FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Home Affairs [2019] FCA 2031

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.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant, a citizen of Vietnam, arrived in Australia as the holder of a student visa in 2013. He subsequently applied for a Temporary Work (Skilled) (Subclass 457) Visa (visa), but his application was refused by a delegate of the Minister for Immigration and Border Protection.

2    In July 2017, the Administrative Appeals Tribunal (Tribunal) held that it had no jurisdiction to review the delegate’s decision. The basis for this conclusion, in accordance with s 338 of the Migration Act 1958 (Cth) (Act), was that, at the time of his application for review, the appellant was not sponsored by an approved sponsor and no separate application for review of a decision not to approve the sponsor was pending.

3    The appellant now appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of the Tribunal’s decision. The appellant’s grounds of appeal, which were not raised before the Circuit Court, allege that the Tribunal erred by not adjourning its proceeding until the appellant could lodge a fresh nomination in respect of his new employer.

4    The appellant did not provide an adequate explanation for not raising these grounds before the Circuit Court. Regardless, the grounds are without merit. In circumstances where the Tribunal correctly held that it had no jurisdiction to review the delegate’s decision, there was no basis for the Tribunal to grant the adjournment sought by the appellant.

5    For these reasons, as explained in greater detail below, leave to advance the new grounds is refused. The appeal is accordingly dismissed.

Background

6    The background to the appellant’s application to the Tribunal was summarised in the reasons of the Circuit Court (Nguyen v Minister for Home Affairs & Anor [2019] FCCA 1281 (FCCA Reasons)) as follows:

2.     The applicant, a Vietnamese citizen aged 29 years, first arrived in Australia on 9 May 2013 as the holder of a Student visa.

3.     On 21 October 2016, the applicant applied for a Temporary Work visa. In his application, the applicant listed Mega Sheetmetal Pty Ltd (sponsor) as sponsoring employer and supplied a copy of an executed Employment Agreement for the position of a 1st Class Welder. The agreement was made dependent upon the applicant obtaining the appropriate visa.

4.     On 4 May 2017, the Department wrote to the applicant’s lawyers and migration agent to notify the applicant that his sponsor did not have an approved nomination, and invited him to withdraw his application or otherwise to state his intentions in relation to.

5.     By letter dated 26 May 2017, the applicant’s migration agent informed the Department that he no longer acted on behalf of the applicant.

6.     On 5 June 2017, the Minister’s delegate refused the visa application on the basis that the applicant had not met the criteria prescribed by cl 457.223(4)(a) of Sch 2 (cl 457.223) of the Migration Regulations 1994 (Cth) (Regulations) by reason that the prospective sponsoring employer did not have an approved nomination in place for the applicant.

Relevant legislation

7    Before turning to the Tribunal’s decision, and the Circuit Court’s judicial review of that decision, it is convenient to briefly introduce the relevant legislation.

Eligibility for visa

8    The visa that the appellant applied for on 21 October 2016 was a “Temporary Work (Skilled) (Subclass 457) Visa”. At the time of the decision of the delegate and Tribunal, eligibility criteria for that form of visa were specified in cl 457 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). As noted at [6] of the FCCA Reasons, as extracted above, the delegate held that the appellant did not meet the criteria specified in cl 457.223(4)(a).

9    Pursuant to that provision, and relevantly for current purposes, the appellant would be eligible for the visa if, broadly, his occupation was the subject of a nomination approved by the Minister under s 140GB of the Act by a person who was a “standard business sponsor” approved by the Minister under s 140E of the Act. These provisions are mechanical in nature and unnecessary to outline further. For more detailed consideration of the legislative framework, see Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; 237 FCR 365 (Ahmad) at [27]-[56] per Katzmann, Robertson and Griffiths JJ and Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81; 251 FCR 93 (Dyankov) at [13]-[22] per Logan, Griffiths and Moshinsky JJ.

Tribunal’s jurisdiction to review refusal of visa

10    The Tribunal’s jurisdiction is defined by statute. Relevantly for current purposes, the Tribunal is empowered by Pt 5 of the Act to review certain decisions made under the Act, which are defined by s 338 of the Act as “Part 5-reviewable decisions”.

11    Section 338 of the Act relevantly provides as follows:

  (1)     A decision is a Part 5-Reviewable decision unless this section so provides … . . .

(2)     A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

(a) . . . ; and

(b) . . . ; and

(c) . . . :

(i) . . . ; or

(ii) . . . ; and

(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 grant the visa is made; or

(ii)     an application for review of a decision not to grant 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.

…

(9)     A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.

12    The visa sought by appellant is prescribed for the purposes of s 338(2)(d) of the Act: reg 4.02(1A)(k) of the Regulations.

