Waduge v Minister for Immigration
[2020] FCCA 1601
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WADUGE v MINISTER FOR IMMIGRATION | [2020] FCCA 1601 |
| Catchwords: MIGRATION – Temporary Business Entry (Class UC) Subclass 457 visa – review of delegate’s decision – privative clause decision – no proof of approved nomination – failure to satisfy primary criterion – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.7.01, 13.03C(1)(c) Migration Act 1958 (Cth) ss.57, 63(3)(c), 338(2)(d)(i), 474(2), 476(2)(a), 494C(5) Migration Regulations1994 (Cth) cl.457.223(4)(a) of Schedule 2 |
| Cases cited: Gupta v Minister for Immigration [2016] FCA 1004 |
| Applicant: | PRASAD WIJAYABANDU UDIRIAPPU WADUGE |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | MLG 2556 of 2016 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 15 February 2019 |
| Date of Last Submission: | 15 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) the name of the Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application for judicial review filed on 28 June 2017, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2556 of 2016
| PRASAD WIJAYABANDU UDIRIAPPU WADUGE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 25 November 2016 (Application), the Applicant seeks judicial review of a decision of a delegate (Delegate) of the Respondent (Minister) dated 28 October 2016 (Delegate’s Decision) to refuse to grant the Applicant a Temporary Work (Skilled) (Class UC) (Subclass 457) visa (Visa).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (Act). While unusual, in the circumstances of this case and for reasons explained below this Court has jurisdiction to review the Delegate’s Decision.
Background
The Court had before it a Court Book numbering 41 pages. The Court has reviewed the material contained in the Court Book in detail, in addition to the Court transcript and filed materials.
The Court notes that the Minister’s written submissions filed on 19 July 2017 (Minister’s Submissions), at [2]-[6], accurately summarise the factual history of this matter. The Court adopts those submissions, with minor amendments, as its own. They provide, relevantly, as follows.
The Applicant is a national of Sri Lanka. He applied for the Visa on 26 June 2016[1]. The Applicant was assisted by a migration agent. The Applicant indicated that his sponsoring employer was Next Frame Productions (Aus) Pty Ltd (Sponsor).
[1] CB 1-14.
On 17 August 2016, the Delegate wrote to the Applicant (via his agent) requesting that he provide more information[2]. It appears that the Applicant forwarded some of the requested documents to the Department[3].
[2] CB 17-26.
[3] CB 27-30.
On 26 September 2016, the Minister’s department (Department) wrote to the Applicant (via his agent) inviting him to comment on information relating to his application for the Visa (Invitation). The Invitation relevantly provided as follows[4]:
[4] CB 32-34.
Adverse information received
The Department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. Your prospective employer, NEXT FRAME PRODUCTIONS (AUS) PTY LTD, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.
If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you, please be advised that you will need to contact them directly.
In the absence of an approved nomination from your prospective sponsor, you can either:
• provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); or
•withdraw your application in writing; or
•provide comment or any other information which you think is relevant in response to this adverse information
Timeframe for response
You must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.
[…]
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
If you do not reply within the timeframe specified above your application may be decided without the Department taking any action to obtain the requested information. If you are unable to provide this information within this time you should contact us using the contact details provided below.
No response to the Invitation was received by the Department.
On 28 October 2016, the Delegate refused the Visa[5].
[5] CB 39-41.
Delegate’s Decision
The Delegate set out the criterion of cl.457.223(4) of the Migration Regulations 1994 (Cth) (Regulations). The Delegate noted that the Sponsor did not have an approved nomination and the Applicant was invited to comment on this and had not done so.
The Delegate found that:
As the applicant does not satisfy paragraph 457.223(4)(a) of the Regulations, I am not satisfied that the applicant meets the prescribed criteria for grant of a Temporary Business Entry (Class UC visa) - Subclass 457 Temporary Work (Skilled) visa.
As one primary criterion was not satisfied, I have not assessed the application against all other required criteria.
I have also assessed the ability of Prasad Wijayabandu Udiriappu Waduge to meet the secondary criteria for the subclass 457 visa.
One of the secondary criteria for the subclass 457 visa provides:
321 The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.
Since no secondary applicants were included in Prasad Wijayabandu Udiriappu Waduge’s application and Prasad Wijayabandu Udiriappu Waduge is not the member of the family unit of a person who has already been granted a subclass 457 visa after having satisfied primary criteria, I am not satisfied that Prasad Wijayabandu Udiriappu Waduge is the member of a family unit of a person who already holds a subclass 457 visa having satisfied the primary criteria.
