Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 87

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Leave to rely on grounds of appeal not raised before the primary Judge be refused.

3.    The appeal be dismissed.

4.    The first and second appellants pay the first respondent’s costs fixed in the sum of $5,000.00.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from the judgment and orders of a Judge of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1090. In that decision, the primary Judge dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). Relevantly, on 15 November 2019 the Tribunal affirmed a decision of a delegate of the first respondent, the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse a grant of a Temporary Business Entry (Class UC) (Subclass 457) visa (as it was) to the appellants.

2    In their notice of appeal filed 20 May 2020, the appellants seek the following orders:

1.    An order that the decision of the tribunal be quashed.

2.    A writ of certiorari removing into this Court to be quashed the purported decision of the Second Respondent made on 16 October 2019.

3.    A declaration that the decision is void and of no effect.

4.    An order by way of mandamus that the Second Respondent reconsider the application for review in accordance with law and any directions of the Court.

5.    An order that the First Respondent pay the Applicant’s costs.

3    The grounds of appeal on which the appellants rely are as follows:

1.    The tribunal erred in law.

Particulars:

A.    The tribunal errored in law by finding that the applicants could not link new TSS nomination to previous Subclass 457 visa. [13]

2. The tribunal failed in advising Ministerial Intervention Options.

Particulars:

A.    After finding the primary application suffered tragic loss of child, the tribunal failed to advice further options to seek Ministerial Intervention or refer the case to the Minister under unique and exceptional circumstances. [12]

(errors in original)

4    As correctly noted by the Minister, the appellant’s grounds of review are grounds not previously raised before the primary Judge. It follows that the appellants require leave to rely on these grounds. The Minister opposes the grant of leave.

background

5    The first appellant is a citizen of India. On 14 March 2017 the appellant applied for a Temporary Business Entry (Class UC) visa (visa), in the standard business sponsorship stream. Relevantly, the nominating employer, or sponsor, was Royal Indian Kitchen Pty Ltd, and the nominated occupation was chef. The second, third and fourth appellants sought to be included in the first appellant’s visa application on the basis of their membership of the appellant’s family unit.

6    On 31 December 2018 the Department of Home Affairs invited the appellants to comment on the information provided in support of the visa application. In particular, the Department noted that Royal Indian Kitchen Pty Ltd did not have an approved nomination for the appellant, and therefore the application could not be approved.

7    The appellants did not provide any further information or response.

8    On 30 January 2019 a delegate of the Minister refused to grant the visa on the grounds that the delegate was not satisfied that clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) were met.

9    On 15 February 2019 the appellants applied to the Tribunal for review of the decision. Subsequently, the Tribunal invited the appellants to comment, and on 30 September 20219 the appellants provided written submissions. On 10 October 2019 the matter was heard before the Tribunal.

10    On 16 October 2019 the Tribunal affirmed the decision under review.

11    On 15 November 2019 the appellants applied for judicial review of the Tribunal’s decision in the Federal Circuit Court.

SUBMISSIONS

12    The appellants submitted, in summary:

    The first appellant was not aware that the visa was based on nomination;

    The Tribunal advised that the appellant could not link a new nomination to his visa application;

    Any fault in process lies with the appellants’ migration agent;

    The appellants have done nothing wrong.

13    The Minister submitted, in summary:

    There was no evidence provided by the appellants as to why these new grounds of appeal were not raised before the primary Judge;

    That the appellants were not represented in the Court below is not a sufficient explanation;

    The proposed grounds of appeal were vague and uninformative;

    In relation to proposed ground 1 there was no error on behalf of the Tribunal given that:

•    On 18 March 2018 the Migration Regulations were amended to remove the type of visa sought by the appellants, such that, from this date, no new nominations could be lodged; and

•    Alternatively, there was no evidence before the Tribunal which suggested that the appellant had a new approved nomination by 18 March 2018. Accordingly a grant of leave would be futile as the appellant did not satisfy the visa requirements.