13    It is also convenient to note that both a decision to refuse an application for approval as a sponsor under s 140E of the Act and a decision to refuse to approve a nomination under s 140GB of the Act are prescribed for the purposes of s 338(9): regs 4.02(4)(a) and (d) of the Regulations. Both decisions are therefore “Part 5-reviewable decisions”.

Tribunal’s decision

14    On 19 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision. In his application, the applicant listed Australian Migration Services as his new registered migration agent.

15    On 23 June 2017, the Tribunal invited the applicant’s migration agent to comment on the validity of the application for review. The Tribunal noted that:

(a)    at the time his application was lodged, the applicant was not identified in a nomination under s 140GB of the Act that was approved or pending; and

(b)    there was no pending application for review before the Tribunal in respect of a decision not to approve the sponsor under s 140E of the Act, or of a decision not to approve the nomination under s 140GB of the Act.

16    Following lodgement of the application for review, the applicant’s migration agent, by way of an email transmitted on 7 July 2017, provided a response to the Tribunal in which she argued that the applicant had another approved sponsor when he lodged his application but which had not been listed in the application form.

17    On 14 July 2017, the Tribunal provided written reasons determining that it had no jurisdiction to determine the appellant’s application (AAT Reasons). The Tribunal explained its conclusion as follows:

16.     … subparagraph 338(2)(d)(i) requires the applicant to be identified in a nomination ‘by an approved sponsor’. ‘Approved sponsor’ is defined in subsection 5(1) of the Act as a person who ‘has been approved’ under section 140E. The provision does not appear to contemplate a pending application for approval as a sponsor under section 140E, let alone the situation where a proposed employer’s approval as a standard business sponsor has expired and no new application for approval has been lodged with the Department.

17.     Importantly, in [Ahmad] the Full Federal Court held that the expression ‘sponsored by an approved sponsor’ in subparagraph 338(2)(d)(i) included both an “approved sponsor” under section 140E and also being identified in a nomination under section 140GB.

18.     Accordingly, in this case there is little in the information before the Tribunal to indicate that    the applicant has been identified in a nomination by an approved sponsor when he lodged his application for review on 19 June 2017. Indeed, in her submission to the Tribunal, the representative specifically stated that the applicant was not identified in a nomination.

19.     As a result, the Tribunal finds that the current application for review does not come within the terms of subparagraph 338(2)(d)(i).

20.     In addition, and for the purposes of subparagraph 338(2)(d)(ii), there is no record before the Tribunal of any application for review of either a decision to refuse an application for approval as a standard business sponsor, or the decision (dated 5 June 2017) to refuse business nomination application made by Mega Sheetmetal Pty Ltd, when the applicant lodged his application for review on 19 June 2017. As a result, the Tribunal finds that the current application for review also does not come within the terms of subparagraph 338(2)(d)(ii).

21.     Accordingly, the Tribunal finds that the decision in respect of which the applicant has applied for review is not reviewable in the circumstances of this case. This is because, at the time the application for review was lodged on 19 June 2017, the applicant was not identified in a nomination under section 140GB of the Act by an approved sponsor. In addition, at the time the application for review was lodged on 19 June 2017 there was also no pending application for review before the Tribunal of either a decision not to approve the sponsor under section 140E, or a decision not to approve the nomination under section 140GB.

22.     Therefore, the Tribunal is satisfied that the delegate’s decision in respect of the applicant’s application for a subclass 457 view is not a Part 5-reviewable decision under any of the other subparagraphs of section 338 and subregulation 4.02(4).

23.     The Tribunal has considered the submissions put forward by the applicant’s representative and his proposed employer in terms of the adverse impact this finding will have upon them. However, the Tribunal has no power to alter the operation of the relevant legislation in this case, regardless of the impact this may have upon the applicant and his proposed employer.

24.     Accordingly, as the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

(Citations omitted.)

Federal Circuit Court’s decision

18    The appellant filed an application for judicial review of the Tribunal’s decision with the Circuit Court on 11 August 2017. That application raised two associated grounds of review, being that the Tribunal:

(1)    took into account irrelevant considerations and failed to consider relevant considerations in considering whether s 338(2)(d)(ii) of the Act was met; and

(2)    erred at law in determining it did not have jurisdiction to review the appellant’s application (in particular by failing to properly apply the reasoning of the Full Court in Ahmad and Dyankov).

19    The appellant, assisted by a Vietnamese interpreter, appeared before the Circuit Court on 14 May 2019. At the conclusion of the hearing, the primary judge dismissed the application for judicial review. The FCCA Reasons were delivered on 16 May 2019: Nguyen v Minister for Home Affairs & Anor [2019] FCCA 1281.

