applicant to comment or respond to the following information (CB 111-112):
The particulars of the information are:
• The application for approval of the nominated position made by Jacmah Enterprises Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
No response was received.
On 13 July 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 116-120).
On 4 August 2020, the applicant 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 succeed in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is four pages long and spans 21 paragraphs.
The Tribunal began by identifying the type of visa the applicant had applied for and the position the applicant had been nominated for. The Tribunal then summarised the delegate’s reasoning (at [1]-[5]).
The Tribunal noted that the issue in the case was whether the sponsor’s nomination had been approved (at [7]).
The Tribunal then states:
9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The Tribunal then explained that, on 18 May 2020, it had affirmed the delegate’s decision to refuse the sponsor’s nomination application (at [10]-[11]).
The Tribunal then set out in full the invitation to comment which was sent to the applicant on 22 June 2020 (at [12]).
The Tribunal was satisfied that the invitation had been sent to the applicant’s authorised representative and noted that there had been no response (at [13]-[14]).
The Tribunal stated that, in light of the applicant’s failure to respond to the invitation, the applicant had lost the right to attend a hearing. Accordingly, the Tribunal proceeded to make a decision on the information before it (at [15]).
The Tribunal then summarised the requirements of the visa. In particular, the Tribunal detailed what was required to meet cl.187.233 of the Regulations (at [16]-[17]).
The Tribunal continued:
18. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).
19. Therefore, cl.187.233 is not met.
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [20]-[21]).
Proceedings in this Court
The applicant’s application for judicial review filed on 4 August 2020 contains the following grounds of review:
The Second Respondent, in making its decision (or purported decision) of 13 July 2020 to affirm the decision of the delegate of the First Respondent to not to grant the Applicant a Regional Employer Nomination (Permanent) (Class RN) visa committed jurisdictional error in not considering
1. The unprecedented impact of the COVID-19 pandemic limiting my ability to prepare for the hearing of my review application and to obtain proper legal advice. In or about 20 June 2020 while restrictions were still in place I was unable to obtain the legal advice regarding the information that was sought by the Administrative Appeals Tribunal “the Tribunal”.
2. Failed to genuinely consider
(a) that the Department of Home Affairs took a long time to take the decision. When I applied for the visa, the visa processing time was shown on the Department's website was 6 months only. However, the Department took 20 months to process my visa application.
(b) My sponsoring employer, Jacmah Enterprises Pty Ltd applied for a review of the nomination application which was refused on 28 June 2018 to the Tribunal. However, the Tribunal took 20 months to consider that application. In the meantime, the Jacmah Enterprises Pty Ltd was shut down for some unavoidable reasons.
(c) The Tribunal did not consider the aspect of long delays as I had waited 4 years for the outcome of my applications and that prevented me to direct my mind to thinking about my career somewhere else.
3. Took into account irrelevant consideration.
The applicant was given an opportunity to file an amended application, supporting affidavits and an outline of submissions. No further materials were filed.
The materials before the Court thus include the judicial review application, a Court Book numbering 120 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on
27 October 2020.
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
At the start of the hearing the applicant advised the Court that he had tried to obtain a lawyer but could not do so. He stated that he was not an “expert” and had been a “victim of everything”.
Although not entirely clear, it is arguable that the applicant was requesting an adjournment so that he could seek legal assistance. That request was denied. The Court’s reasons for proceeding with the hearing and not granting an adjournment are as follows:
a)the applicant filed his application in this Court on 4 August 2020. He has had three months to engage the services of a lawyer. It is also the case that there is no right to legal representation in migration proceedings. Nor is it a basis for proceedings to be stayed: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68;
b)the “request” was made without notice on the day of the hearing in circumstances where the Court had convened and the Minister had prepared for the matter to proceed on the day. To adjourn would cause prejudice to the Minister and impact on the Court’s case management (noting that migration matters are now listed into August 2021). Further lengthy delay is not in the interests of justice; and
c)the Court accepts, and expects, that the applicant is not an expert. It is for that reason that the Minister (in its model litigant obligations) and the Court (in its duty to the self-represented litigant: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”)) will remain astute and alert to the possibility of any error. Any assistance the Court can render will be provided to the applicant.
