Federal Court of Australia

Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

ANDERSON J

introduction

1    This is an appeal from the judgment and orders of the primary judge made on 27 July 2022. The primary judge dismissed an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 16 August 2017. The Tribunal affirmed the decision made by a delegate of the Minister for Immigration and Border Protection (Delegate) not to grant the appellant a Temporary Business Entry (Class UC) visa (visa): Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 588 (Judgment).

background

2    The appellant is a citizen of India. On 29 August 2013, the appellant applied for the visa. In his visa application, the appellant identified “Guru Tegh Bahadur Pty Ltd T/A Royal Productions” as his sponsoring employer (Sponsor). He sought sponsorship as a Conference and Event Organiser.

3    On 5 November 2013, the Delegate requested more information including evidence of the appellant’s qualifications, skills and work experience. On 5 December 2013, the appellant’s representative requested an extension of time of time to provide additional information. The Delegate granted the appellant an extension of time until 15 December 2013. The appellant did not provide any additional information in response to the request.

4    On 23 January 2014, the Delegate refused to grant the visa on the basis that cl 457.223(4)(da) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met. The Delegate was not satisfied that the appellant had the skills, qualifications and employment background necessary to successfully perform the tasks of his nominated occupation as a Conference and Event Organiser.

5    The appellant applied for review of the Delegate’s decision to the then Migration Review Tribunal. On 28 January 2015, the Migration Review Tribunal affirmed the decision under review. The appellant sought judicial review of that decision. On 7 December 2016, by consent of the parties, the then Federal Circuit Court of Australia remitted the matter to the Tribunal.

6    On 5 June 2017, the Tribunal wrote to the appellant pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) inviting him to provide information concerning, amongst other things, whether he was the subject of an approved nomination and met the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations (5 June 2017 Letter). This letter relevantly stated:

You have provided a copy of the Nomination Approval Notice dated 4 December 2013. This nomination ceased after 12 months by reference to r.2.75.

Subclause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment.

You are invited to provide the following information in writing:

•    Information that the visa applicant meet the cl. 457.223(4)(a) of the Regulations.

…

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

7    On 19 June 2017, the appellant requested an extension of time to provide comments and a response. On 20 June 2017, the Tribunal granted an extension of time to provide information for a further 14 days, until 4 July 2017. In granting the extension, the Tribunal again stated:

If we do not receive your comments or response by 4 July 2017, we 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 us to give evidence and present arguments.

8    On 4 July 2017, the appellant's representative requested a further extension of time to provide information. On the same day, the Tribunal officer left a telephone message for the appellant’s representative advising that the Tribunal may only grant one extension of time and only for the further prescribed period. Accordingly, the representative was informed that no further extension of time to provide information requested under s 359(2) of the Act could be granted by the Tribunal.

9    On 17 July 2017, a newly appointed representative (who had been appointed that day) requested an extension of seven additional days to provide a detailed response.

tribunal decision

10    On 16 August 2017, the Tribunal made its decision, affirming the Delegate’s decision not to grant the appellant the visa (TD). As noted by the Tribunal at TD [11], as at the day of its decision, no further correspondence had been received by the Tribunal either from the appellant or his newly appointed representative.

11    The Tribunal noted that in the circumstances, and pursuant to ss 359C and 360(3), the appellant was not entitled to a hearing before the Tribunal. The Tribunal determined that, by reason of s 363A of the Act, if the appellant had no entitlement to a hearing, the Tribunal had no power to permit him to appear: TD [12].

12    The Tribunal then proceeded to consider whether it should further adjourn the review under s 363(1)(b) of the Act to allow the appellant additional time in which to provide further information in support of his application. The Tribunal referred to the relevant authorities and noted that the Tribunal is not required to indefinitely defer its decision It also considered the reasonableness of any request for an adjournment In this context the Tribunal considered whether information that the appellant met the requirements of cl 457.223(4)(a) of the Regulations was likely to be forthcoming, whether the appellant had had a fair opportunity to provide the relevant information already, the extension of time granted, and the significance of the information or documents to the appellant: TD [13]-[15].

13    The Tribunal noted that the visa application was lodged on 29 August 2013 and that the Department refused the application on 23 January 2014 because the Delegate concluded that the appellant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The Tribunal had regard to the fact that, if the appellant was not granted a temporary work visa, he may have to depart Australia. However, it noted that the appellant could re-apply for this visa once he found a new business sponsor: TD [18]-19].

