FEDERAL COURT OF AUSTRALIA

Dhillon v Minister for Immigration and Border Protection [2018] FCA 86

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs limited to those costs incurred before, but not after, 30 October 2017, and excluding any costs relating to the matters in the notice of contention which may have been incurred before 30 October 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J:

1    This is an appeal from the judgment and orders of Judge Wilson in the Federal Circuit Court made on 3 May 2017. His Honour dismissed an application for judicial review of a decision by the Migration Review Tribunal made on 18 February 2015. The hearing by this Court of the appeal from his Honour’s decision was commenced on 30 October 2017 but was adjourned part heard after counsel appearing for the Minister informed the Court of an error which had been made by the Tribunal that had not been raised in the proceeding before his Honour, and had not previously been raised in the appeal to this Court. Orders were then made to enable the appellants to be informed about the issue which was identified by the Minister and for the parties to file any supplementary submissions they wished to make in respect of the issue. The proceeding was resumed on 13 February 2018 but the appellants did not appear when the matter was called. In those circumstances, the Minister sought, but was not granted, orders in the absence of the appellants, but the Minister was granted an extension of time in which to file, and to rely upon, a notice of contention in the same terms as that filed with an interlocutory application dated 10 November 2017 but in which the parties had been inaccurately described. The Minister was then heard in the absence of the appellants on whether the appeal should be allowed and judgment was reserved. The hearing, however, was resumed soon after judgment having been reserved because the appellants arrived and asked to be heard. The appellants were then informed of what had occurred in their absence and were given an opportunity to make submissions before the matter was again reserved for judgment to be given later on 13 February 2018.

2    The first and second appellants are Indian Nationals who are married to each other and have a son who was born in Australia on 28 November 2013. The first appellant applied for an Employer Nomination (Residence) (Class BW) (Subclass 857) visa on the basis of having been proposed and sponsored by Dinesh Kumar Sharma (trading as “Tandoori Mahal Authentic Indian Cuisine”) as a cook in Mr Sharma’s restaurant which is located in regional Victoria. On 9 May 2013 a nomination submitted by Mr Sharma in support of the first appellant was refused, and on 23 May 2013 the Minister’s delegate invited the appellants to comment on adverse information in relation to their visa application, specifically drawing to the attention of the appellants that the nomination which had been submitted by Mr Sharma had been refused.

3    Another nomination was subsequently purportedly made by Mr Sharma (“the second nomination application”) nominating Mr Dhillon as a cook in Mr Sharma’s restaurant. On 6 June 2013 the Minister’s department acknowledged receipt of the second nomination application from Mr Sharma, and on 7 June 2013 the authorised representative for the appellants drew to the attention of the Minister’s delegate that the second nomination application had been lodged at the request of Mr Sharma. The second nomination application, however, seems inadvertently not to have been taken into account by the person authorised to consider the application by the appellants, and on 28 June 2013 the appellants’ applications for visas were refused. It is not necessary to set out in detail the applications for review which followed that refusal except to note that on 3 October 2014 the Tribunal affirmed the decision refusing the visa but the Tribunal had not taken into account the fact that there had been the second nomination application by Mr Sharma.

4    The Tribunal received an email on 18 November 2014 drawing attention to the second nomination application which had been lodged with the department by Mr Sharma that had been made in June 2013 that had been inadvertently overlooked by the Tribunal. The email received by the Tribunal on 18 November 2014 attached an email which had been sent on 1 October 2014 by the agent for the appellants to the Tribunal attaching a scanned copy of a letter from the department dated 17 December 2013 to Mr Sharma requesting further information in relation to the second nomination application which had been lodged by him in June 2013. The appellants’ agent relied upon the fact that the decision had been made without taking account of the second nomination application to request the Tribunal to re-open the case on that basis. It is doubtful whether the second nomination application was permissible under the provisions in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [82]-[88], but on 12 December 2014 the Tribunal informed the appellants, via their agent, that it had vacated its decision on 3 October 2014 on the basis that the Tribunal had not taken into account submissions which had been received from the appellants’ agents on 1 October 2014 because the matter had not been brought to the attention of the presiding member until after the decision had been made.

