Kaur v Minister for Immigration, Citizenship and Multicultural Affairs

Background

1. The relevant background was set out by the Tribunal member at [2]-[6] of the tribunal decision and by the primary judge at [1]-[17] and [26]-[37] of the primary judgment. I note the following salient matters from those decisions.
2. On 3 October 2017, Mrs Kaur applied for a Temporary Work (Skilled) (Class UC) (Subclass 457) visa. Her husband and son were included in that application as accompanying family members. The appellants are citizens of India.
3. In the visa application Mrs Kaur identified the sponsoring employer as the Australian Institute of Technical Training Pty Ltd (AITT). Mrs Kaur identified her nominated position as accountant.
4. For the visa to be granted, Mrs Kaur was required to satisfy the relevant criteria in subclause 457.223(4) of Schedule 2 of the Migration Regulations 1994 (Cth). That subclause provided: (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased under regulation
5. It was not in dispute that Mrs Kaur did not have an approved nomination and did not satisfy the relevant criteria.
6. On 18 March 2018, the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) came into effect (Amending Regulations). The Amending Regulations repealed Subclass 457 visas. No nominations for that visa were accepted from that date.
7. On 25 September 2018, the Minister's delegate wrote to Mrs Kaur advising that her nominated employer (AITT) did not have an approved nomination for her and accordingly her visa application could not be approved. The correspondence provided Mrs Kaur with an opportunity to respond within 28 days. The appellants did not respond.
8. On 3 November 2018, the delegate found that the criteria for the grant of the visa were not met because Mrs Kaur was not the subject of an approved nomination. The applications of Mrs Kaur's husband and son were also denied. Those applications were family member applications dependant on Mrs Kaur.
9. On 21 November 2018, the appellants applied to the Tribunal to review the delegate's decision.
10. On 18 February 2022, the Tribunal sent the appellants a letter inviting them to attend a telephone hearing before the Tribunal on 8 April 2022.
11. On 2 March 2022, the Tribunal wrote to the appellants inviting them to comment or respond to the fact that AITT's application for approval of Mrs Kaur's nominated position was refused by the delegate and that refusal was affirmed on review by the Tribunal. The appellants were invited to respond to the letter or request an extension of time by 16 March 2022. The appellants did not respond until 17 March 2022. The failure of the appellants to respond by the deadline meant they lost their entitlement to appear at the Tribunal hearing and provide evidence and argument: primary judgment [74], ss 359C, 360(2) & 363A of the Migration Act 1958 (Cth). However, they were permitted to appear, and this is addressed further below.
12. In the response of 17 March 2022, Mrs Kaur requested more time to find a new sponsor so she could lodge a new application. Mrs Kaur explained that the COVID-19 pandemic had negatively impacted AITT and meant that she had to look for a new sponsor.
13. The matter was heard before the Tribunal on 8 April 2022. The appellants appeared at the hearing (by telephone) to give evidence and present arguments.
14. By a statement of decision and reasons dated 8 April 2022 the Tribunal affirmed the decision of the delegate to refuse the visa. The Tribunal decided that there was no evidence to demonstrate there was an approved nomination in place, and accordingly the visa requirements were not met. The Tribunal also refused to grant the appellants an extension of time to find a new employer as a new nomination would not fulfil the requirements of a Subclass 457 visa, because the Amending Regulations meant no new applications were being accepted.

dECISION OF THE FEDERAL CIRCUIT AND FAMILY COURT

1. On 4 May 2022, the appellants applied to the Federal Circuit and Family Court for judicial review of the Tribunal decision. That application was heard on 23 March 2023.
2. As set out above the primary judge assessed the appellants' grounds of review "as broadly as possible" to identify four issues and two additional issues: see primary decision at [40] and as set out above at [2] and [3]. The primary judge dealt with each of those issues as follows.