Consequently, I am not satisfied that Prasad Wijayabandu Udiriappu Waduge meets clause 457.321 for grant of a Temporary Business Entry (Class UC visa).
As I am not satisfied the primary applicant satisfies the criteria for the grant of the visa, I refuse to grant a Subclass 457 - Temporary Work (Skilled) visa to Prasad Wijayabandu Udiriappu Waduge.[6]
[6] CB 40-41.
Proceedings before this Court
The Applicant commenced proceedings for judicial review under s.476 of the Act on 25 November 2016. As noted, it is most often the case that this Court does not have jurisdiction to review the Delegate’s Decision. However, there is no automatic right of merits review in decisions made concerning subclass 457 visas. Rather, reg.4.02(1A) of the Regulations prescribes that in order to be entitled to merits review, an Applicant for a subclass 457 visa (like the Applicant) must meet s.338(2)(d). Section 338(2)(d) provides as follows:
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(d)if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
In the circumstances of this case (and the Court being itself satisfied on the materials before it[7]), the Applicant did not meet any of the requirements in s.338(2)(d). Therefore, the Delegate’s Decision was not a pt.5 reviewable decision and the Applicant’s only avenue was to seek judicial review in this Court. Accordingly, the Applicant did so and the Court has jurisdiction to hear the Application.
[7] Affidavit of Joel Eitan Palte affirmed 14 July 2017.
The Applicant was provided an opportunity to file an amended application by Orders of a Registrar of this Court, dated 24 May 2017. The Applicant filed an amended application with an additional ground for review on 28 June 2017 (Amended Application).
On 4 December 2018, the matter came before the Court for hearing. On that date, the Applicant did not attend Court, and the matter was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Dismissal Order), and the Applicant was ordered to pay the Respondent’s costs in the sum of $7,064.
On 21 December 2018, the Applicant filed an Application in a Case seeking the Dismissal Order be set aside and the matter be listed for hearing (Application in a Case). The Application in a Case was supported by an affidavit of the Applicant, affirmed and filed in the Court on 21 December 2018.
The Application in a Case was heard on 15 February 2019. On that occasion, the Court decided to reinstate the Application and hear it on that day, with consent from the Minister[8].
[8] Transcript T7:L40.
The Applicant appeared before this Court without legal representation, and with the assistance of a Sinhalese interpreter.
The Applicant’s Amended Application contained the following grounds of review:
1.Respondent failed to give the applicant adequate time to resubmit his application for Standard Business Sponsorship for a Temporary Business Entry (Class UC) Visa of the Next Frame productions (Aus) Pty Ltd before coming to a conclusion that that the applicant does not satisfy paragraph 457.223(4)(a) of the regulations.
2.The Respondent failed to consider that the Nomination Application for Standard Business Sponsorship for a Temporary Business Entry (Class UC) Visa of the Next Frame productions (Aus) Pty Ltd was failed due to some technical issues and can be resubmitted within short period with adequate pay roll activities once it was refused for not submitting supporting evidence to adequately demonstrate the applicants pay roll activities.
3.The Respondent failed to request further information from the Applicant, or to consider doing so, in circumstances under which the asserted basis upon which it refused his visa was so inadequate and incoherent that the Applicant had met the criteria for a visa, as required by paragraph 457.223(4) (a) of the Regulations of the Migration Act.
4.The Respondent's refusal to grant the Applicant a visa was so unreasonable that no reasonable person could have reached this decision without assessing the application against all other required criteria.
5.Next Frame productions (Aus) Pty Ltd Resubmitted Nomination Application for Standard Business Sponsorship for a Temporary Business Entry (Class UC) Visa on 31 October 2016 and on 23 November 2016 it received a Temporary Business Entry Standard Business Sponsorship
6.The Delegate of the Minister for Immigration and Border Protection erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the circumstances of this matter.
(Without alteration)
The materials before the Court include the Court Book, an outline of submissions from the Applicant dated 28 June 2017 (Applicant’s Submissions), an outline of submissions filed by the Minister dated 19 July 2017 (Minister’s Submissions) and an affidavit of Joel Eitan Palte affirmed 14 July 2017. As noted, the Court has also considered the transcript of the hearing where both the Applicant and the Minister’s representative provided oral submissions.
