Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 4 The criteria for subclass 186 visas are relevantly set out in cl 186.223 of the Migration Regulations 1994 (Cth) as follows: 186.223 (1) The position to which the application relates is the position: (a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and (b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and (c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa. (2) The Minister has approved the nomination. (3) The nomination has not subsequently been withdrawn. (3A) … (4) The position is still available to the applicant. (5) The application for the visa is made no more than 6 months after the Minister approved the nomination. 5 On 27 July 2018, the Minister advised Ms Begum that the nomination submitted to the relevant Department by the nominator listing her as its nominee had been refused and accordingly Ms Begum's visa application could not be approved. The letter stated that if Ms Begum did not respond within 28 days and her application was not withdrawn, her visa application would be refused. 6 On 28 August 2018, the delegate refused to grant Ms Begum the subclass 186 visa. The delegate found that, as the nomination application was refused on 27 July 2018, cl 186.223(2) of Sch 2 to the Migration Regulations was not met. As a consequence, the delegate also found that Ms Begum's husband and daughter could not be granted visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a subclass 186 visa. 7 On 16 September 2018, the applicants lodged with the Tribunal an application for a review of the delegate's decision. On 2 April 2020, the Tribunal determined that it was not satisfied that the criteria set out in cl 186.223(2) and (4) of Sch 2 to the Migration Regulations were met and issued its decision record (or DR). After noting the requirements of cl 186.223, the Tribunal said (emphasis in the original): 13. On 3 March 2020, the review applicants were invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 9 April 2020 at 10:00 am as one of several cases to be heard concurrently. The Tribunal notes that at the time of this decision the applicants have not responded to this invitation. 14. On 10 March 2020, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 15. The information related to information before the Tribunal that shows the nominator is no longer trading. Information from the Australian Securities & Investments Commission (ASIC) register shows that Swissplus Pty Ltd was deregistered on 2 June 2019. There is no evidence before the Tribunal that the company's registration has been reinstated with ASIC since that time. 16. The Tribunal explained in its letter of 10 March 2020, that this information is relevant because it suggests that the nominated position is not available to the applicant. If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.186.223(4) that the position is still available to the applicant and further under r. 186.223(2) the Tribunal may not be satisfied that the applicant is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed. 17. The Tribunal's letter of 10 March 2020 additionally stated the following: 'An invitation to attend a scheduled hearing was sent to you on 3 March 2020. Please note, however, that if you do not respond to this letter within the stated or any extended timeframes granted, you will lose your right to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review and the hearing will be cancelled. You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 24 March 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator. If you cannot provide your written comments or response by 24 March 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 24 March 2020 and you must state the reason why the extension of time is required. We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted. If we do not receive your comments or response within the period allowed or as extended, 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.' 18. This invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by 24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicants comments and the review applicants would lose any entitlement they may otherwise have had under the Act. 19. As at the time of this decision, the review applicants have not provided the comments within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the applicants comments. 20. On the evidence before it, The Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations. 21. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met. 8 The grounds of review before the FCCA were set out in Begum at J[11] as follows (as written): (1) The Tribunal decision was affected by erred of law, procedural fairness, and jurisdictional error in relation to exercise its power to consider granting Employer Nomination (Permanent) (Class EN). The tribunal failed to consider Migration act and regulations rather consider Ministerial Direction No 69, which should be assessed as secondary criteria for the grant of a student visa sub class 186 Visa. Particulars: The tribunal did not act on its judgement rather rely on Ministerial Direction 69 and influence by the delegates decision. