Ahmed v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 420

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 December 2020. The Tribunal affirmed the decision of a delegate of the Minister to cancel the applicant's Temporary Work (Skilled) (subclass 457) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The applicant seeks judicial review on the ground that the Tribunal's decision was legally unreasonable, because it failed to await the outcome of the review of the refusal of the nomination application, before exercising its discretion to cancel the applicant's visa under s 116 of the Act.
3. For the reasons that follow, I find no jurisdictional error disclosed and, in any event, there is no utility in remitting the matter to the Tribunal, in circumstances where the visa expired on 12 April 2022, the class of 457 visa was repealed on 18 March 2018 and the Tribunal cannot substitute a different visa class outside the class of the visa for which the applicant originally applied. Further, the applicant would not be eligible to apply for a student visa.

1. I adopt the following uncontentious background facts from the Minister's submissions.
2. The applicant is a citizen of Bangladesh. He was granted the visa on 12 April 2018 based on his employment with Coranton Pty Ltd (sponsor). The visa was operative until 12 April 2022.
3. On 17 September 2018, a representative of the sponsor wrote to the Department, notifying it of the applicant's resignation and that the applicant was no longer sponsored by the company. The representative informed the Department that the applicant's last day of work was 17 September 2018.
4. On 28 May 2019, a delegate of the Minister wrote to the applicant providing notice of the Department's intention to consider cancellation (NOICC) of the visa. The NOICC informed the applicant that there was non-compliance with condition 8107 of his visa as provided for in sch 8 of the Migration Regulations 1994 (Cth) (Regulations), as he had ceased employment with his sponsor and the period during which he had ceased employment had exceeded 60 consecutive days.
5. In response to the NOICC, the applicant told the Department he had obtained employment with a restaurant. On 31 May 2019, the restaurant lodged a new nomination application for the applicant (Court Book (CB) 29).
6. On 9 December 2019, the delegate cancelled the applicant's visa. The delegate was satisfied that owing to the duration that the applicant had been unemployed, there was a ground for cancellation of the applicant 's visa and exercised the discretion to cancel the visa.
7. Following this, on 13 December 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 33 to 42).

1. On 22 October 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant appeared with the assistance of his migration agent, Mr Mohammed Ali (CB 86).
2. The Tribunal found there was a ground to cancel the applicant's visa on the basis the applicant had ceased employment for over 60 consecutive days, resulting in a breach of condition 8107(3)(b) of the visa.
3. The Tribunal noted at [42] to [44] of its reasons, the applicant said the following:

(a) On 31 May 2019, a new nomination application to sponsor the applicant was lodged.

(b) On 1 November 2019, a delegate of the Minister refused the nomination and an application for review had been lodged on 20 November 2019, which review had not yet been determined.

1. In the exercise of its discretionary power to cancel the visa, the Tribunal made the following findings:

(a) The Tribunal observed the purpose of a subclass 457 visa was to satisfy skills shortages and given the applicant was unable to secure further nomination, this pointed to the applicant's stay in Australia not being consistent with the purposes of the visa. The Tribunal accorded this some weight in favour of cancelling the visa ([48] and [49] of the reasons).

(b) The applicant had not complied with visa condition 8107 for a duration of more than a year. The Tribunal found this to be a substantial failure to comply with the visa condition and gave it 'significant weight' in favour of cancelling his visa ([50] of the reasons).

(c) The Tribunal accepted the applicant may suffer a degree of financial and emotional hardship if the visa was cancelled. The Tribunal accorded this little weight in deciding whether to cancel the visa ([51] to [52] of the reasons).

(d) The Tribunal was not satisfied the circumstances in which the ground for cancellation arose were not beyond the applicant's control. The Tribunal accorded this little weight in deciding whether to cancel the visa ([53] to [57] of the reasons).

1. The Tribunal at [65] of its reasons noted it considered all the factors and weighed them up against each other and concluded at [66], having regard to the significant extent of the applicant's breach of visa condition 8107 and the applicant's inability to successfully obtain a further nomination, the applicant's visa should be cancelled.
2. On 1 December 2020, the Tribunal affirmed the decision to cancel the applicant's visa.

1. Relevantly, at the material time, the Act provided as follows:

116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is

satisfied that:

...

(b) its holder has not complied with a condition of the visa.

1. The relevant visa condition provided as follows:

(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

...

(b) if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days.

1. In the amended application filed 13 May 2021, the applicant alleged jurisdictional error by the Tribunal on the following particularised ground (as written):

The Tribunal's decision was legally unreasonable.

Particulars

The Tribunal gave weight in favour of cancelling the Applicant's 457 visa to the fact that "the purpose of a subclass 457 visa was to satisfy skills shortages and because he has been unable to secure further nomination the evidence suggests that the applicant's travel to and stay in Australia are not for purposes consistent with the purposes of a subclass 457 visa."