    In relation to proposed ground 2, there was no power or discretion in the Tribunal to refer a matter before it to the Minister for intervention by the Minister under section 351 of the Migration Act 1958 (Cth).

CONSIDERATION

14    As a general proposition, and consistent with the objectives of s 37M of the Federal Court of Australia Act 1976 (Cth), the Court will not grant leave to raise new grounds on appeal except in circumstances where it is expedient and in the interests of justice to do so; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]; ASO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1141 at [28].

15    Importantly, the appellants have proffered no explanation as to why these grounds were not raised before the primary Judge. Whilst some latitude may be afforded to self-represented litigants, an appeal to this Court is not simply an opportunity for a second trial on a different basis; Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [36]. Nonetheless, the appellants have provided no submission or evidence explaining why the Court should grant leave to rely on grounds not raised before the primary Judge, other than that fault does not lie with the appellants. This of itself is not a sufficient explanation.

16    As observed by the Full Court in Khalil at [36], notwithstanding considerations such as explanation for delay and prejudice, the more meritorious the grounds, the more likely that leave will be granted. I will now turn to the merits of the proposed grounds. For the following reasons, I am not satisfied that the proposed appeal has any merit.

17    In relation to ground 1, first in my view there is no error on behalf of the Tribunal nor the primary Judge in relation to the findings that the relevant Migration Regulations (at the time) required a nomination as a precondition of the grant of visa. Nor was there any error in determining that there was no opportunity for the appellants to “link” a new nomination given that the visa in question had ceased in 2018. Second, at the hearing the first appellant submitted that the appellants could provide an approved nomination from their other organisation, in “maybe a few weeks” (transcript p 6 ll 16-17). There was no evidence before the Tribunal, nor the primary Judge, nor before this Court that the appellants had an approved nomination. In any event, this could prove fruitless given that the approved nomination was required under clause 457.22 at the time of the decision.

18    In relation to ground 2, it is unclear to the Court on what basis the Tribunal was obliged to advise the appellants to seek Ministerial intervention or to refer the matter to the Minister for intervention under exceptional circumstances. The appellant’s second ground of appeal is vague and demonstrates no error on behalf of the Tribunal nor the primary Judge.

19    Lastly, although not part of the appellant’s grounds, the majority of the appellant’s submissions placed blame upon the appellant’s migration agent. The primary Judge at [11] addressed this issue as follows:

11.     The giving of poor advice, be it negligent or fraudulent, by migration agents, has been dealt with in a number of reported cases. In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at paragraph 53, the High Court was there dealing with a case where the alleged fraud of a migration agent was claimed to have vitiated a decision of a Tribunal. It was said, at paragraph 53:

“53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.”

(footnotes omitted)

12.     This Court is not permitted to have regard to the giving of bad or negligent advice to the applicants when considering their application for review. It is clear that the applicants have not met the threshold criteria for the granting to them of a visa. In those circumstances, the application for review is without merit.

20    The appellants have not established that it is expedient and in the interests of justice to allow them to rely on the proposed new grounds. In addition, the grounds sought to be relied upon are without merit. Given the lack of reasonable explanation and lack of merit in the proposed grounds, leave to rely on the new grounds should be refused.

21    It follows that the appeal be dismissed.

22    On the question of costs, the Minister made submissions that the Court fix costs in the amount of $5,000.00. In particular, the Minister submitted that this amount is reasonable and proportionate to the matter: Bitek Pty Ltd v Connect Pty Ltd [2012] FCA 506 at [18]. I am satisfied that costs fixed in this amount are reasonable and proportionate.

conclusion

23    It is appropriate to refuse the appellants leave to rely on new grounds of appeal.

24    The appellant’s notice of appeal is dismissed.

25    The first and second appellants shall pay the Minister’s costs of the appeal, fixed in the sum of $5,000.00.

Associate:

Dated:    14 February 2023