Whether the Tribunal complied with its procedural fairness obligations

1. In considering whether the appellants were afforded procedural fairness, the primary judge set out the steps taken by the Tribunal to assist the appellants and hear their arguments. This included that the Tribunal had: (a) informed the appellants of adverse information; (b) invited the appellants to attend a hearing and listened to their evidence; (c) questioned the first and second appellants; (d) actively sought information from the appellants; and (e) was impartial and unbiased: primary judgment, [42]. The primary judge concluded that the Tribunal complied with its procedural fairness obligations and there was no jurisdictional error: primary judgment, [43]

Whether the Tribunal failed to consider the first applicant's "exceptional circumstances"

1. The primary judge stated that it was "not entirely clear" what, if any, exceptional circumstances were said to apply to the appellants: primary judgment, [45]. In, any event, the primary judge concluded that the Tribunal "considered all the evidence given by the [appellants] … in relation to their particular circumstances". Therefore, there was no jurisdictional error: primary judgment, [45] - [48].

Whether the Tribunal's decision to refuse to grant the first applicant additional time to find a new sponsor was legally unreasonable

1. The primary judge found that the Tribunal had a statutory discretion to adjourn the review. The Tribunal had denied the appellants' application to it for additional time to find a new employer. The primary judge said that the Tribunal had an obligation to provide an "intelligible justification" for the exercise of its discretionary power to refuse an adjournment citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 and Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332, [63], [76].
2. The primary judge determined that the Tribunal refused the adjournment on the grounds that it would be futile to grant any additional time, because it would not have assisted in meeting the requirements for the visa application under review: primary judgment, [54] - [58]. The primary judge found there was an "intelligible justification" for the refusal and there was no jurisdictional error: primary judgment, [61].

Whether the Tribunal "took too long" to assess the applicants' review application

1. The primary judge found that it took approximately three and a half years for the Tribunal to process and assess the appellants' review application. The primary judge accepted this was a "significant" delay. However, the primary judge found that there is no legal authority that imposes a timeframe on the Tribunal for a matter to be heard and decided (citing Minister for Immigration v Eshetu (1999) 197 CLR 611; Li). Therefore, there was no jurisdictional error on the part of the Tribunal.

Whether the Tribunal erred by allowing the applicants to appear at a hearing before it

1. As outlined above, the Tribunal wrote to the appellants on 2 March 2022 seeking comment or response by 16 March 2022 regarding the fact that AITT's application for approval of the nominated position was refused by a delegate (and affirmed on review by the Tribunal). They did not respond until 17 March 2022.
2. The primary judge determined that because the appellants did not request an extension or respond before the deadline, they lost any right to appear at a Tribunal hearing and the Tribunal erred by allowing them to do so: citing ss 359C, 360(2) & 363A of the Act; Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; 251 FCR 110, [40], [53], [55]-[57], primary judgment, [76].
3. However, the primary judge concluded, citing Lee v Minister for Immigration and Citizenship [2008] FCA 162 at [20] and [22], that allowing the appellants to appear at the hearing did not amount to jurisdictional error. The primary judge found that although the Tribunal exceeded its jurisdiction, the appellants were not denied any procedural fairness, rather they were provided more of an opportunity than they should have had. There was no jurisdictional error: primary judgment, [77] - [79].

Futility in remitting the matter to the Tribunal

1. Lastly, the primary judge noted that even if he was wrong in finding there was no jurisdictional error, it would be futile to remit the matter to the Tribunal. The Amending Regulations meant that subclass 457 visas were closed to new applicants from 18 March 2018. From that date, no new nominations could be lodged. Therefore, after 18 March 2018, it was no longer possible for Mrs Kaur to obtain an approved nomination. As there was no approved nomination or application before 18 March 2018, the primary judge found that it was futile to remit: primary judgment, [82] - [86].

APPEAL TO THE FEDERAL COURT

1. The appellants appealed the primary judgment by notice of appeal filed in this Court on 17 April 2023. The third appellant, Mr Surkhaab Singh Sandhu, is a child, therefore the Court appointed Mrs Kaur as his litigation representative for this proceeding on 8 June 2023
2. The appeal was the subject of timetabling orders dated 1 May 2023. Those orders provided for the preparation and filing of an appeal book by the Minister, the exchange and filing of submissions and a bundle of authorities and legislation. The matter was listed for hearing before me on 22 August 2024. The appellants appeared by audio-visual link.
3. At the hearing the appellants advised me that the second appellant, Mr Sarbpreet Singh Sandhu, would speak on behalf of all of the appellants (including Mrs Kaur as litigation representative for her son). However, I did invite both Mrs Kaur and Mr Sarbpreet Singh Sandhu to address me on any matters in support of their appeal.

