FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    On or before 4 pm on 28 July 2017, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

4.    On or before 4 pm on 11 August 2017, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.    In the absence of any agreement having been reached on or before 18 August 2017, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JAGOT J:

1    I agree with the reasons of and orders proposed by Justice Mortimer.

Associate:

Dated:    14 July 2017

REASONS FOR JUDGMENT

BROMBERG J:

2    I agree with the reasons of and orders proposed by Justice Mortimer.

Associate:

Dated:    14 July 2017

REASONS FOR JUDGMENT

MORTIMER J:

3    This appeal concerns a decision to refuse to grant the appellant a Regional Employer Nomination (Permanent) (Class RN) Visa (RN visa) under s 65 of the Migration Act 1958 (Cth). On 27 January 2015, the then Migration Review Tribunal affirmed the delegate’s refusal, and on 12 August 2016 the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s decision.

4    The appellant now appeals to this Court. For the reasons set out below, the appeal should be dismissed.

The legislative framework and the appellant’s visa application

5    The class of visa for which the appellant applied was part of the “Subclass 187 Regional Sponsored Migration Scheme (Direct Entry)” stream. It was one of a number of kinds of employment related visas available under the legislative scheme. As the visa application itself stated, a key aspect of the criteria for this class of visa was that the employment position to which the visa application related had to be a position that the applicant has been nominated for by her or his prospective employer, and that employer nomination had been approved by the Minister under the regulations.

6    Section 46(2) of the Migration Act provides that subject to subs (2A) (which is not presently relevant) an application for a visa is valid if under the regulations the application is taken to have been validly made. At the relevant time, one of the requirements prescribed by the Migration Regulations 1994 (Cth), for the purposes of s 46(2) was that an applicant for a RN visa “declare in the application that the position to which the application relates is a position nominated … under regulation 5.19”. This validity requirement for the purposes of s 46(2) was contained in cl 1114C(3)(d)(i) of Sch 1 to the Regulations.

7    In turn, reg 5.19 provided for a “nominator” to apply to the Minister for approval of the “nomination of a position in Australia”. In substance, this is the mechanism through which an employer wishing to employ a non-citizen applicant for this visa secures ministerial approval of the “position” in which the employer seeks to employ the person. The word “position” is not defined, but it clearly does not refer to whatever label is given to a job. Rather it refers to a particular role, incorporating the duties and tasks involved in performing that role.

8    Regulation 5.19 provided that the Minister must approve a nomination of a position in Australia if certain specified criteria are satisfied: specifically, either the criteria in reg 5.19(3) or (4). The presently applicable set of criteria is reg 5.19(4). Those criteria include whether the position is located in regional Australia, whether the nomination application identifies a need for the nominator to employ a person to work in the position, whether the employee will be employed on a full time basis for at least two years and on terms and conditions no less favourable than those which would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace and location, whether the tasks to be performed correspond with the tasks for an occupation specified by the Minister in a legislative instrument and, finally, that the nominator has fulfilled specified training requirements relating to the employment of Australian citizens and permanent residents.

9    Although it is a lengthy provision, it is worthwhile setting out the whole of reg 5.19(4), because the level of particularity and specificity is not unimportant in the consideration of some of the appellant’s arguments:

(4)    The Minister must, in writing, approve a nomination if:

(a)    the application for approval:

(i)    is made in accordance with subregulation (2); and

(ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and

(b)    the nominator:

(i)    is actively and lawfully operating a business in Australia; and

(ii)    directly operates the business; and

(c)    for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses–the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

(d)    both of the following apply:

(i)    the employee will be employed on a full-time basis in the position for at least 2 years;

(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e)    the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i)    are provided; or

(ii)    would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f)    either:

(i)    there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(g)    the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

(h)    either:

(i)    both of the following apply:

(A)    the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(B)    either:

(I)    the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

(II)    the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

(ii)    all of the following apply:

(A)    the position is located in regional Australia;

(B)    there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

(C)    the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

(D)    the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

(E)    the business operated by the nominator is located at that place;

(F)    a body that is:

(I)    specified by the Minister in an instrument in writing for this sub-subparagraph; and

(II)    located in the same State or Territory as the location of the position;

has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

10    In relation to reg 5.19(4)(h)(ii), several matters may be noted. There are aspects of these criteria which call for some evaluation, such as whether there is a “genuine need” for the nominator to employ a person. The criteria contemplate advice being given to the Minister about certain aspects of the nomination criteria. Further, the legislative scheme intends there to be a high level of specificity around the grant of approval of nominations, with the criteria being directed at ensuring that the employment of Australian citizens and permanent residents is not unduly affected by the employment of a non-citizen in a particular position, as well as that the non-citizen is not going to be exploited by the prospective employer.

