Federal Court of Australia

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 820

ORDERS

THE COURT ORDERS THAT:

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

2.    The amended application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    This is an application pursuant to r 35.11 of the Federal Court Rules 2011 (Cth) (FCR) for leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (FCC), as it was then known: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2094 (primary judgment or PJ).

2    The primary judge dismissed the applicants’ application for judicial review pursuant to r 44.12 of the now repealed Federal Circuit Court Rules 2001 (Cth) (FCC Rules), on the basis that it did not raise an arguable case.

3    Such a dismissal was an interlocutory decision under r 44.12(2) of the FCC Rules, giving rise to a need for leave to appeal to be granted in this Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

4    A final hearing was listed on 23 June 2023. The parties were notified of the listing as long ago as 27 February 2023. On the morning of 23 June 2023, Mr Michael Rodriguez of Contact Lawyers Pty Ltd wrote to the Court, seeking leave to “appear as a friend of the Court to assist [the applicants] and seeking an adjournment to assist [the applicants] further”.

5    No explanation was given for any delay, however, in the light of: this request; Mr Rodriguez’s candid intimation to the Court that he was not a migration lawyer; and my concern about the way the application for leave had been prepared, I took the unusual course of providing Mr Rodriguez with leave to appear without becoming the solicitor on the record, somewhat similar to acting as an interim form of “McKenzie Friend” providing assistance to the applicants: see McKenzie v McKenzie [1970] 3 WLR 472 (at 475 per Davies LJ). Mr Rodriguez used his limited role helpfully to explain that the applicants sought an adjournment in order to obtain legal advice, and told the Court he intended to connect the applicants with a legal practitioner based in Melbourne: T3.3–42.

6    With the first respondent’s (Minister) consent, the hearing was adjourned to today, and I ordered the applicants pay the Minister’s costs thrown away by reason of the adjournment and relevantly noted that:

3.    The adjournment is to allow the applicants belatedly to obtain legal advice.

4.    The Court is prepared for counsel for the applicants to appear remotely on the next return date.

7    I explained to the applicants that subject to any further submissions, my preliminary view was that owing to the present demands on my docket, I could not readily accommodate further adjournments to facilitate the applicants obtaining legal advice at the last minute.

8    Today, the applicants appeared remotely and were unrepresented.

9    For the reasons that follow, even on the most favourable available reading of the applicants’ material, there is no reason for this Court to grant leave to appeal from the FCC’s decision.

B    BACKGROUND

10    The first and second applicants are husband and wife, both citizens of India. The third and fourth applicants are children of the first and second applicants.

11    The first applicant (Mr Singh) arrived in Australia in May 2008 as the holder of a Higher Education Sector visa. The second and third applicants arrived in Australia in August 2012, and the fourth applicant was born in Australia in 2013.

12    The applicants lodged applications for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) (Direct Entry scheme) visas in December 2015. Mr Singh was the “primary applicant” and the second, third and fourth applicants applied as secondary applicants, or “member[s] of the family unit”: cl 186.311 of the Migration Regulations 1994 (Cth) (Regulations).

13    The criteria for a Subclass 187 visa are set out in Pt 187 of Sch 2 to the Regulations. Mr Singh was required to satisfy cl 187.233 of the Regulations, which relevantly provides as follows:

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

(a)    nominated in an application for approval that:

(i)    identifies the applicant in relation to the position; and

(ii)    is made in relation to a visa in a Direct Entry stream; and

(iii)    seeks to meet the requirements of subregulation 5.19(12); 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 made the nomination.

(3)    The Minister has approved the nomination.

(4)    The nomination has not subsequently been withdrawn.

(4A)    Either:

(a)    there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b)    it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(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.

(Emphasis added).

14    By operation of cl 186.312, “[a]ny nomination approved in respect of the primary applicant” extends to secondary applicants.

15    The critical matter is that Mr Singh was required to have an approved nomination in order to be eligible for the relevant visa. Mr Singh did not have such a nomination.

16    A company in the name of K&P Sidhu Investments Pty Ltd (K&P) made a nomination application in relation to Mr Singh in December 2015. This application was refused by a delegate of the Minister in January 2017. K&P unsuccessfully sought a review of that decision in the Administrative Appeals Tribunal (Tribunal), and later sought judicial review in the FCC. The FCC proceeding was dismissed for non-appearance pursuant to r 13.03C(1)(c) of the FCC Rules, and no application for reinstatement was made.

17    In February 2017, a delegate of the Minister refused to grant the visas pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

The Tribunal’s Decision

18    The applicants applied to the Tribunal for review of the delegate’s decision.

19    Mr Singh attended a hearing before the Tribunal in November 2018. Shortly after the hearing, the Tribunal wrote to the applicants in the following terms:

I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

•    On 29 November 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (K & P Sidhu Investments Pty Ltd).