adjournment

1. At the commencement of the hearing the appellants made an oral application to adjourn the appeal on the basis that they had made a different visa application. That application was described by the appellants as a "DAMA" visa. I understood that to mean a visa that is part of the "designated area migration agreement" scheme for regional areas. That adjournment was opposed by the Minister.
2. The Minister contended, and the appellants conceded, that the different visa application was not relevant to the appellants' grounds of appeal or to this appeal in any other way. I accepted that contention and concession. I refused the adjournment. There was no proper basis for the adjournment, and it was not in the interests of the administration of justice. It would not be an efficient use of court resources and would not provide for the efficient disposal of the Court's caseload: s 37M, Federal Court Act 1976 (Cth).

grounds and consideration

1. As identified above, the notice of appeal set out five grounds of appeal, in the following terms:
2. The Primary Judge was in error in failing to uphold the review grounds raised by the Appellant;
3. The Tribunal acted unreasonably by failing to provide the Appellants with time to find another employer or provide further material to the Tribunal;
4. The Court failed to take into consideration the Appellants' personal circumstances namely the Appellant's stuck in one state and cannot get a chance to find a new employer;
5. The court did not consider that as the First applicant had a baby and cannot get much time to find a new employer;
6. The Primary Judge was in error by not considering that the First Applicant was going to get sponsor on Sub Class Visa 494 for which First Applicant and Sponsor need time for preparation and approval.
7. At the hearing I invited the appellants to make any oral submissions in addition to the notice of appeal or about the grounds of appeal set out in the notice of appeal.
8. Mr Sandhu submitted: we will like to tell you that when we applied for it, and during the corona time, that the person who was - the business who was sponsoring us, they just withdraw their nomination because they were - their business were not going through very good, so they didn't tell us, and they withdraw it. And we are, like, got - so we moved to Kalgoorlie so that we can find another - like, a business who can sponsor my wife as a accounts manager. So that's why we come down here. And we trying our best so far, but nobody is doing it. So now - like - I would like to add this - that we are short of time. I have a sponsor who's - who's happy to sponsor in - under the DAMA occupations, and he is - we started the process, like, more than a month ago, and we are just in the middle of it. So if in case - if court can give us some time - and we - I'm fully eligible for that. So this is what happened, and we moved to Kalgoorlie because of this. Mr Sandhu's request for "some time" as the basis of the adjournment application is considered and dismissed above.
9. The appellants said that they did not otherwise wish to add anything to the notice of appeal or on the grounds of appeal set out in the notice of appeal.

Ground one - alleging that the primary Judge was in error in failing to uphold the review grounds

1. As can be seen from its terms, ground one does nothing more than allege an error in the outcome. No particulars were provided to that ground. No written submissions were filed in support of that ground. As explained above, although invited to do so the appellants made no oral submissions in support of that ground.
2. The primary judge interpreted the appellants' grounds before him as broadly as possible. In doing so the primary judge identified four potential issues from those grounds. The primary judge dealt separately and comprehensively with each of those issues. The primary judge then identified a further two issues (see [3] above) and dealt carefully with those issues. I see no appealable error in the primary judge's approach, or the reasons given. There was no appealable error.
3. I reject ground one.

Grounds two to five - alleged failure with respect to potential new employer or provision of further material

