Virk v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 990
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Virk v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 990
File number(s): MLG 451 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 8 October 2024 Catchwords: MIGRATION LAW – Temporary Business Entry (Class UC) visa – decision of Administrative Appeals Tribunal – three applicants – where primary applicant did not hold an approved nomination by a business sponsor – cl 457.223(4)(a) of Migration Regulations 1994 (Cth) not satisfied – Tribunal affirmed decision of a delegate to refuse the visa – whether jurisdictional error established – whether remittal futile Legislation: Migration Act 1958 (Cth) ss 65, 140GB, 359A, 359B, 359C, 360, 363, 363A, 379B, 379C, 379G, 426A, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 7.01
Federal Circuit Court Rules 2001 (Cth) div 11
Migration Regulations 1994 (Cth) regs 2.72, 2.73, 2.75, 4.17; cll 457.22, 457.233, 457.321 of Sch 2; cll 6702, 6704 of Sch 13
Cases cited: Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123
Number of paragraphs: 66 Date of last submission/s: 16 September 2024 Date of hearing: 4 September 2024 Place: Melbourne The First Applicant: In person and on behalf of the second and third applicants Counsel for the First Respondent: Mr R. O’Shannessy Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 451 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANIKA VIRK
First Applicant
VARINDER SINGH
Second Applicant
SEHASVIR SINGH VIRK
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
8 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 20 February 2019 as amended on 4 September 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
On 20 February 2019, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of the decision of the second respondent (the Tribunal) dated 29 January 2019 (application). By that decision the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas (visa). The Minister opposes the application. For the reasons that follow, the application is dismissed.
BACKGROUND
There are three applicants to this proceeding. All are citizens of India (Court Book (CB) 64-66). The first applicant (the applicant) is the primary applicant for the visa. The second applicant is her husband (CB 47), and the third applicant is her son (CB 66). The applicant and second applicant first arrived in Australia on 24 April 2008 on a Higher Education Sector Student Visa (Subclass 573) (CB 148, 154). The third applicant first arrived in Australia on 10 February 2009 (CB 151).
Visa Application
On 4 May 2016, the applicant applied for the visa as the primary applicant, listing “Traditional Byte Pty Ltd”[1] (sponsor) as her sponsoring employer (CB 10). The second and third applicants were included as secondary applicants (CB 1-14). A migration agent was nominated as their authorised representative in that application (CB 6).
[1] The Sponsor is variously referred to in the documents relating to this matter as “Traditional Byte Pty Ltd” (CB 10, 92), “Traditional Bytes Pty Ltd” (CB 12) and “Traditional Bite Pty Ltd” (CB 104).
On 1 June 2016 the then-named Department of Immigration and Border Protection wrote to the applicants requesting further information in respect of the visa application (CB 20-42). On 25 and 29 June 2016, the applicants’ migration agent emailed the requested information to the Department (CB 43-95).
On 12 August 2016, the Department sent a letter to the applicants via their migration agent notifying that the sponsor did ‘not have an approved nomination for [the applicant] at this time’ and as such, her visa application was unlikely to be successful (CB 92-94). That letter invited the applicant to provide comment on her intentions regarding her visa application, including by providing evidence that she was the subject of an approved nomination, or any other information which she thought relevant in response to the adverse information in the letter. The letter advised the applicant she had 28 days in which to provide her response in writing. It also advised that the Department may make a decision on her application without requesting additional information. Accordingly, she was advised to provide the Department with all information she felt was relevant.
In apparent response to that letter, the sponsor lodged a further nomination application on 9 September 2016. That nomination application was also refused by the Department (CB 104, 166).
On 20 December 2016, a delegate of the Minister (delegate) notified the applicant via a letter to her migration agent that her application for the visa had been refused (delegate’s decision) (CB 96-106). The delegate’s decision was made on the basis that the sponsor did not have an approved nomination for the applicant at that time, and she therefore did not satisfy cl 457.223(4) of the Migration Regulations 1994 (Cth) (Regulations) (CB 104). As noted above, the sponsor’s further nomination application was refused by the Department on 20 December 2016. The delegate was also not satisfied that the applicant met the secondary criteria for the visa pursuant to cl 457.321 of the Regulations (CB 105). Finally, the delegate determined the secondary applicants did not have claims against the primary criteria for the grant of the visa. Further, they were also unable to satisfy the secondary criteria for the visa as the first applicant did not satisfy the prescribed criteria (CB 105-106).
