VARSI v MINISTER FOR IMMIGRATION & ANOR
[2018] FCCA 1280
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VARSI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1280 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – application for permanent employer sponsored visa – employer’s nomination not approved by Minister – failure of applicant to satisfy pre-condition of grant of visa – no jurisdictional error established – complaint regarding failure to provide written decision following oral decision – no error established. |
| Legislation: Migration Act 1958 (Cth), ss.65; 359A(1); 360; 368D(4); 474; 476 Migration Regulations 1994, rs.4.27B; 5.19(4)(h)(ii); 187.233 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 WZAVW v Minister for Immigration & Citizenship [2016] FCA 760 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Singh v Minister for Immigration & Border Protection & Anor [2017] FCAFC 105 Hasan & Ors v Minister for Immigration & Border Protection & Anor [2016] FCCA 1049 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR Dhillon v Minister for Immigration & Border Protection [2018] FCA 86 Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 |
| Applicant: | SHAIKH TOSIFAHEMAD HABIBREHEMAN VARSI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 56 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 30 April 2018 |
| Date of Last Submission: | 30 April 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms Milutinovic |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 16 February 2017 is dismissed.
The applicant pay the first Respondents costs fixed in the sum of five thousand five hundred dollars ($5,500.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 56 of 2017
| SHAIKH TOSIFAHEMAD HABIBREHEMAN VARSI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. On 31 July 2015, he lodged an application for a permanent employer sponsored visa, in the direct entry stream, pursuant to the provisions of the Migration Act 1958 (Cth)[1].
[1] Hereinafter referred to as “the Act”
One of the essential criterion to be satisfied, for the grant of the visa, is sponsorship by a nominated employer. In the applicant’s case, he was sponsored by Hot Stuff Food Pty Ltd, in respect of a position of retail manager.
On 17 February 2016, a delegate for the Minister for Immigration & Border Protection[2] refused the application on the basis that the Department had not approved the nomination of Hot Stuff Food Pty Ltd. Accordingly, the applicant was not able to satisfy the pre-conditions applicable to the visa.
[2] As the Minister for Home Affairs was previously known. Hereinafter referred to as “the Minister”
The applicant’s visa, more correctly described as a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa is subject to conditions specified in clause 187.233 of schedule 2 to the Migration Regulations 1994. In particular, the regulation reads as follows:
“(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;
(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 was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(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.”
In general terms, regulation 5.19(4)(h)(ii) provides that the Minister is required to be satisfied that the positon nominated in support of the visa is located in regional Australia and further that there is a genuine need for the nominator to employ the person in question.
The delegate declined Mr Varsi’s application, on the basis that the Minister had not approved Hot Stuff Food Pty Ltd’s nomination of the applicant, pursuant to the applicable regulation. On this basis, the Minister’s delegate found that the applicant had not satisfied criterion 187.233(3) of the Regulations.
As a consequence of this decision, on 8 March 2016, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. Concurrently with this application, Hot Stuff Food Pty Ltd also sought a review of the decision, pertaining to it, which had resulted in the refusal of its nomination of Mr Varsi’s position under the Regional Employer Program.
Pursuant to the provisions of section 360 of the Act, the Tribunal is required to invite each applicant before it to give evidence and present arguments relating to the issues arising in his review application. Such an invitation was issued to Mr Varsi, on 13 December 2016. Concurrently with this invitation, Hot Stuff Food Pty Ltd was also proffered an invitation to appear before the Tribunal, at the same time, which was 23 January 2017.
Both the applicant in the current matter and a representative of Hot Stuff Food Pty Ltd attended the hearing. In an oral decision, which has not been transcribed, the Tribunal dismissed Hot Stuff Food Pty Ltd’s application. In these circumstances, this court is unaware of the reasons provided in support of this decision.
On the same occasion, the applicant’s review application was also refused. On this date, a representative of the Tribunal wrote to the applicant in the following terms:
“This is to confirm that at the hearing on 23 January 2017 we made an oral decision on the application for review. We also explained the reasons for the decision at the hearing.
A written record of the outcome of review and a fact sheet containing information about our decisions are enclosed.
Under the Migration Act 1958 you may request a written statement of decision and reasons be provided. Your request must be in writing and received by us within 14 days of the date of your oral decision.”[3]
[3] See casebook at [85]
On 15 February 2017, Mr Varsi wrote to the AAT requesting a written statement of the decision. In his request letter, he indicated that he was aware that the request was out of time but nonetheless he sought the indulgence of the Tribunal on the basis that its decision had impacted on him in a big way and caused him a significant level of stress and anxiety.
On 14 March 2017, the applicant was belatedly provided with the requested written reasons.[4] The Tribunal had no legal obligation to provide the reasons, which were apparently produced after the applicant had commenced the current proceedings. These reasons are as follows:
“The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination made by Hot Stuff Food Pty Ltd was not approved by the Department.