11    By reg 5.19(5), if these criteria were not satisfied, the Minister was required to refuse the nomination of the position. By reg 5.19(6), merits review of a refusal was available.

12    Aside from cl 1114C(3)(d)(i) of Sch 1 setting out preconditions to the making of a valid application for a RN visa, as part of the requirements under s 65 of the Migration Act, the criteria set out in cl 187.233 of Sch 2 of the Migration Regulations had to be satisfied at the time of decision. Those criteria, relevantly, were:

(1)    The position to which the application relates is the position:

(a)    nominated in an application for approval that seeks to meet the requirements of:

(i)    subregulation 5.19(4)(h) ii); or

…

(b)    in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

…

(3)    The Minister has approved the nomination.

…

13    The sequence of events in relation to the appellant’s RN visa application was as follows. He made his application on 7 June 2013. In that application he stated he had been nominated by his prospective employer, Harrico Pty Ltd. The “nominated occupation” he identified was a “Customer Service Manager”. As reg 5.19 contemplates, the nomination process was carried out by the employer, not the visa applicant: in this case, by Harrico Pty Ltd.

14    The appellant’s visa application also contained a declaration, in accordance with cl 1114C(3)(d)(i) of Sch 1 to the Regulations, that the position to which his visa application related was a position nominated under reg 5.19. The relevant declaration in the prescribed form for this class of visa, as completed by the appellant, read:

Have declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Citizenship.

(Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Citizenship.)

Yes

15    On 7 June 2013, the appellant was informed by the Department that his visa application had been assessed as a valid application.

16    The nomination application under reg 5.19(1) by Harrico was not in evidence before the Federal Circuit Court or on the appeal. On 5 December 2013, pursuant to reg 5.19(5), a delegate of the Minister decided to refuse the nomination by Harrico. A decision record of this refusal was in evidence before the Court and relevantly stated:

The nomination does not meet the legal requirement in subregulations 5.19(3) and 5.19(4) of the Regulations on the date I made my decision.

….

Reasons for Decision

The nominator, Harrico Pty Ltd, lodged a nomination application online on 2 June 2013 under the Direct Entry stream relating to nominee ANGREJ SINGH in the nominated position of Customer Service Manager (ANZSCO149212).

The application lodged by the nominator did not include any evidence to demonstrate that the nominator meets the requirements under subregulation 5.19(4). To date, no information has been provided by the nominator.

In the absence of any evidence to substantiate the nominator’s claims, I find that the nominator does not satisfy Clauses 5.19(4)(a)(ii), 5.19(4)(b)(i), 5.19(4)(d), 5.19(4)(e) and 5.19(4)(h) of the Regulations on the date I made my decision. Therefore, the nominator does not meet 5.19(4).

17    There was no dispute between the parties that as the nominated prospective employer, Harrico could have sought review of that decision in the Migration Review Tribunal: see s 338(9) of the Act, read with reg 4.02(4)(e) and reg 5.19(6). Nor is it in dispute that no such review application was lodged.

18    The appellant, through his representative, was informed of the refusal of Harrico’s nomination.

19    In a letter dated 19 December 2013, a delegate invited the appellant, through his representative, to “comment” on the nomination refusal. The letter said:

The nomination submitted to the department by Harrico Pty. Ltd. listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved.

20    The letter went on to inform the appellant he had two options: to withdraw the visa application (losing any review rights) or to have it determined on the basis that the nomination refusal of Harrico “will result in the refusal of your [visa] application”, but preserving review rights. No statement was made by the delegate about the value or efficacy of any merits review in these circumstances.

21    The evidence also disclosed that on 15 December 2013, shortly after the nomination refusal but before the delegate’s letter to the appellant, the appellant’s representative attempted to lodge, on behalf of the appellant’s employer, a new position nomination application under reg 5.19(1) in relation to the appellant’s visa application. The representative asked that the new nomination application “be joined to” the appellant’s RN visa application. Also on 19 December 2013, the Department responded to this request by informing the appellant’s representative that a new nomination application cannot be “attach[ed]” to an existing RN visa. Whether this statement is correct or incorrect forms part of the appellant’s arguments on the appeal.

22    The absence of an approved nomination under reg 5.19 led, as the delegate had foreshadowed to the appellant and his representative, to the refusal of the appellant’s visa application, on the basis that the criterion set out in cl 187.223(3) was not satisfied. That was the criterion which related to whether the Minister has approved the position nomination by the employer.