14    The Tribunal concluded that the appellant had had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the visa requirements and decided not to further delay making a decision in this matter: TD [20]-[21].

15    The Tribunal was not satisfied that the appellant was, at the time of its decision, the subject of an approved business nomination that had not ceased. The Tribunal was also not satisfied that there was an approved nomination of an occupation in relation to the appellant that had not ceased. Therefore, the Tribunal found that the appellant did not satisfy cl 457.223(4)(a) of the Regulations and affirmed the Delegate’s decision: TD [22]-[24].

DECISION OF THE PRIMARY JUDGE

16    On 5 September 2017, the appellant applied for judicial review of the Tribunal’s decision. The appellant was unrepresented in those proceedings. The appellant’s application identified four grounds of review:

(1)    the Tribunal failed to accord to the appellant procedural fairness;

(2)    the decision of the Tribunal was affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied cl 45.223(4) of the Regulations;

(3)    the Tribunal failed to comply with s 353(1) of the Act by refusing to grant the requested extension of time; and

(4)    the Tribunal erred by not considering certain relevant considerations and giving emphasis to irrelevant considerations.

17    On 27 July 2022, the primary judge made orders dismissing the application, with costs.

Ground 1

18    The primary judge had regard to the Tribunal’s reasons for not further adjourning the review (Judgment [50]-[53]) and found that “in the context of this matter, it cannot be said that the Tribunal’s reasons do not demonstrate an ‘intelligible justification’ for the Tribunal’s refusal to adjourn the review application”: Judgment [54]. The primary judge found that the Tribunal had arguably decided that “enough is enough” and that the appellant had been given a sufficient opportunity to “rectify the relevant issue and obtain an approved nomination”: Judgment [56]-[57]. The primary judge concluded that the Tribunal’s decision contained an evident and intelligible justification for its refusal to adjourn the matter: Judgment [58].

19    The primary judge found that there was no evidence before the Tribunal to suggest that the appellant was the subject of an approved nomination or that any nomination application was pending, and that while its reasons for decision were different to those given by the Delegate this did not amount to a failure to review: Judgment [60]-[61].

20    The primary judge found that, once the appellant failed to provide a substantive response to the s 359(2) invitation, s 359C(1) of the Act was enlivened, and the effect of ss 360(2)(c), 360(3) and 363A of the Act were that he lost his entitlement to attend a hearing: Judgment [62]-[67]. The primary judge further found that the appellant was on notice of this (Judgment [68]-[70]), and that no error arose from the Tribunal’s failure to invite the appellant to a hearing: Judgment [71].

21    Finally, the primary judge found that the Tribunal did not misconstrue or misapply Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 (Huo). The primary judge held that Huo stood for the proposition that the Tribunal was under no obligation to indefinitely postpone the making of a decision solely on the basis that an applicant wished to attempt to meet a visa criterion not yet met: Judgment [72]-[76].

22    For the above reasons, the primary judge found that no error arose in relation to ground 1: Judgment [77].

Ground 2

23    The primary judge found that the Tribunal’s finding that the appellant was not the subject of an approved nomination and did not satisfy cl 457.223(4) was dispositive, that it was irrelevant whether the appellant satisfied any other subclauses, and that there was no requirement for the Tribunal to consider any other visa criteria: Judgment [80]-[84]. The primary judge further found that the evidence before the Tribunal demonstrated that a nomination had been approved on 4 December 2013 but that nomination had ceased after a 12-month period, and that there was no evidence before the Tribunal to suggest that a new nomination was in place or that any nomination application was pending: Judgment [86]. The primary judge accordingly found that the Tribunal did not misconstrue or misapply cl 457.223(4): Judgment [87].

24    The primary judge rejected the appellant’s contention that the Tribunal failed to consider information which was before it, or that it acted in haste, having regard to the extensions of time which had been given to the appellant, and the lack of any evidence that a new sponsorship was being arranged or was pending: Judgment [88]-[96].

25    For the above reasons, the primary judge found that no error arose in relation to ground 2: Judgment [97].

Ground 3

26    The primary judge found that the Tribunal did not make its decision on the basis of a technicality or rule of evidence, and that it assessed whether the appellant met the criteria for grant of the visa, as it was required to do: Judgment [100]. The primary judge did not accept that the Tribunal failed to provide the appellant sufficient time to organise a new nomination, finding that he was on notice from 5 June 2017 that the nomination approval had ceased, and that he had failed to provide any evidence to the Tribunal to suggest that a new nomination would be forthcoming: Judgment [101].