The applicant appeared before the Tribunal in a combined hearing with the related file AAT ref no. 1601223 (Hot Stuff Food Pty Ltd).
In an earlier oral decision made on 23 January 2017 the Tribunal affirmed the department’s decision under review and refused to approve the nomination application made by Hot Stuff Food Pty Ltd (see related file AAT ref no. 1601223). That Nomination Application was lodged on 30 July 2015.
The Tribunal explained to the applicant that cl.187.233 requires that the nomination has been approved and has not been subsequently withdrawn and is still available to him.
As stated earlier, the Tribunal made a decision affirming the Department’s decision refusing the nomination. Therefore, Mr Sheikh’s visa application cannot succeed because the nomination has not been approved.
The Tribunal discussed these issues with Mr Sheikh at the hearing and explained to him the situation that he was in. Mr Sheikh said he understood the situation and it has left him in a difficult position.
The Tribunal explained to the applicant he is unable to satisfy cl.18.233 and the Tribunal must affirm the decision not to grant him a Regional Employer Nomination (Permanent) (Class RN) visa.”[5]
[4] See casebook at [101]
[5] See casebook at [101]
On 16 February 2017, the applicant commenced proceedings, in this court, in the nature of judicial review. He seeks that the decision of the AAT be quashed. The grounds of his application are as follows:
“1. Incomplete assessment of RSMS 187 application by Immigration Assessment Authority. [sic]
2. AAT did not consider all aspects and relevant documents provided at the hearing.
3. The oral decision letter from AAT dated 23 January 2017 mentions an attachments of written record of the outcome of review but haven’t received any written record to justify my case.”
These grounds are not otherwise particularised. In an affidavit filed in support of his application, the applicant has not expanded upon these grounds, making only reference to the provision of the initial oral decision and the subsequent delivery to him of the written record.
The legal principles applicable
Pursuant to section 65 of the Act, the Minister is required to grant any visa issuable under the Act, if satisfied that the criteria attaching to the visa have been satisfied. If those criteria are not so satisfied the Minister is to refuse to grant the visa.
In these circumstances, the essential question for the Ministerial delegate and so for the Tribunal on review, in acquitting the jurisdiction conferred upon each of them, was whether Mr Varsi had satisfied the various essential pre-conditions attaching to the grant of the visa in question specified in clause 187.233 of the Regulations.
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High court under section 75(v) of the Constitution.
This provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth. In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed and it be thereafter directed to re-hear their application according to law.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in relation to what are categorised as privative clause decisions. This expression is defined in section 474(2) as meaning a decision of an administrative character made under the Act. The decision relevant to these proceedings is such a privative clause decision.
Pursuant to section 474(1) privative clause decisions are deemed to be final and conclusive and as such, not capable of being subject to challenge in court or to the issue of any constitutional writ, which is the remedy sought by the applicants.
However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]
[6] See Craig v South Australia (1995) 184 CLR 163
It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.
Grounds of appeal
The applicant in these proceedings is unrepresented and does not appear to have had any legal assistance in preparing his case. I appreciate that jurisdictional error is a complex legal concept. In these circumstances, it is not surprising that Mr Varsi has not been able to particularise his case and point to an incident of jurisdictional error in the decision of either Ministerial delegate or the Tribunal.
It is not the court’s responsibility to search out a possible ground of jurisdictional error and make the applicant’s case for him or her. In addition, the Federal Court, in a number of decisions has held that a failure to particularise a ground of review is sufficient basis for it to be dismissed.[7]
[7] See SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [21] per Reeves J; WZAVW v Minister for Immigration & Citizenship [2016] FCA 760 at [35] per Gilmour J
Grounds 1 and 2 assert that the Tribunal failed to consider issues and documents raised by Mr Varsi on the review application. He does not specify what these issues and documents are, nor are they referred to in the Tribunal decision.
The difficulty for the applicant is that the success or otherwise of his application necessarily depended on the outcome of the application by Hot Stuff Food Pty Ltd. Necessarily, if Hot Stuff Food Pty Ltd’s application was declined, it was impossible for Mr Varsi to satisfy the criterion specified in clause 187.233(3).
In its written submissions, the first named respondent has submitted as follows:
“The dispositive issue in the present review was that the applicant did not have an approved nomination. As such, the first respondent submits that the only conclusion property open to the Tribunal was that the applicant did not satisfy cl 187.233, a mandatory criteria for the grant of the Visa.