23    As I have noted, the appellant applied to the Tribunal for review of the delegate’s decision to refuse to grant the RN visa on 28 March 2014. The evidence does not reveal what occurred between the lodgement of the review application and December 2014.

24    On 18 December 2014, the Thursday before the week of Christmas 2014, an invitation pursuant to s 359A of the Migration Act was issued by the Tribunal to the appellant, through his representatives. The invitation was in the following form:

18 December 2014

Dear Mr Singh

INVITATION TO COMMENT ON OR RESPOND TO INFORMATION — MR ANGREJ SINGH

1 am writing about your application for review of a decision to refuse you the grant of a Regional Employer Nomination (Class RN) visa, Subclass 187.

On review, the Tribunal is required to determine whether you are the subject of an approved appointment in the business by the nominating employer. The Migration Regulations Schedule 2, clause 187.233 requires the Tribunal to be satisfied that you are the subject of an approved appointment as follows:

187.233

(1)    The position to which the application relates is the position:

(a)    nominated in an application for approval that seeks to meet the requirements of:

(i)    subparagraph 5.19(4)(h)(ii); or

(ii)    subregulation 5.19(4) as in force before I July 2012; and

(b)    in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2)    The person who will employ the applicant is the person who was the nominator in the application for approval.

(3)    The Minister has approved the nomination.

(4)    The nomination has not subsequently been withdrawn.

(5)    The position is still available to the applicant.

(6)    The application for the visa is made no more than 6 months after the Minister approved the nomination.

The Tribunal now writes to you to invite you to comment on or respond to information.

Invitation to comment on or respond to information

The Tribunal had information that it considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decision that is under review. The purpose of this letter is to invite you to comment on or respond to the information.

However, please note that the Tribunal has not yet made up its mind about the information.

The particulars of the information which you are invited to comment on or respond to are as follows:

•    Harrico Pty. Ltd. made an application to nominate you for an appointment in its business under the Regional Sponsored Migration Scheme (RSMS). The Department made a decision to refuse it the nomination on 5 December 2013. No application for review of that decision has been received by the Tribunal.

The effect of this is that there is no approved nomination by Harrico Pty. Ltd. for you in their business under the provisions of the Subclass 187 Regional Employer Nomination (Class RN) visa category.

This information is relevant because, if accepted by the Tribunal, it would lead the Tribunal to conclude that you are not the subject of an approved nomination for employment in the business of Harrico Pty. Ltd. and it would follow that you do not meet the requirements of cl.187.233. This would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate in respect of your subclass 187 visa application.

•    You are accordingly invited to give comments on or respond to the above information in writing.

Your comments or response should be received at the Tribunal by 2 January 2015. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 2 January 2015, you may ask the Tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 2 January 2015 and you must state the reason why the extension of time is required.

The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

If you have any questions, please email registry@mrt-rrt.gov.au, or contact me on the number listed below, or telephone the Tribunal's national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

Yours sincerely

[Identifying information redacted.]

(Emphasis in original.)

25    What then occurs, by way of a sequence of events, forms the basis of the appellant’s procedural fairness and legal unreasonableness grounds of review, as expressed in his notice of appeal.

26    On 19 December 2014, the day after the s 359A invitation was sent, the appellant’s representative sent a facsimile transmission to the Tribunal. In that facsimile transmission, the appellant’s representative acknowledged receipt of the s 359A invitation and sought an extension of time to respond to it. An extension was sought to 15 February 2015. In that facsimile transmission, the appellant’s agent also stated:

We also advise as follows:

1.    Our client has an employer who will sponsor him for the 457 visa.

2.    We expect to lodge these applications by 31 January 2015.

3.    Our client will then depart Australia to lodge an offshore 457 application. Following this we expect to withdraw the applicants MRT application.

27    There was no direct response by the Tribunal to this facsimile. The next communication was also from the appellant’s representative and consisted of an email to the Tribunal on 2 January 2015, stating that the representative’s office had closed on 19 December 2014 and “we are not back till 7th jan”. I infer the reason for this email being sent was that 2 January was the deadline for a response to the s 359A invitation, and the representative had not heard back from the Tribunal in relation to his 19 December fax and whether any extension of time would be granted. Appropriately, he sent another request on the day of the deadline, to ensure the Tribunal understood there was a request for an extension of time.