At the hearing, the Applicant made no substantive submissions in support of his Amended Application or generally. He referred to his studies in Australia and that he was a good student. These are not matters relevant to the Court’s task on judicial review.
The Court will now consider each ground of review.
Ground 1
The First Ground asserts that the Delegate erred by failing to provide adequate time to the Applicant to resubmit his application for sponsorship of the Visa, before coming to a decision.
On 26 September 2016, the Delegate provided the Applicant with the Invitation. While the Applicant does not take issue with the content of the Invitation, the Court is satisfied that the Invitation contained what was required by s.57 of the Act.
The issue the Applicant states within Ground 1 was that he did not have adequate time to arrange for a new sponsorship application to be made. In this regard, s.58 of the Act is relevant. Section 58 provides as follows:
(1)If a person is:
(b) invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c) in writing; or
[…]
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments 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, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
Specifically relevant to Ground 1 is s.58(2). This is because s.58(2) of the Act, in effect, prescribes the “adequate time” in which an applicant should be given to comment on the information and make what arrangements are necessary. The Invitation indicated that the Applicant had 28 days from the date he received the letter. Regulation 2.15(1)(ii)(C) of the Regulations prescribes that the time in which an applicant is to respond is 28 days after the applicant is notified of the Invitation.
The Invitation was sent by email to the Applicant’s agent. As per s.494C(5) of the Act and s.494D(2) of the Act, the Applicant was “taken to have received this letter” at the end of the day on 26 September 2016. Accordingly, the timeframe for any response lapsed at the end of the day on 24 October 2016. It is also the case that as the Applicant did not respond to the Invitation within the prescribed 28 day period, the Delegate could not extend the time in which he could do so[9].
[9] Migration Act 1958 (Cth), s.58(4).
The legislation itself indicates that 28 days is an “adequate time” for an applicant to respond or make arrangements. The Delegate’s Decision was made on 28 October 2016. The Delegate provided the Applicant with 28 days to comment, and the Applicant did not provide any further evidence or respond.
Lest the Applicant be arguing that the Delegate should have delayed their decision, it is noted that the Delegate is not required to delay their decision or provide extra time to the Applicant simply because they believe they may meet the criteria sometime in the future[10]. The principals set out in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 do not apply here. There is no evidence before the Court to indicate that a request to delay the decision was made by the Applicant. There was no correspondence or indication given from the Applicant that delaying the decision would be appropriate. Simply, the Applicant sat on his hands.
[10] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, at [82] per Hayne, Kiefel and Bell JJ and [101] per Gageler J.
Pursuant to s.63(3)(c) of the Act, the Delegate was then entitled to proceed to make a decision to refuse the Visa as soon as the 28 day timeframe to respond had lapsed. This was made clear on the Invitation from the Department.
It follows that it was not unreasonable for the Delegate to delay making the decision and the Applicant was provided with the legislatively prescribed “adequate time” to provide information. In the absence of any information that this was not “adequate”, the Delegate was empowered to proceed to decide the application.
The First Ground in the Amended Application fails.
Ground 2
Ground Two of the Amended Application provides that, due to “technical issues” the Sponsor’s nomination application failed and needed to be resubmitted to the Delegate “within a short period”. It is unclear what is meant by this Ground.
On the materials before the Court there is nothing which details any “technical issues”. The only information about the Sponsor’s nomination that the Court has is that the Sponsor’s nomination was refused.
This ground seems to assert that the Delegate should have considered that the Sponsor’s nomination could be resubmitted. The implied assertion in this ground (and that of Grounds four and five), is that it was unreasonable for the Delegate to make a decision, and that the Delegate should have instead provided the Applicant more time to satisfy the relevant visa criteria, namely the requirement to hold a nomination.
The Court repeats what it states in relation to Ground One above. The Applicant was provided 28 days to respond to the Invitation. He did not do so. It was stated on the Invitation if he could not respond within the 28 day period to contact the Department. He did not do so. The Ground itself asserts that the nomination could have been resubmitted “within a short period”. If that “short period” extended beyond 28 days, the Applicant should have advised the Department. Again, he did not.