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter by considering secondary criteria Direction 69 of the Minister, rather failed to consider relevant information in the applications and other related factors surrounding sponsorship application and its approval as a nominated position as cook( ASZSCO 351411). The tribunal did not provide an opportunity to seek further employment nomination from different employer to comply /meet cl 186.223(2) visa sponsorship requirements. (2) The Tribunal made erred law and denial of natural justice not to provide an opportunity to seek employer and it was not consider the circumstances and did not seek any information's from the employer, why and what circumstances the business was not registered with the ASIC. The Tribunal did not explore or sought any clarifications from the employer and did not consider- COVID 19- pandemic global issues in relation to seek further and new employer for the position as a Cook (ASZSCO 351411). Tribunal erred in finding that the Tribunal had afforded procedural fairness to the applicant, and/or erred in finding that the Tribunal had complied with the procedures it was required to follow under the Migration Act 1958 ("the Act"). Particulars (a) Tribunal should have found that, by not disclosing particulars of the information's for liquidations the restaurant sponsoring him alleged migration fraud, and document fraud by not paying Workcover, tax and others (b) the Tribunal failed to accord procedural fairness (the provision of highly prejudicial information which is credible, relevant and significant to the decision to be made (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24)) not being a matter with which Part V, Division 5 of the Act deals with.); (c) and/or failed to comply with section 357A(3); (d) and/or failed to comply with section 359A(l) of the Act (as informed by section 357A(3), or in a manner consistent with section 357A(iii). The formulation of the principle applied in VEAL may be traced to the observations of Brennan J in Kioa v West (1985) 159 CLR 550 at 629 that, as a matter of procedural fairness: ... in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. In VEAL the High Court emphasised (at [17]) that: "Credible, relevant and significant" must ... be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached. and said (at [27]): ... to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason. Similarly, the question of whether relevant or, more to the point, relevant for the applicant to know about, cannot be answered merely by pointing to the fact that the AAT appeared to reach its decision without taking them into account or by appearing sympathetic to the applicants own representations. That is not to suggest that AAT might have been subconsciously affected by the existence of the accusations. As the High Court pointed out in VEAL (at [19]) such a consideration is beside the point: ... asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached. Were it not for the enactment of s 357A(1) I would accept the proposition in particular (i) that jurisdictional error had been committed by the AAT because it denied procedural fairness to the applicant in the way identified in VEAL. As will become apparent, I take the view that the AAT was obliged to disclose sponsors Liquidation for non-payments of Govt tax and others which was beyond the control of the applicant in any event under s 359A of the Act, and the accusations it contains, may also have a further significance, even if the failure to disclose them was shielded by the operation of s 357A of the Act and even if disclosure of the information's was not obliged by s 359A by the sponsor. (3) The tribunals decision was not supported and fully tested Hasran Vs MIAC [2010] FCAFC case. [Paragraph 19 of the AAT decision]. The tribunal failed to consider applicants sponsor Swissplus Pty Ltd ACN 161 247 628's winding up application by the Deputy Commissioner of Taxation On 16 June 2017 and reasons behind this winding up application which was unknown to the applicant and it was beyond the applicant's control. The tribunal did not provide an opportunity allow applicant further time to seek new employer for the nomination of the position as cook (ASZSCO 351411) from a new employer. The tribunal did not consider third party fault in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 [Judgment of Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and CrennanJJ] case. (4) The tribunal failed to warned refusal of employer nomination 186 visa and failed to provide an opportunity to allow applicant to seek further nomination from different employer. The applicant was unable to get any benefit for the Pandemic issues-COVID 19 issues surrounding factors such as lockdown states and territory, and closure of business in the state and territory by the govt orders. 9 The FCCA Judge found at J[12]-[15] that (as written): The four grounds substantially overlap and in reality, seek impermissible merits review and advance arguments without substance. It is apparent on the face of the Tribunal's reasons that the Tribunal complied with its statutory obligations in the conduct of the review and correctly identified the relevant law. The applicant was on notice of the want of an approved nomination because of the Delegate's decision. Further the Tribunal wrote to the applicant on 10 March 2020 inviting the applicant to comment on the sponsor being deregistered and its impact on the need for an approved nomination. There was no response to the invitation. It was reasonable for the Tribunal to proceed to determine the matter and no adjournment could have overcome the want of the approved nomination. The applicant's want of control over the approved nomination does not identify any error. There is no apparent denial of procedural fairness or natural justice by the Tribunal. The grounds have not identified any arguable case of relevant error by the Tribunal. The grounds otherwise fail to recognise or address the essential criteria that the applicant failed to meet, which was an approved nomination in accordance with cl 186.233(2) [sic] of Sch 2 of the Migration Regulations 1994 (Cth). In these circumstances, no arguable case of relevant error is disclosed by the amended application. The Court is satisfied that the amended application has not raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court's powers in rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). 10 The FCCA Judge dismissed the applicants' application. Rule 44.12(2) of the Federal Circuit Court Rules characterises the FCCA Judge's decision as an interlocutory decision.