5    There then followed further correspondence between the Tribunal and the agent for the appellants in which the Tribunal sought to determine whether the second nomination application which had been submitted by Mr Sharma had been refused or approved. On 11 February 2015 the Tribunal requested an update on the status of the second nomination application which had been made by Mr Sharma and informed the appellants that the Tribunal did not intend to defer its decision any longer and that it would soon make its decision “on the basis that the main applicant is not the subject of an approved nomination by his original employer” if proof of approval was not provided as a matter of urgency. On 18 February 2015 the Tribunal affirmed the decisions not to grant the appellants an Employer Nomination (Residence) (Class BW) visa on the basis that the appointment in the business of Mr Sharma had not been approved. Accordingly, the first appellant did not meet the criteria in clause 857.221 and the second appellant, as a member of the family unit, did not meet criteria in clause 857.321. The consideration and decision of the Tribunal of 18 February 2015 was as follows:

CONSIDERATION OF CLAIMS AND EVIDENCE

l9.    The issue in the present case is whether the first named applicant meets cl.857.221.

Approval of appointment

20.    Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the applicant.

21.    The material before the Tribunal indicates that the nomination by Dinesh Kumar Sharma (trading as Tandoori Mahal Authentic Indian Cuisine) for the position of Cook was not approved by the Department on 9 May 2013. There is no record of the refusal decision in relation to the nomination having been the subject of a review application to this Tribunal. Although the applicants’ agent provided evidence that Dinesh Kumar Sharma had lodged with the Department a new nomination in relation to the first named applicant for the same occupation on 6 June 2013, no information has been provided to the Tribunal to indicate that this nomination has been approved as at the time of the Tribunal’s decision.

22.    As a result, the Tribunal finds that there is no appointment approved under r.5.19, and thus cl.857.221 is not met by the first named applicant.

23.    The Tribunal further finds that the second named applicant does not meet cl.857.32l as she is not a member of the family unit of a person who holds a subclass 857 visa and there is no evidence before the Tribunal to indicate that she meets the primary visa criteria in her own right.

24.    The applicants have only sought to satisfy the criteria for a subclass 857 visa. No claims have been made in respect of the other visa in the class. As the applicants have not met the criteria for a subclass 857 visa, the decision under review must be affirmed.

DECISION

25.    The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.

It was in respect of that decision that the appellants sought judicial review in the Federal Circuit Court on the grounds that the decision had been affected by jurisdictional error warranting intervention. His Honour dismissed the application for judicial review, and it is convenient to deal with the appeal from his Honour’s decision as the appeal stood when the matter first came to be heard in this Court on 30 October 2017 before considering the issue identified by counsel for the Minister at the hearing on 30 October 2017 and which is the subject of the notice of contention.

6    The grounds of appeal relied upon from the decision of Judge Wilson were as follows:

1    The learned Judge erred in law and/or in fact in failing to find that the decision of the Administrative Appeals Tribunal (“the AAT”) was affected by jurisdictional error and/or that the AAT had misapplied the Migration Regulations and/or the Migration Act with respect to the First Appellant’s (“the Applicant”) fulfilment of criteria to attain a Employer Nomination (Residence) Class BW Visa;

a.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant that indicated that he clearly fulfilled all requirements.

b.    The AAT and/or the Federal Circuit Court erred in law and/or in fact and thereby fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law;

c.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims put forth by the applicant that countered the argument that he hadn’t met the criteria.

d.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error when it failed to give proper consideration and weight to the evidence presented by the Applicant.

e.    The AAT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when [t]hen it failed to consider the evidence of the Applicant in totality and cumulatively.