28    On 9 January 2015, the Tribunal wrote to the appellant through his representative, referring to the communication on 2 January 2015 and stating the Tribunal had agreed to grant an extension of time to 23 January 2015. The Tribunal’s letter stated:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

On 18 December 2014 the Tribunal sent you an invitation to comment on or respond to information.

On 2 January 2015 the Tribunal received a request for an extension of time to provide the comments or response.

The Tribunal has considered the request carefully and has agreed to grant an extension of time. The comments or response must now be received at the Tribunal by 23 January 2015.

If the Tribunal does not receive your comments or response by 23 January 2015, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

(Emphasis in original.)

29    Despite the Tribunal granting that extension of time to the appellant, the appellant did not submit any response to the Tribunal, although on the evidence his representative’s office had re-opened on 7 January 2015. The appellant’s representative did not, for example, inform the Tribunal he had attempted to lodge a second employer nomination. He did not inform the Tribunal Harrico was prepared to lodge a further nomination application, or keep the position open for the appellant. Whether any of these matters would have made a difference one cannot say, however they were relevant factual matters.

30    Four days after the extension of time period expired, on 27 January 2015, the Tribunal affirmed the decision of the delegate to refuse to grant an RN visa to the appellant. The basis for affirming the decision of the delegate is set out in [14]-[16] of the Tribunal’s statement of reasons:

14.     As indicated in the delegate’s decision, a copy of which was provided with the review application, the application for approval of the nominated position made in respect of the applicant was refused by the Department. There is no evidence or any claim that the nominating employer has applied for review of that decision.

15.     On the evidence before it, the Tribunal is not satisfied at the time of its decision, there is an approved nominated position in relation to the applicant.

16.     Therefore, cl 187.233 is not met.

31    In its reasons for decision, the Tribunal also referred to its invitation pursuant to s 359A of the Migration Act and what it considered to be the statutory consequences of a failure by the appellant to provide any response to that invitation.

32    Section 359A provided:

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; 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.

33    The statutory consequences of not responding to a s 359A invitation are set out in s 359C(2) of the Act, which provided:

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.

34    The Tribunal also relied on the terms of s 360, and in particular s 360(3) of the Migration Act. Section 360 provided:

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:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(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.

35    The Tribunal made the following findings about the application of these provisions at [8] and [9] of its statement of reasons:

8.    As at the date of this decision, the review applicant has not provided the comments within the prescribed period as extended. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9.    The Tribunal is satisfied that the invitation was correctly issued and has decided to proceed to decision without taking further steps to obtain the comments.

The grounds of review and appeal

36    Before the Federal Circuit Court, the appellant was not legally represented, although the Federal Circuit Court adjourned the matter for approximately two months, partly so that he might try to obtain legal assistance. Accordingly, the grounds of review before the Federal Circuit Court, although couched in the language of judicial review, were clearly not grounds that the appellant was equipped to develop before the Federal Circuit Court. Those grounds were:

1. The MRT took account of irrelevant considerations.

2. The MRT failed to take account of relevant considerations.

3. The MRT erred at law.

37    On the basis of submissions properly made by the Minister, the Federal Circuit Court’s attention was drawn to the decision in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233; 194 FCR 11, which considered the scope of the disentitling provisions in s 359C. That decision concerned what constituted a “response” for the purposes of s 359A(1)(c) and for the purposes of s 359C(2)(b).

38    As the Federal Circuit Court noted at [27] of its reasons for decision, the Minister sought to distinguish Saba Bros on the basis that there was at least some kind of response from the applicant’s representatives in that case, together with an indication that the applicant still wished to attend an oral hearing. In the present appellant’s circumstances, the Minister submitted to the Federal Circuit Court that there was no substantive response at all. The Federal Circuit Court agreed with this submission: see [28] of the Federal Circuit Court’s reasons. The Federal Circuit Court also found:

29.    In any event, in the present case, the applicant was given additional time to comment but did not provide comments within that additional time. Subsection 359B(4) of the Act provided that:

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.

30.    In the present case, the applicant did not provide a response within that further period. For that reason also, it seems to me that the Tribunal was entitled to proceed in the applicant’s absence.

39    A further basis for the Federal Circuit Court’s decision to dismiss the application for judicial review was futility. The Federal Circuit Court held that even if there had been a denial of procedural fairness, it would be futile to remit the matter to the Tribunal because any nomination for a position that the applicant could obtain was incapable of satisfying the requirements in cl 187.233 of Sch 2 to the Regulations, because there had to be a nomination approved by the Minister under reg 5.19 for the position set out in the visa application. There also had to be identity between the position specified in the visa application and the declaration made by the applicant that the position to which the visa application related was a position nominated under reg 5.19. None of those matters, the Federal Circuit Court found (at [32]-[34]), could be satisfied by the appellant in his visa application because the Minister’s delegate had refused to approve the nominated position and any subsequent approval of a new nominated position would result in some disconformity between the position in the visa application and the nomination, a disconformity that cl 187.233 did not permit.