Insofar as the applicant’s complaint is against the Tribunal’s decision of 23 January 2017 to affirm the nomination decision, that issue cannot properly be raised in this application which only relates to the Tribunal’s review of the delegate’s decision. It would be open to Hot Stuff Food Pty Ltd to lodge a judicial review application against the Tribunal’s decision on the nomination. However, the first respondent notes that no such application was lodged within time, or at all.”[8]
[8] See first respondent’s written submissions at [19]-[20]
This is, in my view, correct. In strict terms, I am only dealing with Mr Varsi’s application although, from his perspective, for obvious reasons, his application is inextricably bound up with the application made by Hot Stuff Food Pty Ltd.
As I indicated to counsel for the Minister, during the hearing of Mr Varsi’s application, I do not know whether there are any aspects of the decision pertaining to Hot Stuff Food Pty Ltd, which are potentially subject to any submission that the reasoning adopted therein is vitiated by any aspect of legal unreasonableness. I simply do not know why Hot Stuff Food Pty Ltd was unsuccessful.
In Minister for Immigration & Citizenship v Li[9] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[9] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
In this context, I raised with counsel for the first respondent, the theoretical possibility that if the Tribunal had determined Hot Stuff Food Pty Ltd’s application in a legally unreasonable way, say by exhibiting obvious bias against it, would this have any possible implications for the legal reasonableness of the dependent decision affecting the applicant?
The difficulty arising being that this court has no way of assessing the first decision and, in any event, it is not subject to judicial review. It being the position that for reasons of both pragmatism and convenience, the Tribunal elected to deal with these related but distinct applications consecutively.
The Full Court of the Federal Court considered an analogous situation in Singh v Minister for Immigration & Border Protection & Anor.[10] It too was a case relating to a visa under the direct entry stream of the Regional Sponsored Migration Scheme.
[10] See Singh v Minister for Immigration & Border Protection & Anor [2017] FCAFC 105
As such, pursuant to regulation 5.19(4), it was necessary for a nominated employer, wishing to employ a non-citizen applicant to secure ministerial approval of a nominated position as a pre-condition of the employee concerned being granted a visa.
In Singh, as with this case, the employer concerned had failed to secure ministerial approval for the position concerned and thereafter the nominated prospective employer did not seek review of the decision concerned.
In the case, Mortimer J (with whom Jagot & Bromberg JJ agreed) said as follows:
“The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application. Even if error had been established, remitter to the Tribunal would be futile.”[11]
[11] Ibid at [82]
These comments are apposite to the current matter. In my view, it cannot be said that the decision of the AAT, so far as Mr Varsi was concerned, was legally unreasonable. Having dismissed Hot Stuff Food Pty Ltd’s application, it could not do anything other than dismiss Mr Varsi’s application, which depended upon it. In Mortimer J’s terminology, the dismissal of Hot Stuff Food Pty Ltd’s application was fatal to Mr Varsi’s application.
This is clear from the reading of clause 187.232(1)(a), which requires the position to which any visa application applies, must be the one nominated in that application and cannot be one substituted later.
The situation in this case is analogous to one dealt with by Judge Smith in Hasan & Ors v Minister for Immigration & Border Protection & Anor,[12]a case which also involved a visa matter involving an employer nomination. His Honour said as follows:
“… the reason for the Tribunal’s decision was that the nomination by Wrap & Grill was not approved. That much was not contested. The consequence of that was, as the Tribunal concluded, that the applicant did not satisfy the criteria in cl.187.233. It was not possible for the applicant to do so by relying on the later application for approval because that was not in the visa application…”
[12] Hasan & Ors v Minister for Immigration & Border Protection & Anor [2016] FCCA 1049 at [22]
Accordingly, this is not a case, which is analogous to that prevailing in Minister for Immigration & Border Protection v Singh[13] in which the Full Court held that a statutorily based power to adjourn proceedings had to be exercised by the Tribunal in a legally reasonable way. By the expression legally unreasonable it is meant the power is not to be exercised in a manner which would be open to being perceived, by a court in its review function, as being capricious or without some form of intelligible justification.
[13] See Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
This characterisation refers to the exercise of power within jurisdiction. In this particular case, the Tribunal did not have jurisdiction to waive the requirement that Mr Varsi have a position and nominated employer approved under the Regional Employer Nomination Scheme. As such, it cannot be said that it has acted in a legally unreasonable way. The Tribunal’s hands were tied.
Mr Varsi has acted on his own behalf in these proceedings. At the outset of the proceedings, he sought to adjourn the case so that he could put his affairs in order and ultimately leave Australia, to utilise his phraseology, “with his head held high”. These are admirable sentiments, but in my view, did not justify an adjournment of the proceedings.
I was also concerned that Mr Varsi may consider that, if the case was adjourned, it may give him an opportunity to seek out a further sponsor. As is clear, from Singh (supra), it is not open to an applicant to revivify an application under Regional Employer Nomination Scheme by the substitution of another sponsor or for an original sponsor to seek a further nomination.
