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[2021] FCA 1017
Federal Court of Australia
2021-08-25
Griffiths J
Original judgment source is linked above.
Introduction 1 The applicants seek leave to appeal from interlocutory orders and the judgment of the Federal Circuit Court of Australia dated 28 January 2020 (see Goswami v Minister for Immigration [2020] FCCA 138). The applicants are self-represented. The parties agreed to the matter being dealt with on the papers.
Summary of background facts 2 The first and second applicants are husband and wife respectively and citizens of Nepal. 3 Relevantly, the primary judge proceeded under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) and dismissed with costs an application for an order to show cause made pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). Rule 44.12(2) of the FCC Rules specifies that a dismissal under r 44.12(1)(a) is interlocutory in nature. Accordingly, the applicants require leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 4 Before the primary judge, the applicants had sought judicial review of a decision dated 12 June 2019 of the Administrative Appeals Tribunal (AAT), which affirmed a decision of the first respondent's delegate to refuse to grant the applicants Employer Nomination visas under s 65 of the Act. 5 Drawing heavily on the primary judge's reasons for judgment, the key background facts are as follows: (a) On 12 December 2016, the first applicant lodged an application for an Employer Nomination (Subclass 186) visa, which included the second applicant as a dependent member of the first applicant's family unit. (b) In the visa application, the first applicant nominated himself for the position of contract administrator. He was sponsored by Tiles Links Pty Ltd (the sponsor). (c) On 4 May 2017, the Minister's Department invited the applicants to comment on information received by the Department which indicated that the sponsor's nomination had been refused, but no response was ever provided by the applicants. (d) On 26 May 2017, the applicants' migration agent informed the Department that the sponsor had appealed a decision of another delegate to refuse its nomination of the applicant and asked the Department to "hold on the [applicant's] decision until the AAT makes a decision on nomination of the employer". (e) On 5 June 2017, the delegate refused to grant the applicants Employer Nomination visas because the first applicant was not the subject of an approved nomination and therefore did not satisfy cl 186.223(2) of the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, cl 186.223(2) required that the Minister had approved the sponsor nomination. The delegate found the sponsor's nomination had been refused on 4 May 2017. (f) On 22 June 2017, the applicants applied to the AAT to review the delegate's decision and provided a copy of that decision to the AAT. (g) On 10 April 2019, the applicants were invited to attend a hearing before the AAT, but on 30 April 2019 the first applicant expressly declined the invitation to appear. (h) On 24 May 2019, the AAT invited the first applicant pursuant to s 359A(1) of the Act (the s 359A invitation), by way of correspondence to his authorised recipient, to comment on particulars of information, namely that the first applicant was not the subject of an approved nomination. (i) On 7 June 2019, the first applicant's representative responded that he "has nothing to say and asked the AAT to take its decision". (j) On 12 June 2019, the AAT affirmed the delegate's decision to refuse to grant the applicants Employer Nomination visas. The AAT found the first applicant did not meet cl 186.223(2) of the Regulations because he was not the subject of an approved nomination and therefore could not satisfy the requirements for the grant of the visa. 6 On 8 July 2019, the applicants filed an application in the Federal Circuit Court seeking judicial review of the AAT's decision. 7 On 28 January 2020, the judicial review application was dismissed with costs pursuant to r 44.12(1)(a) of the FCC Rules. In summary, the primary judge held: (a) the grounds in the application for judicial review had no substance and that the "essential difficulty" for the applicants was, at the time the matter came before the AAT for hearing, the first applicant did not have an approved sponsor and therefore "the AAT's hands were tied and it made the only decision available to it" (at [23]-[24]); (b) the allegation in ground one that the AAT unreasonably refused to "hold" the review application could not succeed because the applicants had not requested that their review be adjourned by the AAT. To the contrary, the first applicant had indicated to the AAT that it should proceed to make a decision on the papers (at [25]-[26]); (c) ground two could also not succeed because the applicants' contention that the AAT's decision was based on "no evidence" could not be made out in circumstances where the AAT had information before it that indicated the first applicant was not the subject of an approved nomination (at [27]-[29]); and (d) even if some error was established in the AAT's adopted procedures, the Court would have refused relief in the exercise of discretion on the basis of futility as the first applicant "would be in the same position as he was when the AAT dealt with the matter" (at [30]).