40    The considerations on judicial review to which I have referred were matters raised by the Minister before the Federal Circuit Court, rather than matters raised by the appellant. At [36] of the Federal Circuit Court reasons, her Honour turned to consider the grounds of review specified by the appellant and determined that none of them were made out. Accordingly, both on the appellant’s own grounds and on the grounds or matters quite properly raised by the Minister before the Federal Circuit Court, the application for judicial review was dismissed.

The appeal grounds

41    On appeal, the appellant secured legal representation. That has resulted in the amendment of the notice of appeal originally filed and the raising of four new grounds of appeal. No objection is taken by the Minister to the raising of those grounds of appeal.

42    Those grounds are:

(1)    Section 359A did not apply to the appellant because it did not apply to the “information” identified in the invitation given by the Tribunal and accordingly the Federal Circuit Court erred in finding that the consequential provisions in s 359C(2) applied to the appellant. Accordingly, the Tribunal denied the appellant procedural fairness by not inviting him to attend a hearing or not inviting him to make further submissions and file further material.

(1)    If ss 359A and 359C(2) did apply to the appellant, the appellant retained an entitlement under s 358 of the Migration Act to give evidence and present arguments relating to the decision under review, and by proceeding to make a decision in the way and at the time it did, the Tribunal denied him an entitlement and therefore denied him procedural fairness in accordance with s 358.

(2)    Again, alternatively, if s 359C(2) applied to the appellant, the Tribunal acted unreasonably in making its decision in the manner and at the time it did without allowing the appellant further time to provide submissions and evidence to the Tribunal, and the Federal Circuit Court should have identified this as a jurisdictional error.

(3)    The Federal Circuit Court’s finding on futility was in error because if the Tribunal had allowed the appellant further time to provide submissions and evidence to it before making its decision, then:

(a)    Harrico Pty Ltd, as the appellant’s nominator, might have put in a fresh nomination for the same position prior to the Tribunal’s decision;

(b)    The appellant might have argued that there had been a defective notification of the nomination refusal on 5 December 2013.

43    It can be seen that these arguments depend on a particular construction of the Regulations and of the notification provisions under the Act. I consider these in more detail below.

Resolution

44    Counsel for the appellant conceded that if the appellant failed to persuade the Court that any relief the Court might grant was not futile, then success on the substantive grounds of appeal would be of no assistance to the appellant. That concession was correctly made.

45    For the reasons I set out below at [81] to [90], in my opinion the grant of relief would be futile. Therefore even if I had been persuaded of one of the substantive grounds of appeal (which I am not), the appeal should be dismissed. Notwithstanding that view, I have considered each of the grounds of appeal on its merits.

Ground 1: was s 359A engaged?

46    The appellant submits s 359A did not apply, and therefore nor did the consequences from a failure by the appellant to respond. The submissions had two bases. First, the Tribunal’s letter contained matters the appellant himself had provided to the Tribunal on his review application, through the delegate’s decision (see [49] below). As such, the “information” fell within the exception in s 359A(4)(b) and s 359A did not apply to it.

47    Secondly, the statement that the Tribunal had not received any application for review of the nomination decision was not “information”. Rather, the appellant submitted it was an “absence of evidence or the Tribunal’s reason for a lack of satisfaction about the criteria”. This, the appellant submitted, could not be “information” within the terms of s 359A.

48    Accordingly, s 359A was not engaged, and the consequences set out in s 359C(2) should not have been visited upon the appellant.

49    The Minister recognised in his submissions, as he had before the Federal Circuit Court, that there is authority for the proposition that, insofar as “information” may be contained in the decision record of a delegate, a visa applicant “gives” that information within the terms of s 359A(4)(b) by attaching the delegate’s decision record to his application for review: Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240 at [74] (Full Court), citing with approval Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241. Those authorities deal with the meaning of the word “gives” in s 359A and its (then) equivalent s 424A.

50    In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 (which concerned the equivalent provision in Part 7 of the Act as it was then structured, in s 424A) at [18], a plurality of the High Court dealt with the scope of the term “information” in these provisions:

Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’.

…does not encompass the tribunal’s subjective appraisals, thought processes or determinations …nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

(Footnote omitted.)