In the Applicant’s Submissions, the Applicant alleges that on 31 October 2016 the Applicant resubmitted a nomination for the Sponsor. While unfortunate, it nevertheless remains that the 28 day period lapsed on 24 October 2016 and the Applicant never advised the Delegate that such application was being made. Had the Department been advised that such application was close to being lodged then undoubtedly issues of reasonableness would be relevant. Here, there was simply no indication. As such, it was in the area of decisional freedom, in light of the known facts and statutory regime, for the Delegate to proceed to make a decision.
Ground Two of the Amended Application fails.
Ground 3
The Third Ground of the Amended Application provides two assertions being:
a)The Delegate should have requested further information from the Applicant; and
b)The Delegate’s Decision was “inadequate and incoherent”.
The Court will now consider these in turn.
The first assertion in this ground is not supported by the evidence. Rather, it is actually disputed by the evidence before the Court. On 26 September 2016, the Delegate sent the Applicant the Invitation to provide a comment on the very issue it says that the Delegate should have sought more information on. It was not the Delegate who failed to act, it was entirely the Applicant.
The second assertion in this ground merely provides an opinion and cannot be sustained. As stated above, the Delegate’s Decision clearly outlined the legislative provisions and concluded that the Applicant did not meet cl.457.223(4)(a). He, therefore, did not meet the primary criterion for the grant of the Visa and the Delegate was required to refuse the Visa. The Delegate’s Decision is clear and concise.
The Minister noted, in their role as model litigant, that the Delegate’s Decision appeared to contain a “typographical error”. It appeared that the Delegate had inadvertently copied part of following statement in the Invitation into its decision:
If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you, please be advised that you will need to contact them directly.[11]
[11] CB 40.
While a somewhat large typographical error, it is nevertheless immaterial to the Delegate’s Decision and does not render the decision inadequate or incoherent.
Ground Three of the Amended Application therefore fails.
Ground 4
The Fourth Ground in the Amended Application provides that the Delegate’s Decision was unreasonable and that no reasonable person could have reached the decision without assessing the application against all other required criteria.
For the reasons addressed above in Ground 1 and Ground 2, there was nothing unreasonable in the manner in which the Delegate came to make its decision.
Further, it was simply unnecessary for the Delegate to consider any other criteria for the grant of the Visa as the Applicant, having failed to satisfy a mandatory criterion, was unable to be granted the Visa. The Applicant was required to meet all of the criteria and having failed to meet one criterion, the Delegate was mandated to refuse the Visa. Therefore, the Delegate was not required to consider (and it would have been futile to consider) whether the Applicant satisfied any of the other criteria.
Ground 4 fails.
Ground 5
Ground 5 of the Amended Application asserts that the Sponsor’s nomination (lodged on 31 October 2016) was approved on 23 November 2016 and, again, had the Delegate delayed their decision, the Applicant would have succeeded in his visa application.
The Court has already addressed this matter at [37] above.
Quite simply, the nomination application was lodged after the timeframe to respond to the Invitation had lapsed and after the Delegate’s Decision. There is no evidence before the Court that this information was even provided to the Delegate. That a subsequent application had been lodged and accepted was unfortunate but demonstrates no jurisdictional error in the Delegate’s Decision.
Ground Five accordingly fails.
Ground 6
Ground Six of the Amended Application simply asserts that the Delegate erred by failing to give “proper consideration and weight to the circumstances of this matter”. This ground is lacking particulars and is an invitation to the Court to conduct merits review of the Delegate’s Decision. It is not the role of the Court to assess the “circumstances” or merits of the case, but instead to conduct a judicial review of the matter[12]. The weight given to “circumstances” or information is a matter for the Delegate. The Court has no jurisdiction to review the merits of the Delegate’s Decision, and does not intend to do so here.
[12] MZXHY v Minister for Immigration [2007] FCA 622, at [8]; Gupta v Minister for Immigration [2016] FCA 1004, at [27].
Ground 6 of the Amended Application is dismissed.
Conclusion
The Applicant has failed to identify any jurisdictional error made by the Delegate.
Lest the Court be wrong above, even if this matter was remitted, the Visa application would now be futile as it could not be linked to a new nomination or sponsorship, because the subclass 457 visa does not exist anymore. Therefore, it is no longer possible for the Sponsor to seek approval of a nomination for the Visa. The Court therefore concludes that remitting the matter would be futile in any event, and therefore the matter should be dismissed.
The Amended Application is dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Associate:
Date: 18 June 2020
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