20    The primary judge noted that the Tribunal’s obligation to review the delegate’s decision depended on whether that decision was a “Part 5-reviewable decision”. The primary judge observed that, for the delegate’s decision to be a “Part 5-reviewable decision”, one of sub-paragraphs (i) or (ii) of s 338(2)(d) of the Act needed to be satisfied.

21    The primary judge found that the Tribunal considered each of these matters, and accordingly no jurisdictional error was disclosed. The Circuit Court explained as follows:

38.    … when the application for a merits review by the Tribunal was lodged (i.e. 19 June 2017), the applicant had no sponsorship by an approved sponsor. Nor was there pending any application for the review of a refusal of such sponsor. It was not to the point that the applicant had nominated another sponsor after the date on which the application for merits review of the delegate’s decision had been lodged with the Tribunal. In the circumstances, the Tribunal had no jurisdiction.

…

40.     Notwithstanding the Tribunal’s finding that it did not have jurisdiction did not involve the exercise of a discretion, the relevant matters that the Tribunal needed to consider in determining whether:

a)     s 338(2)(d)(i) applied, was whether, at the time the application for review was made the applicant was sponsored by an approved sponsor (i.e., a standard business sponsor approved under s 140E);

b)     s 338(2)(d)(ii) applied, was whether, at the time the application for review was made there was a pending review application relating to a decision not to approve:

i)     the sponsor as a standard business sponsor under s 140E; or

ii)     the nomination under s 140GB.

41.     As is apparent from the [AAT Reasons] at [4], [16] and [20], the Tribunal took each of those matters into account. It was not required to take any other matters into account. No jurisdictional error is disclosed by this ground.

(Citations omitted.)

Appeal to this Court

22    The appellant appealed from the decision of the Circuit Court on 4 June 2019. The appellant’s notice of appeal raises two grounds of appeal. The appellant requires leave to advance these grounds as they were not raised before the Circuit Court.

23    Rather than directly impugn the Tribunal’s conclusion that it did not have jurisdiction, the new grounds of appeal contend that the Tribunal erred in failing to adjourn its proceeding until the appellant was able to be nominated by a new employer. The new grounds are as follows:

1.    The learned Judge failed to take account of relevant considerations

Particulars

a)    The learned judge failed to have regard to the High Court decision in Lam v Minister for Immigration and Border Protection [2019] HCA 43 (12 March 2019) which found that a decision maker’s failure to wait before making a decision, presents as to arbitrary so as to be unreasonable.

   b)    The High Court in this case stated the following:

“For all that appears from the Decision Record (and there is no other evidence to the contrary) the delegate entirely failed to engage with the possibility of delaying her 360 decision until the likely completion of the TRA review within the next 30 days. So to approach the matter, reflects a degree of insouciance which surely cannot be regarded as an acceptable discharge of the statutorily implicit requirements of the decision-making function. To adopt and adapt the language of French CJ in Li, it bespeaks a degree of arbitrariness which 365 renders it legally unreasonable.”

c)    The Appellant informed the Tribunal that he had located a new employer who was willing to nominate him in the occupation of welder and once a nomination was lodged this could be linked to his 457 visa application which was before the Tribunal.

d)    The Appellant asked the Tribunal to not make any decision and to wait until a new nomination had been lodged by his new employer. Despite this request, the Tribunal proceeded to make a decision knowing full well that a new employer was prepared to nominate the Appellant in his chosen occupation (welder) and once lodge, the new nomination could be linked to the applicants 457 visa application.

2.    The learned Judge failed to find that the Tribunal acted unreasonably and not according to law

Particulars

a)    The learned judge failed to find that it was not open to a reasonable decision maker (the Tribunal) to act in that manner and accordingly, the Tribunal in failing to adjourn that matter, acted with legal unreasonableness in adopting the course that it did because the applicant had secured a new employer who was prepared to nominate him for the visa and there was a good chance that the nomination would be approved and therefore, the visa (the 457 visa) itself would also be approved.

24    The appeal was heard on 8 November 2019. The appellant appeared in person with the aid of an interpreter. The Minister was represented by Ms Nyabally, a solicitor from the Australian Government Solicitor.

25    I asked the appellant various questions about the grounds set out in his notice of appeal. In summary, the appellant submitted that:

(a)    the Circuit Court failed to take into consideration the fact that the appellant had applied for a nomination from a new company; and

(b)    the Circuit Court erred by not granting an adjournment so that the appellant could have time to obtain a nomination form from an approved sponsor.