51    SZBYR was subsequently applied by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [20]-[23].

52    In VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 at [24], Finn and Stone JJ also set out the established construction of s 424 and s 424A, including the meaning of “information”, which their Honours described as “knowledge of relevant facts or circumstances communicated to or received by the Tribunal”. This was also approved by the Full Court in Brar at [67].

53    In my opinion, what was conveyed by the Tribunal was wider than the appellant’s submissions suggest. The Tribunal’s letter not only drew the appellant’s attention to the refusal of Harrico’s nomination, but also to the timing of that refusal (5 December 2013), to the absence of any review application being received from the Tribunal, and then the effect or outcome of these matters: namely, that there was no approved nomination by Harrico Pty Ltd for the appellant in its business under the provisions of the RN visa category. These are all “relevant facts and circumstances” received by the Tribunal and known to it, which could, as the Tribunal’s letter set out, have led the Tribunal “to conclude that [the appellant is] not the subject of an approved nomination for employment in the business of Harrico Pty. Ltd. and it would follow that [the appellant does] not meet the requirements of cl 187.233.”

54    Indeed the evidence before the Court indicates, through a “Case Note” made on 4 December 2014, that an officer of the Tribunal engaged in some “checks” on behalf of the Tribunal about this issue. The case note records the refusal of the employer nomination on 5 December 2013. This case note also contains an entry “No review lodged”. This case note, produced approximately two weeks before the s 359A letter was the reason, I infer, that the Tribunal sent the s 359A letter. And properly so.

55    None of this information went to the Tribunal’s reasoning or findings on evidence and other material it had before it. The Tribunal was, appropriately, putting the appellant on notice of the factual basis for the problem he faced about the employer nomination criterion. The absence of a review application from Harrico was relevant because it indicated that the nomination refusal could be treated as final. These are “facts and circumstances” which fall within the bounds of what Jagot J described in Saba Bros at [42] as “rationally capable of being seen as information that would affect the decision under review.”

56    The consequences for an applicant of a failure to comply with a s 359A letter under the statutory scheme can properly be described as drastic, but I see no basis on which it can be said the Tribunal erred in sending a s 359A letter in these circumstances. Even if error could have been shown, there would in any event have been a question of whether it was jurisdictional in nature, and what role the severity of the consequences might play in the characterisation of the error.

Ground 2: the appellant retained an entitlement under s 358

57    On this ground, and notwithstanding the effect of s 360(3), the appellant contended (in the alternative to ground 1) that s 358 of the Act had an independent operation, which required the Tribunal to give him an opportunity to present arguments and evidence before a decision on the review was made, an opportunity he was denied by the course taken by the Tribunal.

58    Section 358 provided:

Documents to be given to the Tribunal

(1)    An applicant for review by the Tribunal may give the Tribunal:

(a)    a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b)    written arguments relating to the issues arising in relation to the decision under review.

(2)    The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.

59    It is correct that the entitlements set out in s 358 continued to be available to the appellant. It is also correct that it is an independent entitlement that remained available to him notwithstanding the “cascading operation” of ss 359C(2), 360(2)(c), 360(3) and 363A: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413 at [27] and [34].

60    The content of the entitlement is to put before the Tribunal any statements or arguments an applicant for review may wish the Tribunal to consider in its review. While there is little doubt that if, during a review, an applicant does put relevant material and arguments before the Tribunal, the Tribunal will ordinarily be obliged to consider them in making its decision on the review (see generally Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [64]-[70]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [46]-[54]), provided it discharges that obligation, the Tribunal will not be constrained by s 358 in completing and finalising its review.

61    The material the appellant identifies for the purposes of this ground of appeal is the 19 December facsimile, the contents of which I have set out at [26] above. That communication was neither a “statement” on matters of fact nor “arguments” concerning the review of the decision to refuse the appellant a RN visa. It came the day after, and expressly acknowledged receipt of, the s 359A letter. The extension of time request contained in the letter could only have been understood by the Tribunal as relating to the rest of the contents of the facsimile, which foreshadowed the withdrawal of the review application and the making of a different kind of visa application by the appellant. If anything, read as a whole, the communication suggested the appellant had little continuing interest in the review and was pursuing another course.

62    In my opinion there was nothing in this communication which required any further consideration by the Tribunal and the absence of any specific reference to this facsimile in its reasons for decision is explicable from the contents of the facsimile itself and the sequence of events I have outlined.

Ground 3: legal unreasonableness

63    This ground is also an alternative to ground 1. The appellant contends in the alternative that in completing its review not very long after the expiry of the extension of time on 23 January, in light of what was said in the appellant’s representative’s fax on 19 December 2014, the Tribunal’s decision was affected by legal unreasonableness.

