FEDERAL COURT OF AUSTRALIA

Babar v Minister for Immigration and Border Protection [2017] FCA 655

ORDERS

THE COURT ORDERS THAT:

1.    The appellants’ appeal is dismissed.

2.    The appellants are to pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    The first appellant, Mr Babar, is a Pakistani national. On 17 May 2013, Mr Babar, through a migration agent, lodged a subclass 457 temporary work (skilled) visa (scl 457 visa) application for himself and his spouse, who is the second appellant in this matter. The migration agent nominated in the application form was Mr Cedric Ng of 80 Mount Street, North Sydney, New South Wales.

2    Mr Babar was at the date of the lodgement of the scl 457 visa application form resident in a suburb of Perth, Western Australia.

3    Mr Babar’s sponsoring employer was named in the form as CWK M & D Pty Ltd (CWK) at an address in Hobart, Tasmania.

4    Under the heading of “Position details” there was included the following as “Educational qualifications”: “diploma OF dental technology - Certificate IV in Financial services - Certificate IV Tourism Management”. The form also stated that Mr Babar had worked as a trainee dental technician for 22 months and a dental technician for two months.

5    At the relevant time, cl 457.223 of Sch 2 of the Migration Regulations 1994 (Cth) set out, inter alia, the following requirements with which an applicant for a scl 457 visa had to comply at the time of the decision:

(1)    The applicant meets the requirements of subclause (2) or (4).

…

Standard business sponsorship

(4)    The applicant meets the requirements of this subclause if:

(a)    each of the following applies:

(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75;

…

6    On 25 September 2013, a delegate of the first respondent in the Department of Immigration and Border Protection (the department), refused the nomination application lodged by Mr Babar’s prospective employer, CWK, in respect of Mr Babar’s nominated occupation as a dental technician.

7    By letter dated 31 October 2013, an officer in the department invited Mr Babar to comment within 28 days on information that his prospective employer, CWK, did not have an approved nomination for him; and that, accordingly, his visa application was unlikely to be successful.

8    There was no response to this letter.

9    On 4 December 2013, a delegate of the first respondent refused Mr Babar’s visa application on the basis that Mr Babar’s application did not satisfy the criteria in cl 457.223(4)(a)(i) of Sch 2 of the Migration Regulations because the nomination made by CWK in respect of Mr Babar’s nominated occupation, had not been approved by a delegate of the first respondent under s 140GB of the Migration Act 1958 (Cth).

the tribunal

10    On 20 December 2013, the first and second appellants, through their migration agent, applied to the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) for a review of the delegate’s decision. Later, the third appellant, being the infant son of the first and second appellants, was added to the review application.

11    Relevantly, at the time of the application to the Tribunal, s 338(2)(d) of the Migration Act, read as follows:

(2)    A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

…

(d)    where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i)    the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii)    an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

(Original emphasis.)

12    On 19 February 2014, CWK’s sponsorship agreement was cancelled.

13    By a letter dated 2 February 2015, an officer of the Tribunal advised the appellants that, in light of the decision in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (Lee), the officer was of the view that the appellants’ review application to the Tribunal was “not valid” because it appeared that, at the relevant time, there was no nomination of an occupation in respect of Mr Babar that had been approved under s 140GB of the Migration Act, which was in force. Nor was there any application for review of the decision refusing the nomination, pending. The letter invited the appellants to respond by 16 February 2015.

14    Mr Babar responded on 17 February 2015 by seeking an extension of time to seek legal advice as to the application of Lee to the appellants’ case, and to allow for the completion of Mr Babar’s prospective employer’s complaint to the “Ombudsmen”. An extension of time was granted by the Tribunal until 3 March 2015.

15    By an email of 4 March 2015, Mr Babar applied for a further extension of seven working days. This application was refused by the Tribunal.

16    On 16 March 2015, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision on the grounds that the decision to refuse the appellants’ scl 457 visa application was not an MRT-reviewable decision. This was because the visa application made by Mr Babar fell within the ambit of s 338(2)(d) of the Migration Act; and neither of the conditions identified in subparas (i) and (ii) of that subsection applied to the appellants’ application for review to the Tribunal.

the federal circuit court

17    On 11 April 2015, the appellants brought an application for judicial review of the Tribunal’s decision to the Federal Circuit Court of Australia (the FCCA).

18    The appellants relied upon 12 grounds of review.

19    Ground 9 of the grounds of review alleged that the Tribunal had failed to determine the appellants’ application for review according to law in taking a view of the Migration Act and the Migration Regulations that was unnecessarily limited and constricted. It was under the rubric of this ground of review that the primary judge considered whether the Tribunal had erred in finding that it did not have jurisdiction to review the delegate’s decision to refuse the appellants’ visa application.