The Tribunal was aware that the Applicant had been nominated for a position and that, while the nomination had been refused by a delegate of the Minister it was under review by the Tribunal and so had not been finally determined.

The outcome of the review of the nomination refusal was obviously relevant to its findings about the consistency of the purposes of the Applicant's stay in Australia. The Tribunal's failure to await the outcome of that review was unreasonable.

The Tribunal erred by failing to give any consideration to the impact of the Covid-19 pandemic on the Applicant's ability to return to his home country or alternatively to remain in Australia legally and support himself by working.

1. The applicant did not press the last particular in relation to the unreasonable ground of review, which was underlined.
2. The applicant relied, without objection, on the affidavit of Winnie David of Legal Transcripts, which annexed a copy of the transcript of the proceedings before the Tribunal. The applicant also relied on his written submissions filed 20 January 2025 and further submissions in reply filed 7 February 2025, as well as the submissions dated 13 March 2025.
3. The applicant relied on the authority KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 (KC), for advancing the position that the Tribunal's decision was unreasonable, in the sense identified in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li). The applicant specifically referred to [48] in KC where Rares J said:

While the Tribunal could not be expected to assume that the College's application to it for review would be successful, it did not suggest that that application could not succeed, was not bona fide, or could or would not be decided in the near future. It had recognised the link between the College's nomination application and the appellants' application for review by awaiting the delegate's decision on the College's application. Thus, it is not apparent how the purpose of s 360(1) of the Act would be served by the Tribunal refusing the appellants' application for review when the College's application to it was pending.

A Tribunal hearing is not like an adversarial proceeding before a Court where a party may be held to their election of one course of procedure rather than another. The possibility of another nomination becoming available was known to the Tribunal, which was not bound by technicalities, legal forms or rules of evidence and was enjoined to act according to substantial justice and the merits of the case - s 353 of the Act as it then was.

1. The applicant referred to the following parts of the transcript of the hearing before the Tribunal (Tribunal transcript), which disclosed the applicant made it clear to the Tribunal he was obtaining a new nomination:

(a) The possibility of the applicant obtaining a new nomination was discussed in some detail at the hearing. The applicant was aware he needed to find a new employer within 60 days of finishing to work for the original employer (Tribunal transcript 13.14).

(b) The applicant was finding it difficult to obtain a new nomination and decided to study instead (Tribunal transcript 13.31),

(c) The applicant studied until he was offered a nomination from a former employer and started working with them on a bridging visa (Tribunal transcript 14.22-48).

(d) The Tribunal told the applicant the new nomination had been refused, and the refusal was under review (Tribunal transcript 15.12-22).

1. The applicant argued the reasonableness of waiting for the outcome of the nomination review was self-evident on the facts of the case before the Tribunal and, as was made clear in Li per Hayne, Kiefel and Bell JJ at [76]. A Court may infer unreasonableness from the lack of an evident and intelligible justification for the way in which a discretion was exercised.

1. The Minister submitted the Tribunal did not fall into error for the following reasons:

(a) Legal unreasonableness has a high threshold ([23] of his written submissions).

(b) Significantly, despite being represented by a migration agent, the applicant did not make any application or request for an adjournment of the review on the basis his employer had applied for review of the refusal of nomination. In the absence of a request for an adjournment, it cannot be argued the Tribunal's failure to adjourn the review crossed the high threshold of legal unreasonableness ([24] of his written submissions).

(c) It is well settled the Tribunal has no obligation to afford every opportunity to an applicant to present the best possible case or to improve on evidence: Li at [82]. This is especially so in circumstances where the issues before the Tribunal were whether a ground for cancellation of the applicant's visa existed, and if so, whether the Tribunal should exercise its discretion in cancelling the visa ([26] of his written submissions).

1. The Tribunal's duty to review was made against the backdrop of two legislative provisions which operated at that time being:

(a) Section 353(b) of the Act which provided that 'the Tribunal, in reviewing a Part 5 - reviewable decision...shall act according to substantial justice and the merits of the case.'

(b) Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provided that in carrying out its function the Tribunal must pursue the objective of providing the mechanism of review that is fair, just, economical, informal and quick.

1. The question of whether it was unreasonable, as contended for by the applicant, for the Tribunal not to await the outcome of the review of the nomination refusal, also needs to be examined against the circumstances of the case. I this case the applicant was represented by a migration agent who attended the hearing before the Tribunal. The migration agent did not inform the Tribunal as to an anticipated timeframe when there would be a review of the nomination refusal. Further, the migration agent did not seek an adjournment or request that the Tribunal await the outcome of the review of the nomination refusal. These are important matters as it needs to be borne in mind that it is for the applicant to present his case before the Tribunal.
2. The decisions of Li and KC concerned situations where the applicants had in fact sought an adjournment to await an outcome of an event and the Tribunal had refused to grant the adjournment.
3. I find, it was not for the Tribunal to make the applicant's case out for him, especially in circumstances where the applicant was represented by a migration agent The applicant did not request that the Tribunal await the outcome of the review of the nomination refusal. The Tribunal had a discretion to finalise the review or delay the review (Li). The Tribunal needed to exercise its discretion having regard to the scope and purpose of the Act (Li at [85]), the substantive justice and merits of the case and as informally and quickly as possible, as required by s 2A of the AAT Act. Therefore, I find that it was not unreasonable for the Tribunal not to await the outcome of the review of the refusal of the nomination application before exercising its discretion as to whether to cancel the applicant's visa under s 116 of the Act.