64    There are now many expositions of what is comprehended by the proposition that an exercise of power, including an exercise of discretionary power, is legally unreasonable: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] (which refers to these authorities). There is no need to repeat what is set out in those authorities.

65    One observation from SZVFW bears emphasis however. At [43], speaking of the nature of an appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth), the Full Court said:

First, to succeed in the appeal the Minister must establish an appealable error on the part of the primary judge, whether that error be of fact or law. It is insufficient simply to invite the Court, in effect, to step into the shoes of the primary judge and determine for itself whether it views the Tribunal’s exercise of the discretion under s 426A as unreasonable in the legal sense.

66    That observation, with respect, is especially important for grounds of appeal involving legal unreasonableness. That ground, and the ground of rationality (or irrationality) are grounds which involve an individual judicial appreciation and assessment of the way in which an administrative decision-maker, or member constituting a tribunal, has gone about her or his reasoning towards a particular outcome. They are matters on which reasonable legal minds may differ: see, for example, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], Crennan and Bell JJ.

67    A conclusion of error in the approach of a primary judge, or the Federal Circuit Court should take this context into account. Before upholding a ground of legal unreasonableness, in my opinion an appellate court would need to be satisfied that a rejection of grounds of irrationality or unreasonableness by a primary judge or the Federal Circuit Court disclosed a misunderstanding of applicable principles, or a clearly erroneous application of those principles. A disagreement between reasonable legal minds at first instance and appellate level is not commensurate with error.

68    In my opinion, the error concerning legal unreasonableness alleged by the appellant on this appeal is not of that kind. This is not an occasion for the Court to be mindful of what was said in SZVFW, because there is no real doubt the Federal Circuit Court was correct to reject this argument.

69    The appellant submitted in writing that the “Tribunal’s conduct” was legally unreasonable. This general submission was followed by submissions that the Tribunal proceeded to make its decision with “undue haste” after the expiration of the time period it had nominated, and that the Tribunal “unreasonably fail[ed]” to “give the Appellant more time to participate in the review”.

70    No particular exercise of power was nominated against which the standard of legal unreasonableness could be applied, although at one point (in relation to ground 2, although as I have explained, the two grounds are connected) the appellant did submit that the Tribunal had the power under s 363(1)(b) of the Act to adjourn a review. It appears that the appellant submits the Tribunal should, at the expiration of the extension of time it had given him (23 January 2015) further adjourned the review, in effect, by granting a further extension of time, and or alternatively should have taken a longer period of time to hand down its decision than the four days it took after 23 January 2015.

71    When the Tribunal granted an extension of time on 9 January 2015, it did so in a manner which was consistent with s 359B(4) of the Act and reg 4.18A(4) of the Migration Regulations.

72    Section 359B(4) provides:

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.

73    The period prescribed by reg 4.18A(4) is 14 days after the day on which a person receives notice of the extension.

74    Although it might be said that the power to grant an extension of time under s 359B(4) is not exhaustive of the Tribunal’s powers to allow a review applicant more time to respond, and although it might also be said that one further way in which the Tribunal could allow more time is to exercise its power under s 363(1)(b) of the Act to “adjourn the review”, on the material, there was no occasion for the Tribunal, acting reasonably, to consider exercising any such power.

75    The circumstances as they presented to the Tribunal were as follows. The Tribunal had, I have found, complied with its obligations under s 359A of the Act and sent the appellant an invitation to comment. It had done this on 18 December 2014. By s 359B(2), read with reg 4.17(4), the period for giving information or comments was to be 14 days from the receipt of the invitation. Given the invitation was sent by email, the period commenced on 18 December 2014, and ended on 2 January 2015. The appellant did not challenge the application of any of these provisions.

76    There is no basis in the evidence to find that the Tribunal was unaware of the 19 December 2014 facsimile from the appellant’s representatives. There is an entry on the bottom of the page recording its receipt, and the letter was present on the Tribunal’s file. The Tribunal was not required or obliged to refer to this facsimile in its reasons, because the obligation in s 368 of the Act is specifically related to the Tribunal’s conclusions on the review, and does not extend to referring to each and every communication between an applicant and the Tribunal. See, similarly, in relation to s 430 of the Act, SZHSQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1295; 155 FCR 159 at [60] (Rares J).