20    The primary judge dismissed this ground of review. The primary judge found that the Tribunal had correctly determined that the delegate’s decision did not meet the definition of an MRT-reviewable decision within the scope of s 338(2)(d) of the Migration Act.

21    This was because as at the date of the application for review to the Tribunal, CWK’s nomination of the occupation in relation to Mr Babar had been refused by a delegate of the first respondent; and no review of that decision had subsequently been sought by CWK. Further, there was nothing to indicate that Mr Babar was the subject of a subsequent sponsorship nomination.

22    The primary judge stated:

52.    The application to the Tribunal for review of the delegate’s decision did not come within s 338(2)(d)(i) or (ii) of the Migration Act because:

a)    the Department’s records indicate that CWK’s nomination in respect of Mr Babar was refused on 25 September 2013: CB 109 and 122, prior to the application to the Tribunal being lodged on 20 December 2013. As noted by the Tribunal there is nothing to indicate that CWK sought review of the Nomination Refusal Decision: CB 139 at [7];

b)    there is nothing to indicate that Mr Babar was the subject of a subsequent nomination application at the time of the applicants’ application to the Tribunal for review of the delegate’s decision;

c)    Mr Babar was therefore not “identified in a nomination under s 140GB” of the Migration Act, at the time of the application to the Tribunal for review of the delegate’s decision, and on this basis the applicants could not meet the requirement in s 338(2)(d)(i) of the Migration Act that Mr Babar be “sponsored” at the relevant time;

d)    there is nothing to indicate that, at the time of the application for review of the delegate’s decision, an application for a review of a decision not to approve CWK had been made and review of that decision was pending such that s 338(2)(d)(ii) of the Migration Act was satisfied;

…

23    The primary judge held that the Tribunal was correct to dismiss the appellants’ review application on the basis referred to above.

24    The primary judge also considered and rejected the appellants’ remaining 11 grounds of review which the primary judge grouped into three different complaints, namely, denial of procedural fairness, denial of the opportunity to seek legal advice and bias.

25    The primary judge went on to find that even if the appellants could prove jurisdictional error, it would be futile to remit the matter to the Tribunal. This was because, observed the primary judge, the Tribunal would again dismiss the review application on the basis that at the time of making the application to the Tribunal neither of the conditions in s 338(2)(d)(i) or (ii) of the Migration Act had been fulfilled, and that, accordingly, the Tribunal had no jurisdiction to review the delegate’s decision. The primary judge referred to X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 at [45] in support of his finding.

26    At the hearing before the primary judge, Mr Babar also complained about the conduct of his migration agent, Mr Edward Kang. It appears that Mr Ng, who was formally named in the appellants’ visa application as their migration agent, was an associate of Mr Kang. Mr Babar made these complaints in support of a contention that Mr Kang should be brought before the FCCA to explain his actions, and that there should be an adjournment until that occurred. Mr Babar made allegations from the bar table to the effect that Mr Kang had induced Mr Babar to pay him a fee of $20,000 on the basis that Mr Kang would look after all the legal work in relation to Mr Babar’s scl 457 visa application. The primary judge observed that without taking into account what was said by Mr Babar from the bar table, there was sufficient before the court to infer that Mr Kang’s conduct was of concern and that his conduct should, on that basis, be referred to the appropriate regulatory authorities.

27    The material before the primary judge regarding Mr Kang’s conduct included reasons for judgment in cases involving Mr Kang in the FCCA, this Court and the New South Wales Supreme Court. Among the facts which the primary judge inferred from that material was that CWK, Mr Babar’s nominating sponsor, was a company of which Mr Kang was a director, and which operated a migration business.

28    Although there had been no ground of review founded on a complaint of fraud on the Tribunal, the primary judge referred to that ground as a possible ground of review that might have been available to be pleaded by the appellants. However, the primary judge observed that even if the conduct of the appellants’ migration agent constituted fraud on the Tribunal within the ambit of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, any such ground of review would not affect the outcome of the appellants’ judicial review application. This was because, said the primary judge, “fraud or not”, Mr Babar did not have a nominating sponsor, nor did he have a nominated occupation, for the purposes of complying with the requirements for the grant of a scl 457 visa. Therefore, said the primary judge, the grant of any prerogative relief would be futile.

the appeal

29    Before this Court, the appellants, in their notice of appeal, dated 30 June 2016, raised 14 grounds of appeal.

30    The grounds of appeal are as follows:

1.    Federal Circuit Court has dismissed, on a first hearing day, my application summarily without proper consideration whilst it is obvious that MRT has made a mistake and improperly considered my case in many different aspects. I have been deprived of being considered in full at full hearing, or at least show cause hearing at Federal Circuit Court.