27    For these reasons, the primary judge found that no error arose in relation to ground 3: Judgment [102].

Ground 4

28    The primary judge found that the matters referred to in this ground were not relevant and did not need to be considered by the Tribunal, and that the sole question for the Tribunal was whether there was a valid nomination in place for the appellant in relation to the nominated position: Judgment [104]-[108]. The primary judge found that in circumstances where there was no evidence before the Tribunal to indicate that the appellant was the subject of an approved nomination, the Tribunal made the only decision open to it, and concluded that no error arose in relation to this ground: Judgment [109]-[110].

other matters

29    The primary judge further found that even if an error was established, any remittal to the Tribunal would be futile because a subclass 457 visa had been removed from the list of skilled visas such that the appellant would be unable to obtain a new nomination and would be unable to be granted the visa: Judgment [129]-[132].

the appeal

30    On 23 August 2022 the appellant filed a notice of appeal from the judgment and orders of the primary judge. On 30 August 2022, the Court made orders providing for an amended notice of appeal to be filed, as well as supporting written submissions. The appellant did not file either an amended notice of appeal or written submissions.

31    By his notice of appeal, the appellant relies on four grounds of appeal, which can be summarised as follows:

(1)    The primary judge failed to investigate and assess the appellant’s claims that he was in touch with his sponsoring employer, who was willing to sponsor him for the grant of the visa.

(2)    The appellant was the subject of an approved nomination at the time of the Tribunal decision and he was not afforded sufficient opportunity to provide evidence of this to the Tribunal. The Tribunal erred in failing to grant an adjournment, and the primary judge erred in his application of Huo.

(3)    The primary judge erred in his findings that remittal to the Tribunal would be futile, because if the matter were remitted the appellant could provide evidence of his sponsorship.

(4)    The Tribunal was biased against the appellant as demonstrated by its refusal to adjourn the proceedings, and the primary judge was biased as demonstrated by his failure to consider the adverse consequences of the visa refusal on the appellant.

32    The appellant was unrepresented at the hearing of the appeal. At the hearing, the appellant submitted that the “only error” of the primary judge was in failing to address the Tribunal’s refusal to grant the requested extension of time: Transcript page 3, lines 1-13. Notwithstanding this apparent concession, as the appellant is self-represented, I have considered each of the grounds of appeal raised in his notice of appeal.

consideration

Ground 1

33    In the 5 June 2017 Letter, the Tribunal noted that the appellant’s nomination approval notice dated 4 December 2013, relating to the sponsorship application by The Trustee for Guru Teg Bahadur Unit Trust, ceased after 12 months.

34    As was set out by the primary judge, nothing provided to the Tribunal by the appellant or his representatives following the receipt of this letter suggested that a new sponsorship or nomination application was being arranged: Judgment [89]-[94]. Relevantly to appeal ground 1, at no time after the 5 June 2017 Letter did the appellant intimate, let alone provide information or evidence, to the Tribunal that the appellant was still in touch with his sponsor, or that the sponsor was still willing to sponsor him. The correspondence sent to the Tribunal by the appellant’s representatives made no mention of the sponsor at all. The Tribunal cannot have fallen into error by failing to consider a matter which was not raised with it.

35    Similarly, the material filed by the appellant in the Court below did not assert that the appellant was still in touch with his sponsor or that the sponsor was willing to sponsor him, and the primary judge accordingly cannot have fallen into error by failing to consider these matters.

36    The appellant has not established any error in the analysis and reasons given by the primary judge and ground 1 must be dismissed.

Ground 2

37    As was found by the primary judge, on the evidence before the Tribunal no valid nomination existed: Judgment [85]. The nomination which had been approved had expired, the appellant was put on notice of this, and at no time suggested to the Tribunal that he was in fact the subject of an approved nomination that had not ceased. The appellant also provided no evidence to the Court below to establish that he was the subject of an approved nomination that had not ceased. Accordingly, it was reasonably open to the Tribunal to conclude that the appellant did not have an approved nomination and that he did not satisfy cl 457.223(4), and no error is established in the primary judge’s findings on this point.

38    The allegation that the appellant was not afforded a sufficient opportunity to provide evidence to the Tribunal must be rejected.

39    As noted above, on 5 June 2017 the Tribunal wrote to the appellant pursuant to s 359(2) of the Act inviting him to provide information in writing as to whether he was the subject of an approved nomination and met the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations. By this letter, the Tribunal drew the appellant’s attention to the criterion prescribed by cl 457.223(4)(a).