77    It is unsurprising that in its reasons the Tribunal refers to the follow up communication from the appellant’s representatives on 2 January 2015, because chronologically it came after the 19 December facsimile. It should be noted that in the 2 January email the appellant’s representative states (in relation to the s 359A letter):

I will ned [sic] to respond when I return

78    The appellant’s representative had stated his office was “back” on 7 January 2015. An ordinary reading of this email would suggest the appellant’s representative intended to respond some time after 7 January 2015. The Tribunal’s response was consistent with an understanding of that kind, by granting an extension of time until 23 January 2015, 16 days after the appellant’s representative would be “back”.

79    Both the original period of time given by the Tribunal and the extension of time complied with the terms of the Act and the Regulations, and the appellant did not submit otherwise. His complaint appeared to be that the Tribunal should have waited until the date unilaterally nominated by his representative – namely 15 February 2015. However that was the date the appellant’s representative foreshadowed withdrawing the review application. That date appears to have been nominated by reference to the date the representative informed the Tribunal the new visa sponsorship application would be lodged: namely, 31 January 2015. The 2 January email, in its timing and content, was more apparently referable to the Tribunal’s s 359A letter and the (then) present intention of the appellant’s representatives concerning a response. There was, in my opinion, a justification for the Tribunal’s response to the 2 January 2015 email by way of granting an extension of time, and obviously doing so in accordance with the periods prescribed was entirely reasonable.

80    Nor can it be said that the Tribunal’s conduct in proceeding to finalise its review shortly after 23 January 2015 was legally unreasonable, in the sense of being without any intelligible justification. Quite the contrary: the Tribunal’s conduct was entirely intelligible. The extension of time letter sent by the Tribunal on 9 January 2015 expressly warned the appellant and his representative that if no comments were received by the extended date of 23 January “the Tribunal may make a decision on the review without taking any further action to obtain your views on the information”. Section 359C(2) expressly permitted it to do just that, and there was nothing in the facts and circumstances of this review which could have put the Tribunal on notice that the only reasonable course to take would have been to wait for a longer (unspecified) period of time before finalising the review.

Ground 4: futility

81    Strictly, it is unnecessary to determine the question of futility because I have concluded that none of the appellant’s grounds of appeal should succeed. However, considerable time was spent on the ground in argument and on the appeal, counsel for the appellant developed this ground first. Accordingly, I propose to determine it.

82    Although there were two bases for this ground identified in the notice of appeal, only one was pressed. The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application. Even if error had been established, remitter to the Tribunal would be futile.

83    The appellant’s contention depended on a particular construction of the phrase “the nomination” in cl 187.233(3) of the Regulations which, effectively, the appellant contended, was not limited to the original nomination which accompanied the visa application.

84    To recall, cl 187.233 relevantly provides:

(1)    The position to which the application relates is the position:

(a)    nominated in an application for approval that seeks to meet the requirements of:

(i)    subparagraph 5.19(4)(h) ii); or

…

(b)    in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

…

(3)    The Minister has approved the nomination.

…

85    The only limit, the appellant contended, was that “the nomination” would have to be for the same position and the same employer. Otherwise, there was no limit on how many times an employer could nominate a position and employee during the currency of the visa application. Inherent in the appellant’s argument appeared to be the contention that circumstances could change so that a formerly unsuccessful nomination for the same position and the same employee might later be approved by the Minister. Since reg 5.19 mandates approval in certain circumstances, it is not inconceivable that a previously unsuccessful nomination could, with various changes of circumstances, eventually be one which the Minister was required to approve. However that hypothesis does not assist the appellant in the construction of cl 187.233.

86    The appellant’s argument relates to the construction of the words “the nomination” in para (3) of cl 187.233, but does not grapple with the terms of sub-paras (1)(a) and (b).

87    In his written submissions, the Minister submits (at [37]):

Clause 187.233(1) of Schedule 2 imposes a single requirement, albeit one that is expressed in two paragraphs for ease of reference. Thus, the provision could have been expressed, and should be understood, as follows:

(1)    The position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(ii) [sic (4)(h)(ii)] … in relation to which the declaration mentioned in paragraph 1114C(3)(d) was made in the application for the grant of the visa.

88    That submission should be accepted. In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.

89    The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.

90    The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

Conclusion

91    The appeal must be dismissed. There is no basis for anything other than the usual order as to costs.

92    The Court’s practice now is to award costs by way of a lump sum wherever that is appropriate: see [3.5] and [4.1] of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016. I consider it is appropriate for a lump sum costs order to be made in this case. There will be directions in accordance with the Practice Note to facilitate the making of a lump sum costs order.

Associate:

Dated:    14 July 2017