Application for leave to appeal 8 On 11 February 2020, the applicants lodged in this Court an application for leave to appeal, accompanied by an affidavit of the first applicant which annexed a draft notice of appeal containing three proposed grounds of appeal. 9 As the Minister pointed out, the applicants' leave to appeal application confronts the following threshold difficulties: (a) First, despite having more than 18 months since first commencing these proceedings in this Court, the proposed grounds of appeal are meaningless because they are devoid of any particulars and are liable to fail for that reason alone (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] per Reeves J; FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 864 at [24] per Griffiths J). (b) Secondly, the applicants also require leave to rely on the three proposed grounds of appeal because they were not raised before the primary judge. Leave may be granted where a point "clearly has merit" and there is no prejudice to the respondents in permitting it to be agitated (see VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] per Kiefel, Weinberg and Stone JJ; SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 at [46]-[47] per Kenny J and the cases cited therein). As the grounds lack any particulars to be meaningful and (for the reasons outlined below) are devoid of merit, there would be no utility in granting the applicants' leave to argue them for the first time on appeal. I accept the Minister's submission that he should not be prejudiced by being required to defend an unmeritorious appeal. (c) Thirdly, proposed grounds two and three are both misdirected at the AAT's decision in circumstances where this Court only has jurisdiction to review the primary judge's decision. (d) Fourthly, in circumstances where it is not in dispute that the applicant is not the subject of an approved nomination, he cannot meet the requirements of cl 186.223(2) of the Regulations which is a precondition for the grant of the visa. Accordingly, as it was before the primary judge, it would be futile to remit the matter to the AAT. The refusal of the sponsor's nomination and the AAT's subsequent affirmation of that decision is fatal to the applicants' application. 10 It might be noted that on 20 July 2021 the Court made orders requiring the applicants to file and serve an outline of written submissions by 3 August 2021. It appears that on 3 August 2021, they attempted to file written submissions. They were not accepted for filing because they were provided in the form of a letter, as opposed to the correct form prescribed by the Court, pursuant to r 35.19 of the Federal Court Rules 2011 (Cth). In the interests of fairness, having regard to the fact that the Minister referred to the applicants' submissions in his outline of written submissions, I have reviewed a copy of the brief document which was rejected on 3 August 2021. That document does not strengthen the applicants' application for leave to appeal. The document states that the first applicant worked for the sponsor for "more than 4 years" until it was suddenly shut down and he was "totally unaware" about what to do next. The document also stated that the couple had a child, who was now eight months old. These purported submissions, whilst understandable, do not identify any error in the primary judge's decision. The applicants did not file any written submissions in reply. 11 For the following reasons, I consider that the three proposed grounds of appeal lack sufficient merit to warrant a grant of leave.
Proposed ground one 12 This ground alleges the primary judge "failed to discern an error of law" in the AAT's decision. The applicants have not identified any alleged error of law committed by the AAT that was overlooked by the primary judge, and none is apparent. At its highest, this ground merely expresses disagreement with the AAT's decision and the primary judge's dismissal of the judicial review application. This is an insufficient basis to grant leave to appeal.
Proposed ground two 13 This ground alleges the AAT erred in failing to give "proper consideration" to the circumstances of the sponsor, but no details or particulars are provided to explain what a "proper consideration" would entail, how the AAT's approach reveals jurisdictional error or how the primary judge erred in this regard. 14 The "circumstances of the sponsor relevant to … [the applicant's] visa application" were addressed in an affidavit filed by the Minister on 9 January 2020 in the proceedings below. This affidavit indicated that the sponsor had on 8 July 2019 discontinued the proceedings it commenced in the Federal Circuit Court seeking judicial review of the AAT's decision to refuse the sponsorship approval. In any event, it was never in dispute that the first applicant did not have an approved sponsor. Accordingly, the first applicant could not satisfy cl 186.223(2) of the Regulations, which was plainly appreciated by the primary judge. 15 The applicants have known since 4 May 2017 (at the latest) that the sponsor's nomination had been refused but provided no response to the delegate when expressly asked to comment on this issue. In response to the AAT's s 359A invitation to comment on this issue on 24 May 2019, the applicants' representative informed the Tribunal that they "had nothing to say" and asked the Tribunal to make its decision on the papers. As noted above, the applicants expressly declined the invitation to participate in a hearing before the AAT. 16 As the primary judge held, the AAT's decision was a straightforward application of cl 186.223 of the Regulations and was without error. Proposed ground two is therefore wholly without merit.
Proposed ground three 17 This ground alleges the AAT affirmed the delegate's decision in breach of the rules of procedural fairness and natural justice. No details are provided in support of this proposed ground. 18 In any event, the proposed ground is unsustainable. The AAT's procedural fairness obligations are exhaustively set out in Pt 5, Div 5 of the Act. As noted above, the AAT: (a) invited the applicants to appear before it at a hearing to give evidence and present arguments pursuant to s 360 of the Act, but they declined the invitation; and (b) validly invited the applicants under s 359A of the Act to respond to information that the applicant was not the subject of an approved nomination, but they responded by informing the AAT they had nothing to say and that it should make its decision. 19 In the above circumstances, there is simply no merit in the applicants' claim in proposed ground three that there was a denial of natural justice or want of procedural fairness in the AAT's processes.
Conclusion 20 For these reasons, there is insufficient merit in the proposed grounds in the draft notice of appeal to warrant the grant of leave and, in any event, it would be futile to remit the matter to the AAT because of the first applicant's inability to satisfy cl 186.223(2) of the Regulations. Accordingly, the application for leave to appeal will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.
Goswami
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs