Yambao v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 704
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yambao v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 704
File number(s): SYG 588 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 22 August 2022 Catchwords: MIGRATION – Tribunal finding of no jurisdiction – whether Department should advise applicants regarding whether they meet s 338 of the Migration Act 1958 (Cth) by reference to s 140GB – failure of lawyer to disclose involvement – no s 359A obligation arises in absence of jurisdiction Legislation: Migration Act 1958 (Cth) ss 66, 140E, 140GB, 338, 359A, 486F, 486I
Migration Regulations 1994 (Cth) reg 4.02, cl 457.223
Cases cited: Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13
DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564
SZEAC v Minister for Immigration and Citizenship [2007] FMCA 1552
SZEYK & Minister for Immigration and Citizenship [2008] FCA 1940
SZHMM v Minister for Immigration and Citizenship [2008] FMCA 343
SZHOK v Minister for Immigration and Citizenship [2008] FMCA 1104
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 22 August 2022 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr E Taylor of Mills Oakley ORDERS
SYG 588 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROMMEL DON-DON YAMBAO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 6 March 2018 is dismissed.
3.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 6 March 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 February 2018, by which the Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent (delegate) to not grant the applicant a Temporary Work (Skilled) (Subclass 457) visa.
Background
The applicant is a male citizen of the Philippines (Court Book (CB) 13) who on 21 February 2017 lodged an application for a Temporary Work (Skilled) (Subclass 457) visa and listed his sponsoring employer as being a particular company (sponsor) (CB 1-12).
For the grant of the visa, the applicant was required to satisfy cl 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly provided that at the time of decision:
(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; and
…
On 6 September 2017, the nomination application in respect of the applicant was refused by the first respondent’s Department (CB 69). Of importance in this case is that the sponsor did not seek review of the nomination refusal (CB 71).
On 19 September 2017, the Department invited the applicant to comment on information, namely that the sponsor did not have an approved nomination for the applicant. The Department requested a response to this information in writing within 28 days of the date of the letter (by 17 October 2017) (CB 38-40). The Department did not receive any response from the applicant to this invitation.
On 11 December 2017, the delegate refused to grant the applicant the visa on the basis that he did not meet cl 457.223(4)(a) as the applicant was not the subject of an approved nomination (CB 56-58).
The Tribunal
On 20 December 2017, the applicant lodged an application for review with the Tribunal and stated that he was seeking review of a decision to refuse a visa class “TU”, and subclass “500” visa dated 11 December 2017 (CB 59-60). He also attached a copy of the delegate’s decision dated 11 December 2017 to his application form (CB 60) and appointed an authorised recipient.
On 22 January 2018, the Tribunal wrote to the applicant (via his authorised recipient) and invited him to comment on the validity of the application for review (CB 72-74). The letter stated that at the time the review application was lodged, the applicant was not identified in a nomination under s 140GB of the Migration Act 1958 (Cth) (Act) that was approved or pending and there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s 140E, or a decision not to approve the nomination under s 140GB of the Act. The applicant was invited to comment on whether a valid application had been made by 5 February 2018 (CB 74).
On 14 February 2018, the applicant’s representative forwarded a response from the applicant to the Tribunal by email (CB 77-78). The applicant stated that he had ongoing work with his sponsor and was unaware of whether his sponsor had lodged an application for review of the nomination decision with the Tribunal. The applicant’s representative sent a further email to the Tribunal on 15 February 2018 and submitted that the sponsor was “willing to help” the applicant with his application and stated (at CB 79):
Please advise the next step for his Employer or for Mr Yambao.
The Tribunal’s decision
On 19 February 2018, the Tribunal found it had no jurisdiction to review the delegate’s decision (CB 85-87).
The Tribunal found that s 338 of the Act and reg 4.02(4) of the Regulations set out the range of decisions that were reviewable by the Tribunal (CB 86, [2]) and that based on the Full Court’s decision in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365, it only had jurisdiction to review decisions to refuse a Subclass 457 visa where:
(a)the applicant was identified in an approved nomination under s 140GB by an approved sponsor including an application not yet decided: s 338(2)(d)(i); or
(b)there was a pending application for review of a decision not to approve the standard business sponsor under s 140E, or a pending review of a decision not to approve the nomination under s 140GB: s 338(2)(d)(ii) (CB 86, [3]-[4]).
As the Department’s records indicated the sponsor’s nomination application had been refused on 6 September 2017 and the sponsor had not applied to the Tribunal for review of that decision (CB 86, [5]), the Tribunal found that at the time of the review application, the applicant was not the subject of a pending nomination application or an approved nomination and there was no pending review of the nomination refusal (CB 86-87, [6]).
The Tribunal found that the information provided by the applicant and representative in response to the invitation to comment on the validity of his review application did not demonstrate that s 338(2)(d) had been met and concluded that the delegate’s decision was not reviewable (CB 87, [8]). As the delegate’s decision was not reviewable, the Tribunal found that the application for review was not properly made and that it did not have jurisdiction in the matter (CB 87, [9]).
APPLICATION TO THIS COURT
As noted, these proceedings were commenced by an application to show cause on 19 February 2018. On 29 March 2018, a Registrar of this Court made orders which included that the applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 21 June 2018. This did not occur, nor did the applicant file any written submissions, as registered by orders made by a different Registrar of this Court on 22 December 2021, at which date the matter was brought into my docket and listed for hearing initially on 22 February 2022.
On 7 February 2022, the applicant wrote to the Court seeking an adjournment of that initial hearing date on the basis that his newly born child required neonatal intensive care treatment, having been born prematurely. In the circumstances I immediately adjourned the matter for six months until today. The applicant appeared before me today in person, together with his infant son who was a very good boy during the hearing. The Minister was represented by a solicitor.
By the originating application, the applicant seeks judicial review of the Tribunal’s decision and raises two grounds of review (errors in original):
Ground 1
The Tribunal failed to provide clear particulars of information under section 359 A of the Migration act and failed to advise the relevance of such information in relation to my case.
Particulars
The Tribunal in its decision noted that Department records indicate department refused to approve Patel’s nomination application and Patel Group of company did not apply for a review application. This is an information which should have been put to me under section 359 a of the Migration Act
Ground 2
The Department of Home Affairs in its decision dated 11 December 2017 advised me that I have review rights and advised me to lodge a review application within 21 days which I have lodged. As per the advised of the Department i lodged my review application. The Department did not advise me that I cannot lodge the application unless there is a pending nomination or a pending nomination review application. As such, the Department refusal decision has no validity.
The Minister has filed written submissions and I have been assisted by those written submissions. As noted, the applicant did not file written submissions, but I invited him to make oral submissions today about each of his grounds.
Possible failure of a lawyer to disclose involvement
When initially asked to address ground 1, by which the applicant alleges that the Tribunal failed to comply with s 359A of the Act, the applicant indicated that he did not know what to say because he said that he left the drafting of it to his lawyer.
I explored this with the applicant because on the face of the application (namely the footer on page 1) it does not appear that the applicant has ever been represented by a lawyer. There is no other document on the file to reveal any representation either. However, it does seem that the grounds have been drafted with some assistance.
The failure to disclose involvement is regrettable and not in keeping with the Court’s practice and procedure and Rules, as I have now addressed in a number of decisions, including BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13, AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 and DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564.
What is of greater concern is that, having explored this matter in further detail with the applicant, he indicated that he did not know who the lawyer was, but that his “bosses” helped to obtain the lawyer for him. I confirmed with the applicant whether by this he meant that his visa sponsor had assisted him in obtaining the lawyer. The applicant said “yes”, but that he did not remember the lawyer’s name however, the applicant described him as being “an Indian gentleman”. From the manner in which he gave this information from the Bar table, I accept that the applicant genuinely does not remember the name of the lawyer. He says it was a very long time ago that he consulted him. Of further concern is that, apparently, his employer “helped” him to obtain the services of the lawyer, by apparently choosing the lawyer but making him pay for the lawyer himself by deducting the legal fees from his wages.
Aside from the fact that it left the applicant in a position whereby he was not actually able to address the grounds today, in my view any lawyer who the applicant has paid has done him no great service because, for reasons which I will outline shortly, the grounds are without merit and in those circumstances ought not to have been advanced or encouraged. It may be a matter for the applicant to explore with the Law Society with the benefit of these reasons for judgment whether or not he ought to have been charged for the preparation of this application. I also note that not only did the lawyer not disclose his involvement in the matter by completing the footer of the Court’s form on the application as he was required to do, but he also did not sign the lawyer’s certification under s 486I of the Act.
On its face, it seems to me that there were no reasonable grounds for believing that the migration litigation had a reasonable prospect of success such that had the lawyer disclosed their identity they may be liable for a costs order under s 486F of the Act. Again, this is a matter for the applicant if he wishes to take that further with the Law Society.
The applicant was unable to address me substantively in relation to either of the grounds but was given the opportunity to do so. I also gave him an opportunity to make general submissions, and so the applicant said that he really did not wish to waste any more time in pursuing something where it appears the application to this Court, and to the Tribunal, had not been made properly. He said that he thought that everything was going well, but that clearly it had not, and he did not want to press the matter further.
In the interests of thoroughness and because the application before the Court raises two grounds, I will address them.
Ground 1
In relation to the first ground, the first respondent says that this ground was misconceived because s 359A of the Act was not engaged. That is because the Tribunal had found that it did not have jurisdiction and therefore there was no review to be undertaken by the Tribunal. In SZEYK & Minister for Immigration and Citizenship [2008] FCA 1940 at [36] to [38], her Honour Bennett J found the following:
Common law natural justice and procedural fairness
Where s 422B of the Act was not engaged, the third Tribunal may have been obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction or authorisation to review the application.
Common law natural justice and procedural fairness require that the applicant be given a reasonable opportunity to deal with matters adverse to his interest that the decision maker proposes to take into account in exercising its power.