The letter attaching the delegate’s decision included the following information:
Review rights
There is no right of merits review for this decision.
However, you may become entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision if within 21 calendar days after the day on which you are taken to have received this letter, you are sponsored by an approved sponsor, or an application for merits review of a decision not to approve the sponsor is pending.
On 9 January 2017, the sponsor applied to the Tribunal for merits review of the decision to refuse the applicant’s nomination (CB 166). On 9 January 2017, the applicants also lodged an application for merits review of the delegate’s decision with the Tribunal (CB 107-109). On 2 January 2019, the Tribunal affirmed the decision to refuse the sponsor’s nomination of the applicant (CB 166).
On 7 January 2019, the Tribunal wrote to the applicants via their migration agent (CB 166-168). The letter noted the refusal of the sponsor’s application for approval of the applicant’s nomination for a position of a Café or Restaurant Manager including the affirmation of the decision by the Tribunal. It noted that if the information was accepted and relied upon, this would be a reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse to grant the applicant the visa. It was explained that one of the criteria contained within Subclass 457 requires the applicant to demonstrate that at the time the Tribunal comes to decide the review application, they are the subject of an approved nomination by a standard business sponsor in relation to an occupation specified for the purpose of the Regulations. The letter attached the relevant provisions. The letter further explained the Tribunal would be required to affirm the delegate’s decision on the basis that the applicant does not meet the criteria within cl 457.223(4)(a). It was also explained this information was relevant to the second and third applicants as they were required to satisfy the criteria pursuant to cl 457.321 to be eligible for the visa they were seeking. The relevant criterion was that of being a member of the family unit of a person who is a holder of a Subclass 457 visa. The Tribunal advised that if the applicant was not the holder of a Subclass 457 visa, the second and third applicants would not be able to satisfy cl 457.321.
The applicants were invited to give comments on or respond to this information in writing by 21 January 2019. They were further advised that if the Tribunal did not receive their comments or response within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain their views on the information. They were also warned they would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal’s decision records that no response was received from the applicants in relation to this invitation and no extension of time was sought (CB 174, [7]-[8]).
On 30 January 2019, the Tribunal wrote to the applicants via their migration agent advising it had decided to affirm the delegate’s decision to refuse to grant the visas (CB 170).
THE TRIBUNAL’S DECISION
The Tribunal’s decision dated 29 January 2019 set out the background of the application for review and the relevant visa criteria. It referred to its letter of the 7 January 2019 and the applicants’ failure to provide comments on or a response to the information contained in that letter (CB 173-174, [6]-[8]).
The Tribunal decision records it considered whether it ought to adjourn the review hearing under subsection 363(1)(b) of the Act to allow the applicants additional time to respond to the information sought by the Tribunal by letter dated 30 April 2018 (CB 174, [9]). The Court Book does not contain evidence of a letter of that date. It appears to be a typographical error. The Tribunal considered whether, in the circumstances of this case, the applicants’ comments on or response to the information contained in the Tribunal’s s 359A letter were likely to be forthcoming, whether the applicants had a fair opportunity to provide comments on or respond to the information and the significance of the information to the applicants (CB 174, [11]).
The Tribunal referred to its letter of 7 January 2019. The Tribunal noted that the applicants had the benefit of representation from a registered migration agent to assist with their review application. In spite of this, neither the applicants nor their representative provided a response (CB 174, [12]).
The Tribunal noted that the applicants had been on notice of the reasons for the delegate’s decision for more than two years (CB 175-175, [13]). The Tribunal also noted there was nothing preventing the applicants from re-applying for a temporary visa once the applicant found a new employer willing to sponsor and nominate the applicant for a position within their business (CB 175, [14]). Against this background, the Tribunal considered the applicants had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to respond to information contained in the Tribunal’s letter. Accordingly, it decided not to exercise its discretion pursuant to s 363(1)(b) of the Act to adjourn the review any further (CB 175, [15]).