The appellants did not file written submissions in the proceeding at that stage but supported their appeal by an affidavit by the first appellant dated 22 May 2017 stating as follows:

1.    I am the First Appellant in these proceedings.

2.    I make this Affidavit from my own knowledge or to the best of my knowledge, information and belief based on my inquiries.

3.    On 3 May 2017 my application was heard and dismissed in the Federal Circuit Court of Australia, sitting at Melbourne, by Judge Wilson. Annexed and marked ‘GSD1’ is a copy of the Orders.

4.    I was present at the hearing.

5.    I prepared my application to the Federal Circuit Court without any legal assistance.

6.    I have since sought legal advice and now wish to appeal to this court.

7.    To this court I now submit more accurate grounds of appeal than in the Federal Circuit Court.

8.    In my belief these new grounds show jurisdictional error in both the Federal Circuit of the Administrative Appeals Tribunal.

The appellants’ claims in the affidavit do not show an appellable error. Their oral submissions on 30 October 2017 did not materially add to those in the affidavit beyond a claim that the appellants’ agent had been at fault in some unspecified way. The affidavit claimed that the grounds they had put before the Federal Circuit Court had suffered as a result of not having had the benefit of legal advice in the preparation of the submissions in the Federal Circuit Court, but neither the affidavit nor the submissions which were made on 30 October 2017 advanced, particularised, or established any of the grounds of review in the application.

7    It may be unnecessary to say much more about the five grounds for appeal beyond that none of the grounds identified any error. It is clear, however, from the reasons of Judge Wilson that no error was made of the kind that might fall within any of the five grounds described in the grounds of appeal. The reason the application had failed before the Tribunal was that the appellants had failed to establish the conditions necessary for the grant of the visa which they had sought in the context of the Tribunal’s requests that proof be provided. The appellants had not been denied procedural fairness but had expressly been asked to provide the information needed to satisfy the criteria for the visa they had applied for. The Tribunal had expressly informed the appellants that the Tribunal intended to make a decision upon the basis of a failure to provide information and gave the appellants an opportunity to provide the information required to establish their claim. His Honour took all that into consideration at [13]-[20] and correctly dismissed the application.

8    The Minister accepts in this appeal, however, that the Tribunal made an error in not having put to the first and second appellants information required to have been put to them in accordance with its obligation under s 359A(1) of the Migration Act 1958 (Cth) (“the Act”). That was the matter which was drawn to the attention of the Court on 30 October 2017 which led to the proceeding being adjourned part heard to enable the Minister to inform the appellants, who were not legally represented and who had not previously had notice of the error which the Minister conceded had been made. The Minister subsequently filed an application dated 10 November 2017 for interlocutory orders to file a notice of contention to uphold his Honour’s decision on other grounds (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [27]) and provided an outline of supplementary submissions, also dated 10 November 2017, to which the appellants responded in general terms on 24 November 2017. The Minister submitted that the Tribunal’s error did not warrant allowing the appeal as in the circumstances it would be futile to do so. The response by the appellants was essentially that the error went to merits review for the Tribunal to determine rather than for the Court to decide in the manner sought by the Minister.

9    The Tribunal had an obligation to give clear particulars to the appellants of any information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review. Section 359A of the Act provides:

(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; or

(b)    if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(5)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

In the present case the information which the Tribunal ought to have particularised was that there had been no record of the refusal decision in relation to the “first” nomination application having been the subject of a review application to the Tribunal. The Tribunal stated at [21]:

The material before the Tribunal indicates that the nomination by Dinesh Kumar Sharma (trading as Tandoori Mahal Authentic Indian Cuisine) for the position of Cook was not approved by the Department on 9 May 2013. There is no record of the refusal decision in relation to the nomination having been the subject of a review application to this Tribunal. Although the [First and Second Appellants’] agent provided evidence that Dinesh Kumar Sharma had lodged with the Department a new nomination in relation to the [First Appellant] for the same occupation on 6 June 2013, no information has been provided to the Tribunal to indicate that this nomination has been approved as at the time of the Tribunal’s decision.