2.    I have been declined by Migration Review Tribunal (hereinafter called “MRT”) and Federal Circuit Court (hereinafter called “FCC”), which I am of the view that decision is erroneous and insufficient FCC, MRT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness.

3.    FCC and MRT has failed to serve the documents in proper manner.

4.    FCC, MRT and DIPB have failed to do correspondences correctly and sufficiently.

5.    MRT denied the applicant’s right to representation to assist the applicant in presenting the case properly and adequately.

6.    The FCC and MRT failed to take into consideration some important procedural errors made by the department in assessing the applicant application.

7.    In this respect, FCC and the MRT should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the MRT.

8.    FCC AND the MRT denied the applicant’s procedural fairness and natural justice in not giving applicant the opportunity to properly consider applicant’s legal position, given applicant’s legal position, given applicant’s limitation in the legal system.

9.    FCC AND MRT failed to determine the applicant’s application for review according to the law, in taking a view of the Migration Act and Regulations that was unnecessarily limited and constricted and which fitted the MRT member’s personal view rather than a comprehensive view of the relevant law.

10.    FCC AND The MRT Member therefore regarded the Applicant’s as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness.

11.    FCC AND The MRT Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

12.    Had FCC AND MRT given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review.

13.    I believe that I would be eligible to be granted for previous application.

14.    I respectfully submit that FCC and MRT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest case.

31    Grounds 2 to 14 largely reflect the grounds of review which were raised before the FCCA, albeit, that the grounds of appeal were now directed towards the conduct of the FCCA as well as the Tribunal. Ground 1 is, however, a ground of appeal which is directed specifically to the conduct of the hearing before the FCCA.

The Tribunal’s jurisdiction to review the delegate’s decision

32    I will deal first with the ground of appeal, namely, ground 9, which I have construed as challenging the primary judge’s finding that the Tribunal did not have jurisdiction to review the delegate’s decision.

33    In my view, the primary judge did not, for the reasons which he gave (see [22] above), err in his analysis of the jurisdictional limitations of s 338(2)(d) of the Migration Act and, accordingly, did not err in finding that the Tribunal was correct to reject the appellants’ review application for want of jurisdiction.

34    In the case of Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365, the Full Court of this Court undertook a detailed analysis of the ambit of the jurisdictional limitations contained in s 338(2)(d) of the Migration Act and its relationship to the requirements in cl 457.223 of Sch 2 of the Migration Regulations. The primary judge’s reasons for judgment gives effect to the construction adopted by the Full Court of those provisions.

Summary dismissal

35    Ground 1 of the grounds of appeal alleges that the primary judge dismissed the appellants’ judicial review application on the first hearing day without giving them a “full hearing”. This contention is factually incorrect and is without any merit.

36    The primary judge did not dismiss the appellants’ case summarily on “a first hearing day”, nor indeed, at a show cause hearing. To the contrary, the primary judge gave the appellants two adjournments to seek legal advice and assistance in the presentation of their case. The primary judge did not grant the appellants a third adjournment on 17 June 2016 and proceeded to hear the appellants’ judicial review application at a “full hearing”.

37    As mentioned, the basis for that application for an adjournment arose from Mr Babar’s complaint about Mr Kang’s conduct, and his contention that Mr Kang should be brought before the FCCA to explain his conduct.

38    The primary judge declined to adjourn the proceeding on the basis that Mr Babar had not pleaded any cause of action against Mr Kang, nor was there any ground of review based on this complaint. Further, the primary judge observed that Mr Babar had not adduced any evidence as to Mr Kang’s alleged misconduct.

39    The primary judge went on to say that whatever may have been the reason that Mr Babar did not have a nominating sponsor or a nominated occupation, the fact remained that those circumstances meant he could not satisfy the criteria for the grant of a scl 457 visa application, and so the application for judicial review before the FCCA was bound to fail. The primary judge, accordingly, declined to adjourn the hearing.

40    In my view, it was open to the primary judge in the proper exercise of his discretion to refuse the adjournment for the reasons which he gave.

41    Accordingly, this ground of appeal is dismissed.

42    The remaining grounds of appeal may be categorised as comprising allegations that the primary judge erred in failing to find:

(a)    the appellants had not been accorded procedural fairness by the Tribunal;

(b)    the Tribunal had denied the appellants a reasonable opportunity to obtain legal advice and representation; and

(c)    the Tribunal was biased.

43    For the reasons which follow, the appellants’ contentions are rejected.

Procedural fairness

44    In my view, the primary judge did not err in dismissing the appellants’ grounds of review based on contentions of a denial of procedural fairness.

45    The primary judge found that the Tribunal had corresponded with Mr Babar and that Mr Babar had responded to the Tribunal prior to the Tribunal’s decision and that it had not made any procedural errors as had been alleged by the appellants.