Noting the requirements pursuant to cl 457.223(4)(a) of the Regulations, the Tribunal found that the applicant was not at the time of its decision the subject of an approved business nomination that had not ceased or that there was an approved nomination of an occupation in relation to her that had not ceased. Consequently, the applicant was found to not satisfy cl 457.223(4)(a) of the Regulations (CB 175, [17]-[18]).
As the applicant did not satisfy the primary criteria for the grant of the visa, the second and third applicants did not satisfy the secondary criteria for the visa, in particular cl 457.321 of the Regulations which requires that an applicant be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. On that basis, the Tribunal found the requirements for the standard business sponsor stream were not met. Noting that no claims had been made in respect of the other streams in cl 457.223 and there was no evidence that the applicants would be able to satisfy the specific criteria for those alternative streams, the Tribunal, accordingly, affirmed the decision not to grant the applicants the visas.
PROCEEDINGS BEFORE THE COURT
The application for judicial review was filed in this Court on 20 February 2019, within 35 days of the date of the decision as prescribed by s 477 of the Act. The copy of the application filed with the Court appears to cut off the grounds of the application. The applicant also filed an affidavit in support of the application on 20 February 2019. That, too, sets out the grounds of review. They are as follows:
1. The applicant seeks judicial review of the decision of Administrative Review Tribunal in this matter on the grounds that the tribunal erred jurisdictionally in determining the application adversely and failed to find that I satisfied the relevant provisions of the Migration Act 1958 and Migration Regulations 1994. application My application has been dealt with and decided unfairly due to following reasons. I was not given chance to present my case and evidence in support of my case.
2. Decision of Department of Home affairs was related to the criteria of provisions of class UC 457, clause 457.223(4)(a)). The department was not satisfied that clause 457.223(4)(a) was met. The tribunal made an error and did not consider my case under this sub clause. Also, the tribunal did not consider the requirements that the Nomination has been to provide by the employer. Under privacy, I cannot get documents of the employer to provide to AAT. The reason for not having valid nomination under 457.223(4)(a) was not properly considered.
3. In looking at checklist given by the department (Attached) for requirements of sub class 457, there has been no attempt made by tribunal to give me a chance to prove that I am eligible for the grant of 457 visa. I have completed all my qualifications related to Hospitality that are required for the occupation of Cafe or Restaurant Manager ANZCO: 141111 and subsequently for sub class 457 visa grant. Also, I am a genuine applicant applying for Genuine Position and my credentials along with my arguments are not considered by the tribunal member. Moat of the duties submitted with the application are related to the duties of Restaurant Manager. It can be clarified by looking at Regulation 2.72(10(f). The member made an error in relating prescribed duties under Regulation 2.72(10(f) with the duties of Restaurant Manager submitted along with application.
4. It is considered that the tribunal's failure to at least consider the situation in the above light amounts to jurisdictional error as a result, destroying the validity of Tribunal's decision.
5. In Minister for Immigration v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Haynes JJ observed (Gleeson CJ agreeing) that
"It is necessary, however, to understand what is meant by 'Jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal ... falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.'
It is submitted that the Tribunal has failed to consider a potential explanation and provisions of UC 457 refusal. The tribunal decision is made contrary to the to natural justice by not giving me due chance to present my case and evidence in support of application.
When the application was filed, the third applicant was still a child. Accordingly, on 16 March 2021, orders were made pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) appointing the first applicant as the third applicant’s litigation guardian.
On 3 April 2024, orders were made by a Registrar of this Court in anticipation of the matter being listed for final hearing. As at that date, the third applicant was an adult. Orders were made vacating the previous order appointing a litigation guardian for the third applicant. An order was also made giving the applicants an opportunity to file any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence upon which they sought to rely by 17 April 2024. The applicants did not file any material in accordance with this order.
On 24 April 2024, the Minister filed written submissions. The Minister also filed an affidavit of Liam Dennis (Dennis affidavit) setting out a screenshot of the Department’s computer database “Integrated Client Services Environment” (ICSE) relating to the nomination decision concerning the applicant and a copy of the Company Summary Extract from a search of the Australian Securities and Investment Commission (ASIC) website conducted in respect of the sponsor.