The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved.

If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

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

(Underlining and bolding added).

20    The applicants did not provide a response.

21    The Tribunal later affirmed the Minister’s decision not to grant the applicants visas, providing written reasons in support (Decision Record): Decision Record (at [15]).

22    At the risk of repetition, it is worth noting that the Tribunal emphasised in clear terms that cl 187.233(3) requires a nomination to be made and approved by the Minister. Mr Singh was not the subject of an approved nomination, and so he and his family were not eligible for the relevant visas: Decision Record (at [13]). This information was put to the applicants pursuant to s 359A of the Migration Act and they were given an opportunity to respond. This was not taken up: Decision Record (at [11]–[12]).

23    The applicants then sought review of the Tribunal’s decision in the FCC pursuant to s 576 of the Migration Act.

The FCC’s Decision

24    Mr Singh appeared at the hearing in support of the applicants’ originating application, relying on a singular ground, namely:

Jurisdictional Error as Tribunal did not consider all the facts

25    No particulars were provided.

26    The primary judge dismissed the application pursuant to r 44.12 of the FCC Rules. In effect, three reasons were given for doing so.

27    First, and primarily, the ground relied upon was “patently incapable” of establishing an arguable case (at [13]). The Tribunal identified the relevant factual issue, being whether Mr Singh had an approved nomination: there was no dispute he did not.

28    Secondly, the primary judge explained that whether there was an error in respect of the nomination approval was not an issue before the Court, or an issue that raises an arguable case where there are no proceedings on foot relating to the refused approval of the nomination (at [10]–[11], [15]). This meant that the applicants’ submissions about the errors made by the Minister when considering the nomination were irrelevant.

29    Thirdly, and following from the previous point, the applicants’ affidavit evidence was focussed on circumstances as to the refusal to approve the nomination (at [14]–[15]). This said nothing of whether the Tribunal had erred.

C    APPLICABLE PRINCIPLES

30    The principles attending the grant of leave to appeal are well settled.

31    Two elements must be established: the first is that the decision below is attended with sufficient doubt to warrant its reconsideration in all the circumstances; the second is that substantial injustice would result if leave were refused, supposing the decision to be wrong. The sufficiency of doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. For reasons that will become evident, it is only necessary to deal with the first limb.

32    The content of “sufficient doubt” and “substantial injustice” is a contextual inquiry informed by the substance of the issues before the Court. It is, therefore, important to say something further of the discretion in r 44.12 of the FCC Rules. The discretion to dismiss an application “if it is not satisfied that the application has raised an arguable case for the relief claimed”, is wide, and is to be exercised with great care: SZTOV v Minister for Immigration and Border Protection [2014] FCA 942 (at [16] per Flick J).

33    Recently, Bromwich J explained that in migration cases involving self-represented litigants, it may sometimes be necessary for a judge to look beyond the bare pleaded case “in order to ascertain not just whether there was an error of commission … but also any error of oversight or omission”: EPE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 170 (at [19]–[21]). The conclusion reached by the primary judge in circumstances such as the present is “not as immune from appellate review as the almost rote application of House v The King [(1936) 55 CLR 499] might suggest”: EPE19 (at [21] per Bromwich J). This is because the “latitude” given to a decision-maker as to the choice of the decision to be made is narrow where the decision-maker is required to take a certain step, such as dismissing a proceeding, if he forms a particular view: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 (at 204–205 [19] per Gleeson CJ, Gaudron and Hayne JJ).

D    THE APPLICATION FOR LEAVE TO APPEAL

34    The initial application for leave to appeal, filed in August 2021, was replaced by an amended application for leave to appeal, filed in September 2021.

35    Rule 35.12(2)(d) of the FCR provides that an application for leave to appeal must be accompanied by a draft notice of appeal complying with FCR 36.01(1)–(2). The amended application is not accompanied by a draft notice of appeal. The affidavit affirmed by Mr Singh on 30 August 2021 and filed in support of the original application for leave to appeal (Singh Affidavit) does, however, contain a notice of appeal in the proper form.

36    I do not think any unfairness is occasioned upon the Minister if the Court has reference to the draft notice of appeal annexed to the Singh Affidavit, which contains only the following ground and particulars:

The Federal Circuit Court erred in failing to find that the second respondent did not consider evidence that corroborated the first applicant’s claims.