26    The appellant also expressed that he had worked hard for his old employer and that he possessed enough qualifications to be sponsored by an employer. I have no reason to doubt this, although the extent of my task upon judicial review is to assess the lawfulness of the Tribunal’s actions, not whether the appellant deserved to be granted the visa.

Relevant principles – Leave to raise new grounds on appeal

27    The principles governing the exercise of discretion to grant leave to raise a new ground on appeal were explained by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48]:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

28    These principles have been adopted and applied in many subsequent decisions, including recently in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [57] per Rangiah, Perry and Bromwich JJ.

Merits of grounds of appeal

29    The appellant’s two grounds of appeal may be addressed collectively. Both grounds alleged that the Tribunal erred by failing to adjourn the matter in order for the appellant to be nominated by a new employer.

30    The appellant first contended that the primary judge failed to consider the decision of Lam v Minister for Immigration and Border Protection [2019] HCATrans 43 (Lam). Lam is a transcript of an ex tempore judgment of Nettle J on an application for a Constitutional or Other Writ in the High Court’s original jurisdiction. His Honour held in that case that a delegate of the Minister for Immigration and Border Protection acted with legal unreasonableness by proceeding to reject the plaintiff’s application for a Temporary Graduate (Graduate Work) (Subclass 485) visa rather than wait for Trades Recognition Australia (TRA) to assess the review application for the plaintiff’s nominated skilled occupation of carpenter (a process which was likely to be completed within 30 days).

31    Nettle J’s conclusion, which was partially extracted in the appellant’s first ground of appeal, was expressed as follows at page 10 of the transcript:

For all that appears from the Decision Record (and there is no other evidence to the contrary) the delegate entirely failed to engage with the possibility of delaying her decision until the likely completion of the TRA review within the next 30 days. So to approach the matter, reflects a degree of insouciance which surely cannot be regarded as an acceptable discharge of the statutorily implicit requirements of the decision-making function. To adopt and adapt the language of French CJ in Li, it bespeaks a degree of arbitrariness which renders it legally unreasonable.

In the result, I reject the Minister’s submission that there was an evident basis for the delegate proceeding to determine the application without waiting the time required for completion of the TRA review. In my view, it was not open for a reasonable decision-maker to act in that manner in the circumstances of this case. I consider that the delegate acted with legal unreasonableness in adopting the course she did.

(Citations omitted.)

32    The principles relied upon by Nettle J are not in dispute. Section 363(1)(b) of the Act provides that ‘[f]or the purpose of the review of a decision, the Tribunal may… adjourn the review from time to time’. As that power is a statutory discretion, it is presumed that that power will be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [63] (per Hayne, Kiefel and Bell JJ). However, as was accepted by Nettle J in Lam at page 9, whether a decision not to adjourn a proceeding amounts to legal unreasonableness is a “question of fact and degree dependent on the circumstances of each case”.

33    In the present case, the assertion that it was unreasonable for the Tribunal to not adjourn its proceeding must fail. First, the Tribunal’s jurisdiction was not capable of “correction” through the lodgement of a fresh nomination from the appellant’s new employer. At the time the application for review was made to the Tribunal, the appellant was not sponsored by an approved sponsor, nor was a separate application for review of a decision to not approve a sponsor pending. The criteria in s 338(2)(d) of the Act were therefore not satisfied. The fact that those circumstances could subsequently change does not render the delegate’s decision a “Part 5-reviewable decision”. Accordingly, an adjournment of the Tribunal’s proceedings would have been of no utility.

34    Second, as a matter of law, it was not open to the Tribunal to exercise the power under s 363(1)(b) of the Act. That power to adjourn is premised on there being a “review of a decision”. As the Tribunal found it did not have jurisdiction to review the delegate’s decision, it was not a “Part 5-reviewable decision” that enlivened the Tribunal’s review obligation under s 348(1) of the Act or its procedural fairness obligations under Part 5 of the Act: see, for example, Perera v Minister for Immigration and Border Protection (No 2) [2014] FCA 182 at [23] per Bromberg J.

35    In any event, to the extent that any common law procedural fairness might have applied to the decision, the Tribunal afforded the applicant procedural fairness by writing to the appellant and inviting him to comment on the validity of the review, and considering his comments prior to making the decision that it had no jurisdiction to review the delegate’s decision.

36    For these reasons, there is no merit in the appellant’s grounds of appeal.

Conclusion

37    The appellant did not provide an adequate explanation for failing to raise the grounds of appeal before the Circuit Court. Given his new grounds of appeal raised in this Court are devoid of merit, leave to now advance them should be refused.

38    In these circumstances, the appeal to this Court must be dismissed. The appellant will pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:        4 December 2019