The third Tribunal gave the applicant the opportunity to make submissions on the question of jurisdiction before reaching its decision, in accordance with principles of natural justice and procedural fairness. The third Tribunal was not required to invite the applicant to a hearing, or to put its thought processes about its jurisdiction to the applicant for comment. The invitation to submit further “documents, information or other evidence” satisfied the third Tribunal’s obligations to accord the applicant natural justice and procedural fairness, in circumstances where the applicant did not avail himself of the opportunity to make a submission or seek a hearing.
It follows that the Tribunal is obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction to review the application. In the instant case, that obligation was satisfied by the Tribunal inviting the applicant to comment upon the validity of the application he made to it, noting that the applicant had not been identified in a nomination that was either approved or pending, nor was there any pending application for review before the Tribunal for a decision not to approve the sponsor or the nomination.
In this regard, I find that the Tribunal did afford the applicant procedural fairness. There otherwise being no review consequent upon its decision about jurisdiction, there was no s 359A obligation extant: SZEYK (supra) at [34] and [40], SZHMM v Minister for Immigration and Citizenship [2008] FMCA 343, SZHOK v Minister for Immigration and Citizenship [2008] FMCA 1104 and SZEAC v Minister for Immigration and Citizenship [2007] FMCA 1552, each per Barnes FM, as her Honour then was. Accordingly, in my view, ground 1 must fail.
Ground 2
By ground 2, the application says that the first respondent erroneously advised the applicant that he had review rights and that he should lodge an application within 21 days, which he did.
As noted, the applicant did not have anything to say in oral submissions in relation to this ground. The letter in question by which the ground of review relates is found at pages 52 to 53 of the Court Book. Under the heading “Review Rights”, the letter states:
The decision can be reviewed.
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision.
An application for review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter. The review period is prescribed in law and an application for merits review cannot be accepted after that date.
You must be physically present in Australia at the time this application for merits review is made.
To the extent that the ground says that the Department “advised me to lodge”, the applicant may be taken to be suggesting that he was in some way encouraged to make the application. However, in my view, that is not borne out in the letter. The letter merely indicated that the applicant could do so if he wished by stating “you are entitled to apply”. As noted above at [9], the applicant’s representative wrote to the Tribunal to ask for advice as to next steps. However this does nothing to convert the template letter which accompanied the written reasons for decision from more than a generic statement about the review rights. While it is true that the letter says that the decision can be reviewed, this is not inaccurate, nor is it misleading. That is because the decision is not precluded from review. Rather, it is capable of review, provided that s 338 of the Act was met.
In the instant case, s 338 was not met because at the time of the review application the applicant was not the subject of a pending nomination application or an approved nomination, and there was no pending review of the nomination refusal. Accordingly, in the instant case, the Tribunal was correct to find that it did not have jurisdiction: see Ahmad (supra).
The first respondent says that there is no proper basis for reading into s 66(2)(d) of the Act an enlarged obligation on the Minister to advise potential applicants for review of the requirements of s 338(2)(d) of the Act and reg 4.02 of the Regulations, and I agree.
The applicant was on notice of the basis upon which the delegate had refused him, which included that he could not meet the visa criteria. It was a matter for the applicant to seek advice and understand the effect of that going forward and the impact it may have on any review. I have already commented about the fact that the applicant was, in fact, provided with migration and legal advice and yet none of those matters appears to have been canvassed with him and he was encouraged to file the application for review to this Court. That is a matter that causes the Court some concern particularly as it exposes him to an adverse costs consequence upon his application being dismissed.
In my view, there is no error as alleged by ground 2 or at all and it fails.
Conclusion
The decision is not affected by error and, absent a jurisdictional error, it is a privative clause decision and the application should be dismissed and I will so order.
Upon the dismissal of the application, the solicitor for the Minister seeks a costs order fixed in the sum of $5,400. The applicant asked for time to pay.
I have had regard to a number of factors in relation to costs. The Court file reveals the applicant was present at a first Court date in 2018 at which he completed a first Court date form, which means that he was also given an information sheet explaining that he may be liable for the Minister’s costs in this matter if he were unsuccessful. I am satisfied that the applicant has been aware, at least since that juncture in the proceedings on 29 March 2018, that there may be costs consequences to prosecuting these proceedings to finality. I am satisfied the applicant was aware of this yet continued in the proceedings in any event.
The amount sought by the Minister is considerably less than the Court’s scale and the Minister has prepared a number of documents in the ordinary course and has undertaken an amount of work which makes that costs amount sought reasonable. As noted earlier in the judgment, there have been some unfortunate recurring medical events which relate to the premature birth of the applicant’s son and he says these have caused considerable expense. The Court is not unsympathetic to that situation, but those circumstances do not displace the general and proper application of usual costs principles that costs should follow the event.
In those circumstances, I am satisfied that a costs order should follow the event. I am further satisfied that $5,400 is a reasonable amount, having regard to the work undertaken. As I explained to the applicant, he will shortly receive correspondence from the solicitors for the Minister, which will indicate to him details with whom at the Department he can speak regarding not only a potential reduction of that amount, but also time to pay with instalments.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 August 2022
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