Principles applicable to application for leave to appeal 11 In SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [18]-[23], Beach J set out the appropriate approach to applications for leave to appeal decisions made under r 44.12 of the Federal Circuit Court Rules as follows: The factors that I must apply in determining whether to grant leave to appeal are, whether in all the circumstances, the decision below is attended with sufficient doubt to warrant its reconsideration, and whether substantial injustice would result if leave were refused supposing the decision to be incorrect (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399). Expressed slightly differently, leave to appeal will be granted where there is a reasonably arguable case that the decision of the court below is affected by an appealable error and a grant of leave is necessary to remedy a substantial injustice (Re CSR Ltd (2010) 183 FCR 358 at [5]). Leave will be more readily granted where an interlocutory decision determines a substantive right as distinct from a mere matter of practice and procedure (SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 (SZTGS) at [20] per Gleeson J). Let me deal with a separate matter of principle relevant to the nature of the task performed by the primary judge under r 44.12. Her Honour proceeded under r 44.12(1)(a) which provided: (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application… The primary judge's decision dismissing the applicant's application was because she was not satisfied that the applicant had raised an arguable case for the relief sought. An appeal against a finding of an absence of satisfaction as to a matter is subject to similar principles that apply to an appeal from a decision involving the exercise of discretion. As Gleeson J said in SZTGS at [23]-[24]: 23. In other contexts, an appeal against a finding of satisfaction [or an absence of satisfaction] as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello (2003) 215 CLR 643 at [27]. 24. Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge: a. acted upon a wrong principle; b. allowed extraneous or irrelevant matters to guide or affect him; c. mistook the facts; d. did not take into account some material consideration; or e. reached a result that is plainly unreasonable or unjust: House v The King (1936) 55 CLR 499 at 504-505. There is also an additional residual dimension beyond the requisite state of an absence of satisfaction being reached. The primary judge's decision to dismiss the application, after not being relevantly satisfied, is itself an exercise of discretionary power under r 44.12(1)(a), thereby requiring identification of appealable error of the type discussed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ (House v The King) (SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 (SZSLD) at [21] per Griffiths J).

Application for leave to appeal 12 The Minister was represented at the hearing and filed written submissions on 7 September 2021. 13 The draft notice of appeal sets out grounds identical to the grounds set out in Begum at [11]. Despite Ms Begum being given multiple opportunities to do so, she has not filed any amended application for leave to appeal, evidence or submissions. The Minister accepts that the proposed grounds should be understood to be that the FCCA Judge erred by not accepting that the Tribunal erred in the manner set out in the grounds. 14 Ms Begum was not represented by a lawyer at the hearing and she appeared in person. 15 Orders for preparation of this application for hearing were first made on 18 February 2021. At the first case management hearing in July 2021, Ms Begum sought (and was given) time to identify and instruct a lawyer, with the hearing being set down for 7 October 2021. On 1 October 2021, Ms Begum sent an email to the Court requesting that the matter be set down in 2022, having regard to the fact that she lived in a suburb of Sydney that was in an "LGA of concern". Such suburbs were subject to health orders restricting movement due to the prevalence of the COVID-19 pandemic. She explained that she had not been able to leave her home during lockdown and she had been receiving counselling due to her anxiety and depression about the situation in Bangladesh and had not been able to attend to her matter. She (and her medical practitioner) said she was improving. On this basis, the Court listed the hearing date for 2 March 2022 and listed a case management hearing on 2 December 2021 to take account of the impact of the COVID pandemic on movement in Sydney and to make further timetabling orders if necessary. On 1 December 2021, Ms Begum advised the Court by email that, due to her father's death in the prior month, she had been upset and unable to prepare her case but she was content with the date of 2 March 2022 for hearing. Revised timetabling orders were made at the case management hearing held on 2 December 2021. However, on 22 February 2022, Ms Begum advised the Court that her mother-in-law in Bangladesh became ill in January 2022 and, on medical advice, she had travelled to Bangladesh to attend to her mother-in-law and she would not return to Australia until 5 March 2022. Over the Minister's objection, the hearing was then set down for 10 March 2022. 