(Emphasis added).

It is the information in the words which are emphasised, and which were appropriately emphasised also in the written submissions to this Court by the Minister, that was not given to the appellants pursuant to s 359A(1) of the Act. That information had not been given to the Tribunal by the appellants but was known to the Tribunal from an inquiry initiated by the Tribunal on 24 July 2014. The absence of a review application was considered in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [52]-[56], and [82], to be information which ought to have been provided in the context of comparable provisions to those in this appeal. The Minister submitted, however, that the failure by the Tribunal to have given that information to the appellants was not material in this proceeding because an appeal would be futile: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190.

10    A conclusion that it would be futile to remit a matter to the Tribunal should not be made lightly. The failure by the Tribunal to comply with s 359A(1) is a jurisdictional error (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [13]; SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009, [78], [173], [208]) and the appellants are entitled to expect that the Minister and the Minister’s department will comply strictly with statutory obligations. However, relief may not be granted as a matter of discretion if to grant relief would be futile: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [27]-[29]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [81]-[90]. The proceeding before Judge Wilson was for judicial review and, although the appellants had not argued in the proceeding before his Honour that there had been a breach by the Tribunal of s 359A(1), the application of the relevant principles concerning the exercise of the discretion would necessarily have resulted in his Honour refusing to grant relief. That is because the Tribunal was bound to have affirmed the decision of the Minister’s delegate. The undoubted fact before the Tribunal was that there had been no approval of a nomination and on that basis the Tribunal was required to affirm the decision which had been made not to grant visas to the appellants. In those circumstances the application for judicial review had to be dismissed by his Honour on discretionary grounds: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [87], [91]-[92]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105, [81]-[90]. Accordingly, the appeal from his Honour’s decision must also fail.

11    It may not therefore be necessary to consider an application made by the appellants for the joinder of their son as a third appellant in the appeal, but it is desirable to say something about that application. The appellants’ son was born on 21 June 2013 but was not named as a party in the application for judicial review to the Federal Circuit Court or in the appeal from that decision to this Court. The Minister’s department had been informed of the birth of the child on 28 November 2013, and the Minister’s delegate formally decided to refuse an application that the infant be granted a visa. An application was made on 23 December 2013 for the Tribunal to review that decision. On 6 March 2015 the Tribunal affirmed the decision of the Minister’s delegate refusing a visa to the infant. That decision by the Tribunal was made by the same member who on 18 February 2015 had affirmed the decision made by the Minister’s delegate refusing the visa to the appellants.

12    An application by the appellants for review of the 18 February 2015 decision was made, but no application was made on behalf of the son to review the decision which had been made in respect of him on 6 March 2015. Each of the decisions was separate, and the child was not properly a party to the decision which had formally been made on 18 February 2015 in respect of which the parties affected were the appellants. Section 478 of the Act provides who may make an application and s 479 of the Act provides who may be parties to review. Those provisions are in the following terms:

478    Persons who may make application

An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:

(a)    if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or

(aa)    if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or

(b)    in any other case—the person who is the subject of the decision; or

(c)    in any case—a person prescribed by the regulations.

479    Parties to review

The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:

(a)    if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or

(aa)    if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or

(b)    in any other case—the person who is the subject of the migration decision; or

(c)    in any case—a person prescribed by the regulations.

The child had no standing to bring an application to seek review of the decision in relation to the appellants. His interests are not directly affected by the outcome of their appeal to the Court and leave for him to be joined as a party will be refused.

13    Accordingly, the appeal will be dismissed with costs limited to those costs incurred before, but not after, 30 October 2017, and excluding any costs relating to the matters in the notice of contention which may have been incurred before 30 October 2017.

Associate:

Dated:    13 February 2018