40    The Tribunal correctly determined that the appellant had to be the subject of a nomination of an occupation made by a standard business sponsor that had not ceased (cl 457.223(4)(a)). The appellant was properly apprised of this issue and chose not to provide information to enable the Tribunal to be satisfied that he met that essential requirement.

41    The appellant has not, in his notice of appeal or oral submissions, contested that the Tribunal correctly identified and applied the relevant prescribed period for the purposes of granting an extension of time for the receipt of additional information. It follows that the Tribunal then correctly proceeded on the basis that the appellant was not entitled to appear at the hearing because of the operation of s 359C and s 360(3) of the Act: Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [27], [29]).

42    The Tribunal carefully considered whether it should further adjourn the review under s 363(1)(b) of the Act to allow the appellant additional time in which to provide further information in support of his application. However, the Tribunal considered that the appellant “ha[d] had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria”: TD [20]. As was found by the primary judge, given the extension of time which had been given to the appellant, it was open to the Tribunal to decide that “enough is enough” and that the appellant had been given a sufficient opportunity to provide evidence that he had an approved nomination: Judgment [56]-[57].

43    Finally, there was no error in the primary judge’s application of Huo. Before the primary judge, the appellant asserted that the Tribunal incorrectly applied the decision in Huo because, unlike the appellant, Mr Huo appeared before the Tribunal. This argument, to the extent it is pressed on appeal, has no merit. In Huo, Conti J, held that the Tribunal was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt to meet “a statutory criterion found not as yet to have been fulfilled”: at [31]. It was in that context that the Tribunal referred to Huo when it noted that it was not required to indefinitely delay its decision. That statement of principle was correct, and applicable to the appellant’s request for a further extension of time in circumstances where the appellant had provided the Tribunal with no indication of what steps he was taking to meet the relevant visa criterion. The judge was correct to affirm the Tribunal’s application of Huo.

44    I detect no error in the reasoning and conclusions reached by the primary judge under ground 2. It follows that ground 2 must be dismissed.

Ground 3

45    On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (Amending Regulations). Following these amendments, regs 2.72(1) and 2.73(1) only allow for nomination under s 140GB of the Act in respect of a person who already holds a 457 visa. It is not possible for the appellant to obtain an approved nomination under s 140GB as required to be granted a subclass 457 visa. As noted by the primary judge, by reason of the Amending Regulations, even if the Court were to remit this matter to the Tribunal, there is nothing the Tribunal could do to assist the appellant as he would be unable to obtain an approved nomination and would be unable to satisfy cl 457.223(4) of Sch 2 to the Regulations: Judgment [130].

46    The appellant has not identified any error in the primary judge’s reasons in this respect. It follows that ground 3 must be dismissed.

Ground 4

47    The allegation made in ground 4 that the Tribunal was biased was not agitated in the Court below, and the appellant requires leave to raise this ground on appeal. The appellant did not explain, either in his notice of appeal or in his oral submissions at the hearing, why this ground was not raised before the primary judge.

48    In any case, the ground is without merit. For the appellant to establish either actual or apprehended bias on the part of the Tribunal, the allegation must be distinctly made and clearly proved: Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69]. To establish actual bias, the appellant must demonstrate that the Tribunal’s state of mind, in exercising the discretion, was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented. To establish apprehended bias, the appellant must demonstrate that the Tribunal behaved in such a way which might lead a fair-minded lay person to reasonably apprehend that it might not have brought an impartial mind to the making of the decision: SZRUI v Minister for Immigration, Citizenship and Multicultural Affairs [2013] FCAFC 80 at [2], [73].

49    The Tribunal gave reasons for not further adjourning the review at TD [13]-[21]. The primary judge was correct to conclude that the Tribunal’s reasons provided an intelligible justification for that decision: Judgment [58]. In these circumstances, the Tribunal’s failure not to adjourn its proceeding does not disclose any actual or apprehended bias.

50    The appellant has provided no evidence in support of his allegation that the primary judge was biased. This allegation is rejected. To the extent that the appellant complains that the primary judge did not consider the effect of the visa refusal on the appellant, this was not relevant to the Court’s task in conducting judicial review and this is not capable of establishing any error. It follows that ground 4 must be dismissed.

disposition

51    The appeal will be dismissed with costs.

Associate:

Dated:    20 December 2023