1. Each of grounds two to five were, in part or wholly, directed at the failure to accommodate the appellants' attempts to find another sponsoring employer. From their terms:
2. Ground two complains that the Tribunal "acted unreasonably by failing to provide the appellants with time to find another employer";
3. Ground three complains of the Court's failure to take into account "the appellants' personal circumstances, namely … cannot get a chance to find a new employer";
4. Ground four complains about the Court failing to consider that Mrs Kaur "had a baby and cannot get much time to find a new employer";
5. Ground five complains that the primary judge did not consider that Mrs Kaur "was going to get sponsor on sub class visa 494". I understood this ground as a reference to Mrs Kaur obtaining a new employer under the visa described by the Migration Regulations 1994 (Cth) as a "Skilled Employer Sponsored Regional (Provisional) visa (subclass 494)." (emphasis added)
6. As with ground one, no particulars were provided in support of grounds two to five, no written submissions were filed, and no oral submissions were made in response to my invitation.
7. The reference to 'another employer' or a 'new employer' in grounds two to four is evidently a new (or another) employer for the purposes of the temporary skilled work visa (subclass 457). As is clear from the background facts above that visa was no longer available from 18 March 2018: see [13], [32] above.
8. Both the Tribunal member and the primary judge set out reasons why it was appropriate to not provide the appellants more time to find a 'new employer': see tribunal decision, [12] and primary judgment, [49]-[62].
9. The Tribunal said at [12]: At hearing, the Tribunal told the applicants it was not minded to grant an extension of time to find a new employer as a new nomination will not operate to fulfill the nomination requirements for this Subclass 457 application. The Tribunal explained to the applicants the changes to the legislative scheme brought in from 18 March 2018, to remove this subclass of visa, which mean that any nomination with respect to this visa application needed to have been applied for prior to that date. The applicants confirmed that they understood these changes. The Tribunal explained that in these circumstances it considers it futile with respect to this visa application, to grant further time to find a new sponsor when it will have no bearing on the applicant's ability to meet the nomination requirements for the grant of this visa…
10. The primary judge said at [58]: In effect, the Tribunal's justification for refusing to "adjourn the review" was that, given "changes to the legislative scheme" which came into effect on 18 March 2018, the first applicant needed to have a nomination application lodged prior to that date and it was "futile" to grant any additional time as a new sponsor would not have assisted the first applicant in meeting the requirements for the visa application under review.
11. Accordingly, the primary judge determined that the Tribunal had an intelligible justification for refusing to adjourn the review (to allow the first applicant to find additional time to find a new sponsor). I agree with that determination and I see no error in it.
12. I reject grounds two to four.
13. Ground five alleges an error by the primary judge in failing to consider that Mrs Kaur was going to seek a Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). Whilst the prospect of a subclass 494 visa was raised before the Tribunal (see tribunal decision at [12]) it does not appear to have been argued before the primary judge that he was to consider "that the applicant was going to get a sponsor on a sub class visa 494." In those circumstances it cannot be said that the primary judge was in error in failing to consider it.
14. Insofar as that ground submits that the approval of a subclass 494 visa could somehow have satisfied the requirements of the subclass 457 visa (the subject of the hearing before the primary judge) I do not accept that submission. In James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1201 Bromberg J rejected the proposition that it was possible for an applicant (as referred to in s 140GB(1) of the Act) to be an applicant for any one of a number of different visas provided that the visa applied for was of a prescribed kind. His Honour accepted that a nomination under s 140GB is a nomination of an applicant in relation to a particular visa within the class or kind of visas which fall within the description "prescribed". Any success that the appellant had in an application for a subclass 494 visa could not satisfy the requirements of the subclass 457 visa before the primary judge.
15. Further, there was no evidence before the primary judge that the appellants had obtained, or were likely to obtain, an approved nomination for a subclass 494 visa.
16. I reject ground five.

CONCLUSION ON THE NOtice of appeal

1. In all those circumstances I find that there is no appealable error in the primary judgment. The appeal is dismissed.

Costs

1. The Minister sought his costs of the appeal. The Minister submitted that, by operation of Federal Court Rules 2011 (Cth), Schedule 3, item 15, he was entitled to a 'short form amount' of $8,323 in circumstances where an appeal in this Court has been dismissed after hearing. However, the Minister claimed a reduced amount of $4,000. The Minister submitted, and I accept, that the Court has a discretion in relation to costs to make a fixed costs order in that reduced amount: see BAX16 v Minister for Immigration and Border Protection [2018] FCA 181.
2. The Minister submitted that the reduced amount of $4,000 was proportionate to the nature, including the complexity, of the case: Bitek Pty Ltd IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 and CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855. The Minister submitted, and I accept, that the issues in the appeal are "not particularly complex and are well settled."
3. I accept that the figure of $4,000 is proportionate to the nature and complexity of the case. I am satisfied that fixing such an amount is an appropriate exercise of the Court's discretion to fix an amount of costs. I will make an order for costs in that amount. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.