16 At the hearing on 10 March 2022, Ms Begum said that all of these things have made her depressed and unable to attend to instructing a lawyer. Having regard to the merits of the application (as to which see below), and the many opportunities given to Ms Begum, I did not consider it appropriate to further adjourn the matter. 17 Ms Begum offered no submissions when invited to do so and ultimately said that the fact that the nominator "did not maintain everything properly" was not her fault.

Consideraton 18 Although the FCCA Judge's reasons for dismissing the applicants' application for judicial review were brief, I am not satisfied that the FCCA Judge's decision is attended with sufficient doubt to warrant its reconsideration on appeal. 19 As noted by the FCCA Judge, the grounds of review (and now the proposed grounds of appeal) overlap. What follows takes into account submissions made by the Minister. 20 The FCCA Judge was correct to find that the grounds failed to address the critical issue before the Tribunal, the absence of an approved nomination (as required by cl 186.223(2)). Without an approved nomination, there was no jurisdiction for the delegate, or the Tribunal on review, to grant the subclass 186 visa to Ms Begum or the other applicants. Ms Begum's conduct is not relevant to the satisfaction of that criterion. 21 I perceive no error in the FCCA Judge's finding that the Tribunal identified the relevant law applicable to Ms Begum's application; it set out and had regard to the criteria in cl 186.223. As submitted by the Minister, Ministerial Direction 69 plainly does not apply to employer nomination visas. Rather, it applies to the assessment of the "genuine temporary entrant criterion" for student visas, not employer nomination visas. Accordingly, the FCCA Judge did not err in finding that Tribunal did not and should not have referred to that Direction. 22 I perceive no error in the FCCA Judge's finding that no adjournment (to allow Ms Begum to obtain a new nomination from another employer) could have overcome the want of an approved nomination relating to the position set out in Ms Begum's application for a subclass 186 visa. I accept the Minister's submission that the criteria in cl 186.223 could not be satisfied by reference to a nomination not declared in Ms Begum's visa application: see cl 186.223(1) and Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88]-[90]. 23 Further, an argument that it was the Tribunal's function to seek information from the employer concerning the circumstances leading to its deregistration has no reasonable prospect of success. It is for the applicant to provide evidence and arguments on the basis of which the Tribunal would make its decision. Further, on the evidence before the Tribunal, the employer had ceased to exist. The Minister's decision not to approve the nomination is not subject to review on the application of the visa applicant. 24 There is no perceptible error in the FCCA Judge's finding that it was apparent from the Tribunal's decision record (and in particular DR[13]-[19], see [7] above) that it had complied with its statutory obligations with respect to the conduct of the review. That is because: (a) By a letter dated 3 March 2020, the applicants were invited to attend a hearing on 9 April 2020 to give evidence and present arguments. They did not respond to the Tribunal's invitation to attend a hearing; (b) The applicants do not challenge the Tribunal's assertion that it sent a letter dated 10 March 2020 to the applicants' last known address. They also do not deny that they failed to respond to that letter. That letter notified the applicants that the information that the nominator was deregistered on 2 June 2019 was relevant because it suggested that the nominated position was not available to Ms Begum and the applicants were invited to comment. The letter advised that, if the Tribunal relied on that information together with other evidence before it, it may not be satisfied under cl 186.223(4) that the position was still