In these circumstances, I formed the view that a deferral of the review application would serve no useful purpose in terms of advancing Mr Varsi’s case and his personal preferences were an insufficient basis to justify its adjournment.
Accordingly, in my view, the decision of the AAT to not entertain the review application was not legally unreasonable, in the sense that it lacked some form of coherent logic. As a consequence, I am unable to detect any element of jurisdictional error in the decision concerned.
Ground 3 raises complaints about the failure of the AAT to provide Mr Varsi with a copy of its written determination at the time of decision and thereafter when he requested it. The provision of written reasons, following the delivery of an oral decision, is governed by the provisions of section 368D of the Act.
In particular, section 368D(4) provides that, in the event an oral decision is made, the Tribunal is required to reduce that decision only if a request is made by the applicant concerned with a period prescribed by regulation. In this case, the applicable regulation is regulation is regulation 4.27B and is fourteen days after the day on which the decision was made.
In this case, there is no controversy that Mr Varsi did not seek the reasons until 15 February 2017[14], following the oral decision of 23 January 2017. In any event, as a consequence of the provisions of section 368D(7), the validity of any oral determination of a review application is unaffected by any failure to apply the section strictly overall. In these circumstances, I can detect no jurisdiction error in respect of the failure to respond to Mr Varsi’s application for the production of written reasons, when it was initially made.
[14] See Case Book at page 87
In any event, in my view, the failure to provide the written reasons has not result in any practical injustice to the applicant. Although the applicant did not have the written reasons, when he instituted the current proceedings, he was, however, subsequently provided with them well in advance of the current proceedings, on 14 March 2017. He was also given the opportunity to amend his application, by order of the court’s registrar, on 17 March 2017. He did not avail himself of that opportunity.
Although it has not been raised as a ground of appeal, counsel for the Minister has conceded that the Tribunal record does not indicate that it strictly applied the provisions of section 359A of the Act, which, in generic terms, require the decision maker to inform an applicant, in a manner which it considers appropriate, of any information germane to its decision, particularly information which is adverse to the applicant concerned, so that he or she may comment upon it.
In this case, there is no evidence to indicate that Mr Varsi was given such an opportunity in respect of the information arising from the hearing conducted earlier that day regarding Hot Stuff Food Pty Ltd’s nomination of him.
Notwithstanding this omission, it is the submission of counsel for the Minister that any remittal back of the matter to the Tribunal, on this basis, would be futile, as “no useful result could ensue,”[15] given the absence of a nominated employer and the insuperable difficulties this causes for Mr Varsi’s application.
[15] See R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR
I agree with this submission. As the Full Court determined in Singh (supra) any remitter back of the application would be futile, in the absence of any application by Hot Stuff Food Pty Ltd, to review the decision pertaining to it not to approve its nominated position. In these circumstances, even in the event of the demonstration of some species of jurisdictional error in the original decision, this would not result in any subsequent decision maker being able to make any other determination.
These were issues considered by Pagone J in Dhillon v Minister for Immigration & Border Protection where it was established, in circumstances analogous to the current matter, that there had been a failure to apply section 359A(1) by the absence in the record concerned of the applicant being told of the failure of the earlier nomination review application.[16] He said as follows:
“A conclusion that it would be futile to remit a matter to the Tribunal should not be made lightly. The failure by the Tribunal to comply with s 359A(1) is a jurisdictional error and the appellants are entitled to expect that the Minister and the Minister’s department will comply strictly with statutory obligations. However, relief may not be granted as a matter of discretion if to grant relief would be futile…”
[16] Dhillon v Minister for Immigration & Border Protection [2018] FCA 86 at [9] – [10]
These comments apply to the current matter. In any event, the applicant was apparently present during the hearing involving Hot Stuff Food Pty Ltd and it is apparent that for reasons of pragmatism the two hearings were held concurrently with the same letter, produced pursuant to section 360, being sent to both Mr Varsi and Hot Stuff Food Pty Ltd, inviting them to attend a combined hearing.[17]
[17] See Case Book at page 73
In my view, this is a case where there has been no practical injustice accorded to the applicant by reason of the fact that there is no record of the fact that he was or was not informed of the outcome of the hearing involving Hot Stuff Food Pty Ltd. In Re Minister for Immigration & Multicultural Affairs: Ex parte Lam[18], Gleeson CJ said as follows in respect of the concept of the practical injustice:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[18] See Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 at [37]
In all these circumstances, I have reached the conclusion that the applicant has not been able to demonstrate any jurisdictional error in the decision making process relating to his visa refusal. Accordingly, the application must be dismissed. The Minister seeks costs in the sum of $5,500.00 which is less than the applicable scale. I will make an order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 25 May 2018
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