Following the hearing on 4 September 2024, I made orders requiring the Minister to file and serve further submissions addressing the issue of futility raised in their submissions to the Court. The Minister filed further submissions in accordance with those orders on 6 September 2024. I also made an order affording the applicants an opportunity to file submissions in response to the Minister’s further submissions and in reply to the submissions made by the Minister during the course of the hearing in this Court. The applicant filed submissions in accordance with those orders on 16 September 2024.
Hearing on 4 September 2024
The applicant appeared on behalf of all of the applicants on 4 September 2024. She was unrepresented. The Minister’s solicitors had filed an affidavit prior to the hearing setting out the documents it had served on the applicant. I am satisfied the applicant had been provided a copy of the Court Book filed by the Minister in these proceedings on 18 March 2021, the Dennis affidavit and the Minister’s outline of submissions. The Court Book has been sent to the applicant via email and a hard copy was also sent on 3 June 2022. The Minister’s submissions and the Dennis affidavit were sent to the applicant by email on 24 April 2024.
The documents before the Court in respect of this application are the application and the applicant’s affidavit filed 20 February 2019, a Court Book filed on 18 March 2021 (marked Exhibit 1R), the Dennis affidavit (marked Exhibit 2R), the Minister’s written outlines of submissions dated 24 April 2024 and 6 September 2024, and the applicants' written submissions dated 16 September 2024. The applicant’s affidavit sets out the applicants’ grounds in full.
The Dennis affidavit establishes the following:
(a)the sponsor made a nomination application in respect of the applicant on 9 September 2016;
(b)the Department refused the nomination application on 20 December 2016;
(c)a review of the refusal decision was commenced before the Tribunal on 9 January 2017;
(d)on 2 January 2019, the Tribunal affirmed the delegate’s decision;
(e)there is no record of any application being made to review the Tribunal’s nomination refusal decision;
(f)according to ASIC records, the sponsor was deregistered on 30 August 2021.
Noting the applicant was unrepresented, I explained the Court’s role was limited to considering whether the Tribunal had committed a serious legal (or jurisdictional) error when making its decision. I also explained I was not able to look at the facts, come up with a different decision and give the applicants a visa.
During the course of hearing the application, I made orders amending the name of the first respondent in order that it conform with the relevant Minister’s current title. In addition, I made orders pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to amend the application so as to seek a writ of mandamus.
CONSIDERATION
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicants’ claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicants if they establish the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicant’s submissions
Although the applicant was taken to the grounds of the application during the course of the hearing, it proved difficult for her to address them individually. She was afforded the opportunity to explain in an open fashion what she says the Tribunal did wrong.
The applicant complains that she was not given a chance by the Tribunal to say why her application should not be refused. She referred to the decision concerning the sponsor. She says the nomination application was refused because it had been determined that only one person was required to run a restaurant. She explained it was the migration agent’s fault because she did not get the nomination to the next level. She also told the Court the migration agent was injured in an accident which I understood may have explained why the nomination decision was not taken further. Ultimately, her complaint is the nomination decision was incorrect.
The applicant referred to her current circumstances. Her husband, the second applicant, has been “stuck” in India for four years. Their son, the third applicant, has spent all his life in Australia. He will need to go offshore to apply for a visa on his own behalf.
In her written submissions filed on 16 September 2024, the applicant stated the following:
1. Misinterpretation of Regulatory Criteria
Although I do not meet the requirements presently, it is important to note that those requirements were met at the time the decision was made. It seems rather impudent to argue whether they are met now, as the focus should be on the circumstances that existed at the time of the previous decision. Furthermore, it should be treated as if the laws for the 457 visa still exist, as it is not my fault for the changes and the time it has taken to reach a conclusive ending. Emphasising the relevant timeframe reinforces my argument that I complied with the requirements when my application was initially assessed. Additionally, I should not bear the responsibility for the changes in legislation or the delays in the decision-making process. These factors are beyond my control and should not negatively impact my case.