1. Given my reasoning that no jurisdictional error is disclosed, I do not need to consider the question of futility. However, given that the parties addressed me on this issue, I will deal with futility.
2. The Minister submits if and to the extent the Tribunal decision was affected by jurisdictional error, the Court should exercise the discretion not to grant relief on the ground of futility. In support of that contention, the Minister relies on two arguments, as follows:

(a) the applicant's 457 visa had ceased on 12 April 2022 and there is no statutory power to extend the period in which a subclass 457 visa is in effect: see ss 37A(2), 133(2) and 134D(2) of the Act and Samah v Minister for Immigration & Anor [2020] FCCA 2868 at [85] and [86];

(b) the class of 457 visa was repealed on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) and the Tribunal cannot substitute a different visa class outside of the class of the visa for which the applicant originally applied: ss 31, 45, 46 of the Act; Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31 at [36]; cited in Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 939 at [44(c)].

1. The applicant was granted the visa on 12 April 2018, a copy of which is annexed to the Minister's submissions dated 4 February 2025. It is uncontentious that the applicant's visa expired on 12 April 2022.
2. I do not accept the applicant's supplementary submissions in reply on futility set out at [2] and [3], that the provision of Item 1222(4)(c) of Schedule 1 support an argument that the Tribunal has power to set aside a cancellation decision made under s 116, even after the visa would have expired. This is obvious by looking at the words used in Item 1222(4)(c).
3. For the reasons set out in [32(a)] of this judgment I accept there is no statutory power to extend the period. I also accept for the reasons set out in [32(b)] of this judgment, the class of 457 visa was repealed and the Tribunal has no power to substitute a different visa class.
4. Further I note that even if the matter was remitted to the Tribunal, and the Tribunal made a decision, the applicant would not be entitled to apply for a student (Temporary Class TU) visa, because he would not be able to satisfy Item 1222(4)(b) of schedule 1 of the Regulations.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

1. The Minister seeks costs in the amount of $9,690 (exclusive of GST), which is above the applicable scale amount of $8,371.30 specified in Item 3 of Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Minister, in support of his application for costs relied on an affidavit of Ms Mengqi Ren affirmed on 7 March 2025, in which Ms Ren said:

I say that the amount of $9,690.00 was reasonably and properly incurred having regard to the work done in relation to the proceeding. This includes, but is not limited to, attending to the following tasks that resulted in the costs incurred by the Minister being higher than contemplated by the Court's rules:

1. Agreeing to and facilitating an amendment to the Court timetable, made on 16 January 2025;

2. Reviewing the applicant's amended application filed 13 May 2021, which pleaded one new ground;

c. Corresponding with the applicant's representative in relation to issue of futility;

1. Reviewing the applicant's supplementary written submissions filed on 18 February 2025;
2. Settling, filing and serving the Minister's supplementary outline of submissions filed on 4 March 2025;
3. Additional professional fees which were incurred in the day to day carriage of the proceeding before the Court with skill, care and responsibility.

1. The applicant opposed the Minister's claim for costs above the scale and noted the additional costs incurred by 'agreeing to and facilitating an amendment to the Court timetable, made on 16 January 2025' resulted from an error by the Court in sending the listing notice to the wrong address for the applicant. Further, the applicant said the amendments were part of the standard procedure for applications that have been waiting in the Court's list for lengthy periods of time.
2. The Full Court in Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 (Mortimer CJ, Colvin and Dowling JJ) (Gehlert) at [24] makes clear the Court has a general jurisdiction to award costs, the exercise of which involves a discretionary power. The general approach is that a successful party should be compensated for their costs to the extent that is 'fair and just in the circumstances' (Gehlert [23], citing Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67] (McHugh J); Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [25] and [27] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ)).
3. I note it is not reasonable to visit upon the applicant the additional cost the Minister may have incurred in agreeing to and facilitating an amendment to the Court timetable, as this was required by the Court, and not a result of an action by the applicant.
4. I note that the affidavit of Ms Ren simply says that approximately $12,420 was incurred on a solicitor-client basis and fails to itemise the costs. This presents a difficulty for the Court in assessing the reasonableness of the costs incurred. In those circumstances, I am not satisfied it is 'fair and just in the circumstances' to award costs in the amount of $9,690. In those circumstances, I order the applicant pay the Minister the scale costs of $8,371.30 for costs and disbursements incurred in relation to this matter.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.