Particulars

a)    The appellant provided corroborating detailed evidence in the forms of Affidavit and documents regarding personal circumstances, Employer Sponsorship, Employer’s Financials.

b)    The second respondent failed to engage in an active intellectual engagement with the contents of those documents as is required by law.

c)    The second respondent draw inferences about the evidence provided by the first appellant but only mere mention of evidence does not permit the second respondent to draw those inferences against the appellant.

d)    The second respondent gave no evidentiary weight to the corroborating evidence.

e)    In the circumstances, the second respondent was required to specifically address and make findings in relation to the corroborating evidence, rather than mere mention of the evidence at paragraph 10 of the second respondent judgment.

(Emphasis in original).

37    Mr Singh appeared at the hearing and made oral submissions. No written submissions were filed by the applicants. The only material in support of the application is the Singh Affidavit, which relevantly states that:

…

2.    All the evidence been provided to Second Defendant were not considered before making the decision.

3.    An opportunity for a natural justice was not provided to me and/or my employer.

4.    First Respondent failed to consider all the relevant facts and made decision purely on the assessment of Regional Certifying body’s assessment without providing any reasoning or explanation of the negative outcome.

5.    Second Respondent failed to consider all the facts and financials provided to demonstrate that the position was genuine as well as the employer had a capacity to nominate

38    In summary, the arguments raised were overlapping, and may conveniently be grouped into four camps:

(1)    all of the evidence was not considered;

(2)    following from the first point, the “corroborating evidence” was given no weight;

(3)    natural justice was not afforded to the applicants; and

(4)    proper reasons were not given by the Tribunal.

39    It is probably already evident from the above, but the ground of the application for leave to appeal, and the matters raised in the Singh Affidavit, do not cast doubt on the primary judgment.

40    The insuperable difficulty, properly recognised by the primary judge, is that there was no error because Mr Singh did not have an approved nomination, and therefore the applicants could not be eligible for the visas. The primary judge was clearly correct in rejecting the assertion of jurisdictional error on behalf of the Tribunal.

41    Regrettably, the applicants have misdirected their efforts. So much is reflected in the Singh Affidavit and the proposed grounds of appeal, which are primarily directed at the “second respondent”, being the Tribunal, and advance a contention that natural justice was not provided to Mr Singh’s employer. Despite the submissions made today, I explained this Court does not have jurisdiction to conduct a merits review of the Tribunal’s decision: s 476 of the Migration Act.

42    In any event, for completeness, I will briefly address the applicants’ contentions.

43    As to the first and second contentions identified above, for reasons already explained, the primary judge was correct to find a claim that the Tribunal failed to consider “all the facts” could not succeed.

44    Moreover, contrary to particular (a) of the draft notice of appeal, there was no affidavit evidence before the Tribunal. In any event, the primary judge also had regard to Mr Singh’s affidavit evidence filed in the FCC, notwithstanding that evidence focussed on the refusal of the nomination, rather than the issue before the Tribunal, which was the relevant visa refusal (at [14]–[15]). The primary judge was satisfied that affidavit evidence did not support a conclusion that there was an arguable case for error in the Tribunal’s decision. I can see no reason to doubt that conclusion.

45    I hasten to add here that a finding that a decision-maker has failed to “engage” with a particular matter so as to reveal a lack of any active intellectual process will not be made lightly and must be supported by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (at 364 [48] per Griffiths, White and Bromwich JJ). Nothing that the applicants submit should have been considered by the Tribunal was required to be taken into account when applying cl 186.233 of the Regulations.

46    To the extent that the third and fourth contentions can be construed as proposed points of appeal, they were not put below; accordingly, leave to raise these points on appeal would be required. In addition, the third and fourth contentions impermissibly invite the Court to engage in a review of the Tribunal’s decision.

47    During the course of oral submissions today, Mr Singh noted he believed the primary judge dealt with the matter in form but not in substance and did not allow him to develop his arguments. I was conscious during the hearing of affording Mr Singh every opportunity to present his case. Nothing said could overcome the real difficulty, being the rejection of the nomination made by K&P in respect of which judicial review was not pursued.

48    Whatever sympathy I feel for the applicants, my role is a limited one. Mr Singh, in the course of his articulate presentation, noted he recognised the reality that the circumstances of his family need to be reconsidered by the Department of Home Affairs (Department). I think he is correct in this assessment. It is not an appropriate function of the judicial branch of government for me to send a matter back to the Department just because I may have an underlying view as to the merits of the decision or because I feel some sympathy for the applicants.

49    I hope and trust Mr Singh and his family will go away from the Court knowing I have reviewed the papers carefully and ascertained whether there is any legal basis for me to consider any alternative challenge to the primary judge’s decision. As explained above, I can see no reason to grant leave to appeal that decision.

E    CONCLUSION AND ORDERS

50    For the foregoing reasons, the amended application for leave to appeal should be dismissed with costs.

Associate:

Dated:    20 July 2023

SCHEDULE OF PARTIES