2. Implications of Regulatory Changes
The regulatory changes effective 18 March 2018 may have implications for how pending applications should be evaluated. These changes were intended to ensure fairness and clarity in the nomination process and should be interpreted to allow for flexibility in cases where applicants had pending applications prior to the repeal of relevant provisions.
3. Rejection of Nomination Based on Managerial Need
The rejection of my nomination was based on the assertion that a managerial position was unnecessary due to the presence of an existing chef who could fulfil these duties. However, this comparison overlooks the operational realities of different types of restaurants. For instance, in a fast-food establishment like McDonald's, multiple managers may oversee less complex operations, while an Indian restaurant may require a dedicated manager to handle a higher volume of customers—up to 40 at a time—alongside the intricacies of service and kitchen management. Furthermore, it feels unjust to assume that a managerial figure is not needed, especially in a restaurant that requires effective auditing and oversight to ensure compliance with health and safety standards.
4. Impact on Family Dynamics
I wish to emphasise the personal impact of this situation on my family, particularly regarding my son. He recently turned 18 and is now expected to become independent, despite having been raised here since he was five years old. His childhood has been just as Australian as any other child in this country; it is not his fault that he was born in another country. As a result of the visa situation, he has been removed from being dependent on my visa and is now required to seek his own visa. This transition is not only financially burdensome for him but also places immense stress on him to become independent all of a sudden. Moreover, he cannot change his visa status while remaining in Australia, which adds further complications and uncertainty to his situation.
5. Potential for New Nomination
Although the Tribunal concluded that remitting the matter would be futile, it is crucial to recognise that I could potentially secure a new nomination from a different employer. The opportunity for reassessment by the Tribunal should not be dismissed outright, as new evidence or nominations could arise. Furthermore, a favourable decision would alleviate stress and allow me to invest more time and energy into creating new opportunities, ultimately enhancing my chances of success in securing a suitable nomination.
6. Procedural Fairness Concerns
The Tribunal’s decision raises significant concerns regarding procedural fairness. It is vital to ensure that all relevant evidence is considered and that the reasoning behind the decision is adequately articulated. Any lack of clarity or thoroughness in the Tribunal's reasoning may constitute grounds for appeal. I am appealing because I believe the decision was unfairly rendered and not supported by sufficient or compelling evidence. The main reason for the decision felt more like a guess rather than a reasonable conclusion based on the available evidence.
7. Cost Implications
The imposition of costs against me is unjust, particularly in light of the uncertainties surrounding the nomination process. I was unable to afford a knowledgeable and experienced legal advisor, which led me down an inefficient path in navigating the appeal process. This limitation should not be held against me or be a deciding factor in the Tribunal’s verdict. Additionally, as I currently reside alone in Australia, it is not financially viable for me to pay such amounts, especially without prior consideration of my circumstances. Imposing costs in this context may deter legitimate appeals and undermine my right to seek redress, further exacerbating my financial hardship.
8. Desired Solution
In light of the points raised, I respectfully request that the Tribunal’s decision be reviewed and overturned. While I understand that the Temporary Business Entry (Subclass 457) visa is no longer available, I would appreciate consideration for an equivalent visa or alternative pathways that would allow me to remain in Australia. Such options would provide me with the opportunity to pursue success in my career and contribute positively to the community. I seek assurance that the reassessment will take into account my unique circumstances and challenges, ensuring a more equitable evaluation moving forward.
In light of these submissions, I deal with each of the grounds of review in turn and any residual allegations of error.
Grounds 1 and 5
The first ground is a generalised complaint that the Tribunal erred in determining the application adversely and dealt with the applicant unfairly as she was not given a chance to present her case and evidence in support of her application for review. Ground 5 repeats this complaint and also alleges the Tribunal failed to consider a potential explanation and “provisions of UC 457 refusal”. The applicant’s written submissions at point 6 are directed at this issue.
