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[2020] FCA 62
Federal Court of Australia
2020-02-07
Perram J
Original judgment source is linked above.
background 1 This is an appeal from the Federal Circuit Court. The underlying dispute concerns whether the Appellants, who are a family, are entitled to permanent residency visas. It was determined by a delegate of the First Respondent ('the Minister') and the Administrative Appeals Tribunal ('the Tribunal') that the First Appellant, who is the husband, was not entitled to the substantive visa for which he had applied and that his wife, the Second Appellant, and their son, the Third Appellant, were not entitled to visas as members of the First Appellant's family. The Federal Circuit Court dismissed an application for judicial review of the Tribunal's decision and the Appellants then appealed to this Court. For the reasons which follow that appeal should be dismissed with costs. 2 The First Appellant was born in 1975 in Nepal and is a citizen of that country. He married the Second Appellant in 2007. She was born in 1983 in Kathmandu, Nepal. In 2012 they had a child who was also born in Nepal. It is not entirely clear when the Appellants first arrived in Australia but they were certainly here by 2009. It seems likely that the First Appellant had initially held a student visa on his arrival. This is consistent with the fact that upon his arrival he appears to have taken up a course of study. As a result of that study, the First Appellant holds a Masters of Commerce (Professional Accounting) from the University of Ballarat which he completed between 2011 and 2012 having completed the course at its Sydney campus. He also completed a course in Nepal in management for which he was issued a proficiency certificate. It is not clear when the First Appellant's student visa expired. 3 Since 2010 the First Appellant has worked for Glad Group Retail Cleaning ('Glad Group') supervising cleaners and doing some cleaning work himself. Until 2009 he had worked in Nepal for NIDC Capital Markets Ltd as a senior finance and administrative assistant, which involved financial reporting and the preparation of management accounts. The Second Appellant has also worked for Glad Group as a cleaner since November 2009. The First Appellant completed an IELTS English proficiency test in 2014 which rated him as having 'competent' English language skills but, as might naturally be expected, his main language is Nepali. 4 On 5 March 2015 the First Appellant lodged an application for a Regional Employer Nomination (Permanent) (Class RN) visa. The visa applied for was a subclass 187 visa which is a species of permanent residency visa, and is also known as the Regional Sponsored Migration Scheme visa. There were, at that time, three streams in which an applicant could apply: the Direct Entry stream, the Temporary Residence Transition Stream and the Agreement stream. The Temporary Residence Transition stream was applicable where the applicant already held certain classes of visa; the Direct Entry stream was applicable where the applicant had not worked in Australia, or had only worked briefly or had applied from overseas; and the Agreement stream was applicable where the Minister had reached a labour agreement to which the employer was a party and under which the applicant's position was nominated. The First Appellant's visa application was in the Direct Stream and his wife and son made their applications as part of his family unit, which required them to meet various secondary criteria which are not presently necessary to detail. 5 Broadly speaking, to be eligible for the Direct Entry stream a primary applicant such as the First Appellant had to be the subject of an approved nomination in an application for approval of a nominated position under subpara 5.19(4)(h)(ii) or para 5.19(4) as in force before 1 July 2012; the job must generally have been in an occupation which was on the list of skilled occupations; the applicant must, at the relevant time, have been under 50 years old (though that age has since been lowered to 45); and the applicant must have met the skills, qualifications and English language requirements which were prescribed: see Migration Regulations 1994 (Cth) ('the Regulations') Sch 2 cl 187.233. 6 The Appellants' application was accompanied by a number of documents which included an agreement between the First Appellant and BLS Farming Pty Ltd ('BLS') dated 20 February 2015. BLS is a grower, distributor and vendor of fruit including mangoes and pumpkins (which, it has been pointed out to me, are a fruit). BLS had agreed to employ the First Appellant, from the date any visa were granted to him, as its internal accountant. 7 In his application the First Appellant provided a residential address in Wiley Park, New South Wales which he also indicated was his postal address. At the same time he nominated a migration agent, Shrestha Suraj of Gulmohar Education and Migration Services ('GEMS'), to receive correspondence on his behalf and provided a GEMS email address after consenting to receiving electronic communications from the Department. The occupation the First Appellant nominated was that of 'Accountant (General)', being Australian and New Zealand Standard Classification of Occupations ('ANZSCO') Code 221111. Whilst that occupation now appears on the skilled occupation list specified by legislative instrument (Migration (LIN 19/047: Specification of Occupations - Subclass 187 Visa) Instrument 2019 (Cth)), there does not appear to have been such an instrument in force at the date of the First Appellant's application. However, by cl 187.234(c) of Sch 2 to the Regulations this was not a necessity where an applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the given occupation. 8 On 5 March 2015 the Department indicated to the Appellants via their migration agent that the visa application had been received. Departmental records suggest that on the same day BLS sought approval from the Department for the nominated position. On 7 September 2015 the migration agent provided to the Department two further documents. The first document was a letter from BLS dated 7 September 2015 indicating that BLS had offered the First Appellant a job as its accountant from the date of the visa grant, that the job would be performed in Dimbulah in Queensland (which is in regional Australia) and that the position would be available to the First Appellant for a minimum of two years. The second document was a letter from the First Appellant to his Departmental case officer to the effect that he had arrived in Australia on a student visa, had done various small jobs since then, had no accountancy experience as he was not permitted to work as such, and that he could not provide references from the various small jobs he had done as he was no longer in contact with the relevant employers, but that he did have accountancy experience in Nepal. 