To assist the applicant in this regard, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the 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] (“SZRUI”); 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 that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. 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.
When asked what he thought the Tribunal “did wrong”, the applicant stated that he was not invited to attend a hearing before the Tribunal. He also stated that his migration agent told him not to “write anything back” to the Tribunal (in response to the invitation to comment) as there would be “no point” in doing so.
The Court will address these submissions below.
Consideration
As the Court understands the applicant’s judicial review application, the applicant is stating that the Tribunal failed to consider the matters he particularises. The Court will refer to the particulars as “grounds” and address them accordingly.
Ground 1
By ground 1, the applicant contends that the Tribunal failed to consider:
The unprecedented impact of the COVID-19 pandemic limiting my ability to prepare for the hearing of my review application and to obtain proper legal advice. In or about 20 June 2020 while restrictions were still in place I was unable to obtain the legal advice regarding the information that was sought by the Administrative Appeals Tribunal “the Tribunal”.
The applicant’s argument appears to be that the Tribunal did not provide him sufficient time to respond to the invitation to comment in an environment where the coronavirus pandemic made it difficult to obtain advice.
This arguably contradicts the applicant’s submission to the Court that his migration agent told him that he did not need to respond (an issue which the Court will address below).
There was nothing before the Tribunal to suggest that the pandemic had made it difficult for the applicant to respond to the invitation. The Tribunal was not, therefore, required to consider the effect of the pandemic given it had never been put to it.
Further, there is no error in the way the Tribunal conducted the review. The Tribunal afforded the applicant procedural fairness as required by the Act. Whether or not there is a health pandemic does not alter the Tribunal’s procedural fairness obligations.
Here, the applicant was sent an invitation pursuant to s.359A of the Act. That invitation:
a)gave the applicant clear particulars of the information that the Tribunal considered was adverse to the applicant and why it was relevant to the review: the Act, s.359A(1)(a) and (b);
b)invited the applicant to comment or respond in writing: the Act, s.359A(1)(c) and s.359B(1);
c)was sent via email (a method specified in s.379A(5)(b) of the Act) to the applicant’s authorised recipient who is deemed to have received it for the applicant as per s.379C and s.379G of the Act on 22 June 2020: the Act, s.359A(2); and
d)provided the applicant until 6 July 2020 to provide his response. That is, the Tribunal provided the applicant the prescribed statutory period within which to respond: the Act, s.359B(2); the Regulations, reg.4.17(4).
In circumstances where the Tribunal provided the applicant the statutory prescribed period within which to respond, there was no denial of procedural fairness. Section 359B(2) of the Act states that responses are to be given within the prescribed period. They were not.
The invitation stated as follows:
If you cannot provide your written comments or response by 6 July 2020, 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 before 6 July 2020 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.
The applicant made no request for an extension, despite being advised that he could do so. If it was the case that the applicant was having difficulty obtaining advice because of the pandemic, he should have requested additional time and the Tribunal could then have considered that request. The applicant did not do so.
In circumstances where the applicant did not contact the Tribunal to request an extension of time, there was no ability for the Tribunal to provide additional time to the applicant. As per s.359B(4) of the Act, the Tribunal may only exercise the power in s.359B(4) to extend time if “a person responds” to the invitation. Here, the applicant did not respond.
In his oral submissions, the applicant expressed concern with the fact that “he was not invited to attend a hearing”. The reason the applicant was not invited to attend a hearing was because he had failed to respond to the invitation to comment. In those circumstances, not only had the applicant lost his right to attend a hearing, the Tribunal also lost the power to hold a hearing: the Act, ss.359C(2), 360(3) and 363A.
Accordingly, while the applicant feels he should have attended a hearing, there was no error in the Tribunal not inviting the applicant to attend a hearing.