available to Ms Begum. It further advised that, under cl 186.223(2), the Tribunal may not be satisfied that the application was subject to a nomination that had been approved by the Minister. The letter advised that, if the applicants did not respond, they would lose their right to respond to those issues at a hearing. They made no response; (c) The applicants were on notice from the delegate's decision that a dispositive issue on review would be the fact that the Minister had not approved the nominator's nomination relating to the position the subject of Ms Begum's visa application. The proposed grounds do not demonstrate an arguable case that there was a want of procedural fairness of the kind required by s 357A of the Migration Act 1958 (Cth) having regard to ss 359A or 360A or otherwise. 25 Further, if it be a fact that bad business practice (including fraud on the revenue of any kind) or mismanagement led to the winding up of the nominator, that has no bearing on satisfaction of the criterion in cl 186.223(2). The decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 does not support such an argument. SZFDE dealt with fraud of a migration agent which led to the visa applicants not attending a Tribunal hearing. That fraud, effectively a fraud on the Tribunal, impugned the integrity of the review process. 26 Any complaint that the Tribunal failed to notify the applicants that the employer nomination had not been approved has no prospect of success. First, the Minister's decision to refuse the nomination was made on 27 July 2018, before the delegate made its decision to refuse the subclass 186 visas, and therefore before the Tribunal process had started. The issue of the impact of the Minister's decision was raised in the letter dated 10 March 2020. 27 Having regard to these matters, I am satisfied that no substantial injustice would be visited on the applicants by refusing leave. It would be inutile to set aside the FCCA Judge's decision concerning the Tribunal's decision since Ms Begum cannot satisfy cl 186.223(2) in the absence of an approved nomination.

Costs 28 Liability for costs follows the event. In this case, the applicants' application for leave to appeal is refused and the application is dismissed. I understand the third applicant to be a minor. Accordingly, the usual order would be to the effect that the first and second applicants should pay the first respondent Minister's costs as agreed or taxed. 29 In the Minister's submissions filed on 7 September 2021, the Minister sought costs fixed in the amount of $4,000. At the hearing, the Minister's representative sought an amount of $6,000, noting the further work done in addressing the applicants' requests for adjournment and the need to attend a case management hearing. The Minister's representative suggested that as this amount was less than the amount allowable under item 15 of Sch 3 to the Federal Court Rules 2011 (Cth), it was unnecessary to provide the Court with an affidavit in support of the claimed costs. I did not accept that proposition; it is not consistent with the guidance provided in the Court's Costs Practice Note (GPN-Costs). 30 With leave, the Minister relied on an affidavit affirmed by Tom Hillyard on 14 March 2022 in support of the claimed lump sum costs order. Mr Hillyard is a solicitor employed by Sparke Helmore, the Minister's legal representative in these proceedings. Mr Hillyard has provided a summary of the work undertaken, although he has not provided evidence of the solicitors who engaged in that work, their seniority or hourly rates, as might normally be expected on such an application. Mr Hillyard gives evidence that the total costs incurred by the Minister are estimated to exceed $8,000 and says that the amount now claimed by the Minister represents a discount to the party and party costs that the Minister might otherwise be entitled to recover on taxation. 31 Despite the deficiencies in Mr Hillyard's affidavit, I will make the lump sum costs order sought on the following bases. I accept that it was necessary to perform the tasks identified in the affidavit. The amount claimed is less than the amount permitted for a short form bill of costs in item 15 of Sch 3 to the Federal Court Rules. I accept that it is an accurate reflection of the costs incurred by the Minister in a matter of this kind. Most importantly, it is not in the interests of the applicants that they be exposed to the costs of a taxation process having regard to the amounts involved. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.

SCHEDULE OF PARTIES NSD 4 of 2021 Applicants Second Applicant MOHAMMED AMIN Third Applicant TASHFIA LAIBAH