46    In my view, Mr Babar had an adequate opportunity to make submissions to the Tribunal, but did not.

47    Further, insofar as it was contended that the appellants were denied procedural fairness before the FCCA, those contentions are rejected for the reasons set out at [36]-[40] above.

48    Accordingly, these grounds of appeal are dismissed.

Failure to have legal advice and representation before the Tribunal

49    The primary judge held that the Tribunal had not fallen into jurisdictional error in refusing to extend the time within which the appellants could comment on its proposition that the Tribunal did not have jurisdiction to review the delegate’s decision to refuse their scl 457 visa application.

50    In my view, the primary judge did not err in coming to that view. As the primary judge observed, the Tribunal had already granted one extension of time and the appellants had more than adequate time to obtain legal advice since the refusal of the visa application by the delegate; and, also, the appellants had not provided the Tribunal with any evidence that they were taking “active steps” to obtain legal advice.

51    Insofar as it is contended that the primary judge erred in refusing a third adjournment, I have already rejected that contention. As mentioned, the primary judge permitted two previous adjournments in order to give the appellants time to seek legal advice and representation.

52    Further, it is pertinent to observe, as did the primary judge by reference to SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3]-[4] and SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24], that there is no right to legal advice and representation when seeking a review before the Tribunal or a judicial review before the FCCA.

53    Accordingly, these grounds of appeal are dismissed.

Bias

54    The primary judge rejected the grounds of review based on bias because the appellants have not provided any evidence that suggested the Tribunal was biased, whether apparently or actually. The primary judge did not err in so finding.

55    Accordingly, these grounds of appeal are dismissed.

Fraud on the Tribunal

56    At the hearing before this Court, Mr Babar made oral submissions which complained about the conduct of the appellants’ migration agent, Mr Kang. Mr Babar filed an affidavit, dated 5 October 2016, and sought to read the affidavit. I said that I would provisionally admit the affidavit into evidence. This was for the purpose of considering whether, on the basis of such of the evidence as was admissible, I might permit the appellants to amend the grounds of appeal to plead a ground of appeal based on an allegation of fraud on the Tribunal.

57    In his affidavit, Mr Babar said that he had engaged Mr Kang as his migration agent and Mr Kang had represented to him that he would procure the grant of a scl 457 visa for Mr Babar. Mr Kang had apparently represented that he controlled companies, which included CWK, which would permit him to sponsor Mr Babar as an applicant for a scl 457 visa. Mr Kang had allegedly represented that he would provide Mr Babar with a valid nominating sponsor. Mr Babar complained that Mr Kang had not advised him that CWK’s nomination in respect of Mr Babar’s occupation as a dental technician had been refused. Further, said Mr Babar, he had not been advised that CWK had not sought to review the decision to refuse CWK’s nomination in respect of Mr Babar.

58    The first respondent opposed any potential amendment to the grounds of appeal to permit Mr Babar to raise fraud on the Tribunal as a ground of appeal. This was because, said the first respondent, even if the FCCA, on a remittal, was to find on the evidence that there was fraud on the Tribunal, for the reasons identified by the primary judge, the appellants’ review application would, in any event, be dismissed on the basis of futility.

59    I accept the first respondent’s contention. There would be no utility in permitting Mr Babar to amend the grounds of appeal to raise a ground of appeal in respect of a ground of review based on fraud on the Tribunal which, although not formally raised as a ground of review, was considered as a potential ground of review by the primary judge. This is because, as the primary judge observed, there would be no utility in granting prerogative relief even if the ground of review was, on remittal, made out on the facts.

60    In his affidavit, Mr Babar also contended that the decision of the delegate should be set aside on the basis of the conduct of Mr Kang.

61    I have given some consideration as to whether there would be some utility in permitting Mr Babar to amend his notice of appeal to include a ground of appeal founded on a potential claim before the FCCA, to set aside the delegate’s decision. However, I have, on the basis of the Full Court decision in Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243 (Prodduturi) concluded that there would be no utility in that approach either.

62    In Prodduturi, a similar proposed course of conduct was considered and rejected by the Full Court. In that case, the appellant sought to amend his notice of appeal to claim, as relief, the setting aside of the decision of the delegate to refuse the appellant in that case, a subclass 485 skilled (provisional) visa. At [32], Perram and Perry JJ observed:

There are four obstacles for the appellant in taking this course. First, this was not how the case was run at first instance. Second, the delegate who made the decision is a necessary party to any application to set aside her decision. Third, the Federal Circuit Court had no jurisdiction to entertain an application to set aside the delegate’s decision. Fourth, this court has no such jurisdiction on appeal.

63    In my view, the same obstacles apply to this case.

64    Accordingly, the provisional admission of Mr Babar’s affidavit evidence is revoked.

65    The appellants’ appeal is dismissed.

Associate:

Dated:    12 June 2017