Minister’s submissions
The Minister submits that where the Tribunal found there was no approved nomination for the applicant and she did not meet the requirements of cl 457.223(4)(a) of the Regulations, the Tribunal had no other choice but to affirm the decision under review; it was not open to the Tribunal to consider a “potential explanation”. As to the complaint the applicants were denied procedural fairness, the Minister submits the applicants were sent a valid s 359A invitation via their properly appointed authorised recipient. Pursuant to s 360(3) of the Act, the applicant was disentitled from her right to attend a hearing under s 359C(1)(b) when the response was not received before the time given had passed. The Minister submits that once the time passed, the Tribunal no longer had the power or discretion to permit the applicants to appear at a hearing: s 363A citing Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [28] per Jacobson, Gilmour and Foster JJ.
The Minister also highlighted the Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time to provide further evidence but found she had been afforded a fair opportunity to provide relevant information and decided not to exercise its discretion to do so (CB 174-175, [9]-[15]). As the statutory scheme expressly envisages the exercise of the power to make a decision in these circumstances, it was submitted no error is apparent in the Tribunal’s decision to proceed to a decision: c.f. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [13]-[14] per Kiefel CJ discussing the exercise of discretion under s 426A.
Discussion
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. When undertaking its review function, which “involves a fresh consideration of the application which led to the decision under review”, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the Regulations for the visa have been satisfied: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [10]. If the relevant criteria are not satisfied, the Tribunal has no option but to affirm the decision refusing the visa.
Clause 457.22 of Sch 2 to the Regulations sets out the primary criteria to be satisfied at the time of decision in relation to the visa. It included cl 457.223 which relevantly provided:
457.223
(1) The applicant meets the requirements of subclause (2) or (4).
…
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75.
I do not understand the applicant to be suggesting that she would have been able to present evidence to the Tribunal that she was the subject of an approved nomination if she had been provided an opportunity to appear before it. The evidence shows she was not the subject of an approved nomination at the time of the decision. She did not avail herself of the opportunity to provide evidence to the contrary in response to the Tribunal’s s 359A invitation.
In respect of the Tribunal’s s 359A invitation, the Act relevantly provided as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A;
…
359B Requirements for written invitation etc.
(1) If a person is:
…
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
…
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
…
359C Failure to give information, comments or response in response to written invitation
….
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
…
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
…
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
In this case, the Tribunal sent the applicants an invitation pursuant to s 359A which complied with the relevant requirements (CB 166-168). It set out clear particulars of the information it considered would be a reason, or part of the reason, for affirming the decision under review, namely the information that the Tribunal had affirmed the decision not to approve the nomination made by the sponsor and the implications of that decision on the ability of the applicant to satisfy the cl 457.223(4) criteria. The invitation was sent to the applicants’ migration agent via the email address provided with the application to the Tribunal in compliance with ss 379B(4)(b) and 379G(1) of the Act (CB 108-109, 164-165). The invitation specified the way in which the information, comments or response were to be given, namely in writing. The time provided for doing so, namely by 21 January 2019, was 14 days after the date the applicant was taken to have received the invitation: s 379C(5) of the Act. That was the prescribed period: reg 4.17(4) of the Regulations. There is no evidence the applicant sought further time to respond. No response was received. As a consequence, the applicant lost her right to appear before the Tribunal. Moreover, the Tribunal was precluded from holding such a hearing: Hasran at [25]-[31].
Finally, it is clear the Tribunal gave consideration to whether it should delay making its decision to give the applicant further time to provide comment or information in response to its s 359A invitation. It decided to proceed to a decision by reference to the circumstances and the relevant case law. I can discern no error in its approach to the question.
These grounds are not made out.
Ground 2
This ground complains the Tribunal did not consider the applicant’s case pursuant to cl 457.223(4)(a) or did not properly consider the reasons the applicant did not have a nomination. The applicant’s submissions did not directly traverse this argument.
Minister’s submissions
The Minister submits to the extent the ground alleges a failure to consider the applicant’s case by reference to cl 457.223(4), it fails on the face of the decision record. The reasons for decision confirm the Tribunal considered the information before it but found the applicant did not satisfy cl 457.223(4) because she was not the subject of an approved nomination (CB 175, [18]). The Minister further submitted the proceeding was not one where it was relevant to consider the reasons why the applicant did not have an approved nomination. The decision of the Tribunal to affirm the decision to refuse the sponsor’s nomination application was, in a legal sense, separate to the review the Tribunal was required to undertake in respect of the applicant’s matter.
Discussion
It is clear that the Tribunal considered cl 457.223(4)(a) when deciding to affirm the delegate’s decision. It found the applicant did not meet that criterion at the time of the decision. The Tribunal, accordingly, was required to affirm the delegate’s decision refusing the visa. The applicant either had or did not have an approved nomination. The reasons for her not having an approved nomination were not relevant to the Tribunal’s decision.
This ground is not made out.
Grounds 3 and 4
These grounds in effect repeat the same complaint that the applicant was not given an opportunity to prove she was eligible for the visa with particular reference to the Tribunal failing to consider her qualifications for the position and that she was a genuine applicant for a genuine position. The applicant’s written submissions at points 1-3 and 6 address this argument to some extent.
Minister’s submissions
The Minister submits the Tribunal in this case was conducting a relatively confined inquiry regarding whether the applicant met the requirements of cl 457.223(4)(a). It invited the applicant to comment on information that suggested she did not meet the requirements of the visa. The applicant did not provide a response. The Minister submitted the Tribunal was not required to consider the balance of the 457 criteria once it formed the view the applicant could not satisfy cl 457.223(4)(a). Consideration of those other matters by the Tribunal could not have altered its decision.
Discussion
The Minister’s submissions must be accepted. This was not a case where the Tribunal was required to consider anything other than cl 457.223(4). The absence of satisfaction of this essential criterion required the Tribunal to affirm the decision to refuse the applicant a visa. For the reasons already set out above, the Tribunal was precluded from holding a hearing in relation to the matter when the applicant failed to respond to the s 359A invitation.
These grounds are not made out.
The decision to refuse the nomination
The applicant has complained the decisions to refuse the sponsor’s nomination application were “unjust”. The Minister submits the Tribunal and this Court have no jurisdiction to do anything in respect of those decisions quite apart from the fact there is no evidence before this Court of the contents of the reasons for decision in respect of the sponsor’s nomination of the applicant.
In my view the Tribunal did not fall into jurisdictional error by not considering the merits of nomination decisions for the following reasons. First, the applicant did not put any information before the Tribunal regarding that decision or its merits. No duty to inquire arose in the circumstances: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [18]-[25], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Secondly, the applicant has no standing to agitate the merits of the nomination refusal decisions. Only the sponsor has standing to do so: Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123 at [73]-[101], per O’Sullivan J, Raper J agreeing at [205]. Thirdly, there is nothing before the Court to suggest the nomination decisions were affected by jurisdictional error. The applicant disagrees with the outcome of those decisions, but I do not discern a complaint that would meet the description of the sort of error that would undermine their lawfulness or legality. Consequently, there is no occasion to entertain a collateral challenge to the nomination decisions of the kind described in Mora v Minister for Immigration and Border Protection [2018] FCA 1819.
Summary – jurisdictional error
In my view, the Tribunal did not fall into jurisdictional error when affirming the decision to refuse the applicants’ visas.
Futility
The Minister submitted that even if the Court was satisfied the Tribunal’s decision was tainted by jurisdictional error, relief ought be refused on the basis it would be futile to remit the matter to the Tribunal: Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458 at [32]-[33]; Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096 at [36]-[43]. The Minister’s argument as contained in their outline of submissions is as follows:
27. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 which removed Subclass 457 from the class of skilled visas. As such, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. It was a requirement for the grant of a Subclass 457 visa that the nomination of the occupation in relation to the applicant had been approved under s 140GB of the Act, and that nomination had not ceased as provided for in reg 2.75: cl 457.223(4)(a).
28. The applicant was never the subject of an approved nomination and in the absence of any later nomination approval and noting that no nomination applications for a Subclass 457 visa may now be lodged, the applicant would never be able to be the subject of an approved nomination. Therefore, if the matter was remitted to the Tribunal, it would be bound to affirm the decision under review as the applicant would be unable to meet cl 457.223(4)(a)(iii).
29. In circumstances where the sponsoring company has been deregistered, the Tribunal would again be bound to reach the same conclusion on remittal…
The Minister expanded on these submissions in its submissions filed on 6 September 2024 as follows:
9. If the matter were remitted to the Tribunal, the Tribunal would again have to consider whether the applicant satisfies cl 457.223(4)(a) of the Regulations (in the form as at 17 March 2018). However, it is no longer possible for the applicant to satisfy that criterion, because she is not the subject of a nomination approved under s.140GB of the Act, and could not be the subject of a nomination approved under s.140GB of the Act at any time in the future.
10. Traditional Bite Pty Ltd did not seek judicial review of the Tribunal’s decision to affirm the delegate’s decision to refuse the nomination application made in relation to the applicant: Affidavit of Liam Dennis filed on 24 April 2024, paragraph [7]. Traditional Bite Pty Ltd cannot now do so, because it has been deregistered since 30 August 2021: Affidavit of Liam Dennis filed on 24 April 2024, paragraph [9].
11. It is no longer possible for any other entity to have a nomination approved in respect of the applicant under s.140GB of the Act. The relevant criteria for the approval of a nomination for a Subclass 457 visa are set out in reg 2.72 of the Regulations, which applies (relevantly) only in relation to a person who nominates a proposed occupation in relation to a person who already holds a Subclass 457 visa: Salh at [39].
12. Further, s.140GB(3) provides that the Regulations may establish a process for the Minister to approve a person’s nomination. The relevant process is contained in reg 2.73 of the Regulations, which applies (relevantly) only in relation to a person who nominates a proposed occupation in relation to a person who already holds a Subclass 457 visa: Salh at [41].
13. The applicant was never the subject of an approved nomination and in the absence of any later nomination approval and noting that no nomination applications for a Subclass 457 visa may now be lodged, the applicant would never be able to be the subject of an approved nomination. Therefore, if the matter was remitted to the Tribunal, it would be bound to affirm the decision under review as the applicant would be unable to satisfy cl 457.223(4)(a).
The applicant takes issue with this argument and says she could potentially secure a new nomination from a different employer: see points 1, 2 and 5 of her written submissions at [34] above. She says it is not her fault there have been legislative changes since she brought her application and she should not be impacted by them.
It is not strictly necessary to consider this issue as I have concluded the Tribunal did not fall into jurisdictional error when deciding to affirm the delegate’s decision. The Minister’s submissions must, however, be accepted.
The 2018 amendments to the Regulations removed Subclass 457 from the class of skilled visas with effect from 18 March 2018. The 2018 amendments also introduced a new Part 67 of Sch 13 to the Regulations. Clause 6702(2)(c) of Sch 13 to the Regulations provides that Part 457 of Sch 2 continues to apply in relation to an application for a visa made before the commencement day, despite its repeal.
The Regulations as amended by the 2018 amendments, however, apply to applications for approval as a standard business sponsor and nominations made on or from 18 March 2018. So much is explicitly stated in Part 67 of Sch 13 to the Regulations in particular respects (see, for example subcll 6704(1), (3), (8) and (13)).
In the applicant’s case, she is not currently the subject of a nomination approved pursuant to s 140GB of the Act. Under the Regulations as they currently apply, such a nomination may, relevantly, be made in respect of the holder of a Subclass 457 visa: see regs 2.72(1)(b)(i) and 2.73(1)(a). The Regulations no longer provide that a nomination may be made in respect of a person making an application for a Subclass 457 visa.
It follows that the granting of relief sought by the applicant would be futile. If the Tribunal were to consider the merits of the applicant’s visa application, it would be bound to find that the applicant does meet the essential criterion pursuant to cl 457.223(4) of the Regulations which must be satisfied at the time of the decision, as she is not the subject of a nomination of an occupation which has been approved under s 140GB of the Act. As the applicant is not the holder of a Subclass 457 visa, she cannot be nominated for an occupation pursuant to reg 2.72(1) and 2.73(1) of the Regulations. There are no circumstances in which it would be possible for the applicant to satisfy all of the criteria for the grant of the visa: Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629 at [45] per Anderson J.
CONCLUSION
For the above reasons, I dismiss the application as amended.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 8 October 2024
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