The Tribunal afforded the applicant procedural fairness and acted reasonably in proceeding to make its decision on the review.
Ground 1 is, accordingly, dismissed.
Ground 2
In ground 2 the applicant argues that the Tribunal failed to genuinely consider:
(a) that the Department of Home Affairs took a long time to take the decision. When I applied for the visa, the visa processing time was shown on the Department's website was 6 months only. However, the Department took 20 months to process my visa application.
(b) My sponsoring employer, Jacmah Enterprises Pty Ltd applied for a review of the nomination application which was refused on 28 June 2018 to the Tribunal. However, the Tribunal took 20 months to consider that application. In the meantime, the Jacmah Enterprises Pty Ltd was shut down for some unavoidable reasons.
(c) The Tribunal did not consider the aspect of long delays as I had waited 4 years for the outcome of my applications and that prevented me to direct my mind to thinking about my career somewhere else.
The main complaint here relates to the length of the visa application process.
Delay in the processing of applications does not amount to jurisdictional error. While it is unfortunate that delays in visa processing are lengthy and that this will often have unintended consequences (such as businesses going into liquidation or closing down), this does not amount to jurisdictional error. This is simply a reflection of a system that is overwhelmed.
Delay is also not a “relevant” consideration for the Tribunal when considering whether the applicant should be granted the visa. No matter how extensive the delay and compelling the circumstances may be, all that was relevant was whether the applicant was the subject of an approved nomination.
The reason the applicant was not the subject of an approved nomination and the reason the nomination was not approved (i.e., because the delay in processing the visa meant that the business closed before it could be granted) were not relevant and, accordingly, not required to be “genuinely considered”.
Ground 2 is, accordingly, dismissed.
Ground 3
In ground 3, the applicant states:
Took into account irrelevant consideration.
The applicant has not identified what “irrelevant consideration” was taken into account.
In its duty to the self-represented litigant, the Court has itself examined the Tribunal’s decision to determine whether the Tribunal has taken into account any irrelevant considerations: MZAIB.
The Court notes that the Tribunal states:
8. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department
These paragraphs are confusing.
The Tribunal noted at [7] that the issue before it was whether the applicant was the subject of an approved nomination. This is hardly a matter which requires an assessment of credibility (which is what the Tribunal is referring to at [8]). Further, the applicant did not provide any evidence or submissions to the Tribunal. The only time the applicant provided evidence was when he was before the delegate. The Tribunal received nothing further from him.
These paragraphs are largely irrelevant. The fact that they are included does not amount to jurisdictional error. Their inclusion is of no consequence to the outcome. They are of no bearing on the ultimate issue of whether the applicant was the subject of an approved nomination.
When considering whether the applicant was nominated, the Tribunal took into account the relevant legal provisions and the information that was before it – specifically, the information that the sponsor’s nomination had been refused. This was relevant, and critical, to the Tribunal’s ultimate determination.
Ground 3 is, accordingly, dismissed.
Migration Agent
In the course of the applicant’s oral submissions, the applicant stated that his migration agent had advised him that he did not need to respond to the invitation as there was “no point” in him doing so.
To the extent that this advice was given, it rises no higher than negligent or bad advice. It does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
There is nothing to suggest that the migration acted fraudulently or that the agent’s conduct prevented the Tribunal from affording the applicant the procedural fairness obligations owed under the Act.
Any grievance that the applicant has with his migration agent’s conduct may be raised with the Office of the Migration Agents Registration Authority. This Court cannot assist the applicant with the concerns he has raised above.
Futility
Furthermore, any grant of relief in the current circumstances would be futile. The applicant’s sponsor’s nomination has been refused. That decision remains undisturbed and is not the subject to any challenge.
Accordingly, even if there was an error of the sort this Court can address, the applicant could not satisfy cl.187.233 of the Regulations on remittal. The Tribunal would have no choice but to arrive at the same decision.
Conclusion
The applicant’s application for judicial review fails to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error. Further, any remittal to the Tribunal would be futile.
The application is, accordingly, dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 November 2020
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