9 On 29 September 2015 the Department emailed the migration agent informing him that the BLS's nomination application for the First Appellant had been refused. It appears that BLS itself then applied for a review of that decision in the Tribunal. Whilst that review was pending, however, the fact remained that there was no approved nomination underpinning the Appellants' application. There being no approved nomination in place, by the letter emailed on 29 September 2015, the Tribunal invited the Appellants to withdraw the visa application since there was no possibility of it being accepted. This was because the First Appellant could not satisfy the requirement of cl 187.233(3), which provided as a criterion for the grant of the visa: 'The Minister has approved the nomination'. 10 The Department indicated that if the application was not withdrawn or some other response not received within 28 days, the application would be refused, but that if it were refused, the Appellants would be entitled to a review in the Tribunal. No response was received by the Department within that 28 day time frame. 11 On 10 November 2015 the Department informed the migration agent that the visa application had been refused. This determination was accompanied by a statement of reasons. The reasons indicated that one of the requirements for the grant of the visa, set out in cl 187.233(3), was that the nominated position should have been approved by the Minister (or a delegate) and that the First Appellant did not hold an approved nomination, the nomination proffered by him having been refused on 29 September 2015. Since the First Appellant's visa application was refused, the visa applications of the Second and Third Appellants were also refused under cl 187.311(a).
proceedings in the tribunal 12 On 18 November 2015 the Appellants filed a review application with the Tribunal. The application nominated a new migration agent, Amrit Tewari of Flying Kangaroo Pty Ltd, as their representative and provided an email address for him. 13 On 2 February 2017 the Tribunal dismissed BLS's separate review application and therefore affirmed the delegate's earlier decision that the nomination by BLS was not approved. The next day, 3 February 2017, the Tribunal sent a letter by email to the migration agent (and the Appellants) and indicated that it appeared to the Tribunal that the First Appellant was not eligible for the visa because he did not hold a nomination approved by the Minister and hence did not meet the criterion set out in cl 187.233. 14 The Tribunal has a power under s 359A of the Migration Act 1958 (Cth) ('the Act') to invite an applicant to make further submissions in relation to a matter which the Tribunal thinks may justify the affirmation of the decision under review. In this case, the Tribunal thought that the decision had to be affirmed because there was no approved nomination which met that description. In the same letter it invited the making of a submission of the kind contemplated in s 359A by 17 February 2017, being 14 days after the date of the letter as required by reg 4.17(4)(i) of the Regulations. No response was received. 15 On 24 February 2017 the Tribunal informed the Appellants that their review application had been refused and provided them with a statement of reasons. The statement of reasons referred to the fact that the decision not to approve the position offered by BLS had been affirmed on 2 February 2017. It then noted that the Appellants had not responded to its letter of 3 February 2017 by the date specified in that letter, i.e. 17 February 2017. It thought this significant because of s 359C(2) of the Act, which provides: 359C Failure to give information, comments or response in response to written invitation … (2) If the applicant: (a) is invited under section 359A to comment on or respond to information; and (b) does not give the comments or the response before the time for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information. 16 Additionally, ss 360 and 363A of the Act provide: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 363A Tribunal does not have power to permit a person to do something he or she is not entitled to do If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person. 17 The significance of these provisions is that the failure of the Appellants to respond by 17 February 2017 had the apparent effect of entitling the Tribunal to dismiss their review application on the basis suggested in its letter of 3 February 2017 without any further hearing, which is what the Tribunal did. In that circumstance, the Tribunal then reasoned that the requirements of cl 187.233 had not been met because there was no approved nomination in place, that the First Appellant was not therefore eligible for the visa, and that his family were not eligible as a result. The Tribunal affirmed the decision under review.
Proceedings in the Federal Circuit Court 18 On 14 March 2017 the Appellants filed an originating application in the Federal Circuit Court seeking an order that the Tribunal's decision be quashed on the ground that that the First Appellant disagreed with the decision. The return date before the Federal Circuit Court was set at 7 April 2017. The originating application was supported by an affidavit sworn by the First Appellant on the same date but the copy of the affidavit in the appeal papers did not in fact contain any substantive paragraphs. On 28 April 2017 the Appellants filed an amended originating application which sought the same relief but now advanced three grounds in support: (1) a statement lodged by the Appellants on 24 February 2017 confirmed that the First Appellant had been represented in the review process by a migration agent; (2) the Tribunal had erred in proceeding to deal with the review application in the absence of the Appellants and it ought to have heard from them; and (3) a further affidavit would provide additional grounds. The further affidavit, it may be inferred, was the First Appellant's affidavit filed and sworn on 21 April 2017. Again, the affidavit in the appeal papers appeared to have no substantive contents. 19 On 16 April 2019 the judicial review claim was heard and determined in the Federal Circuit Court by Judge Dowdy. His Honour dismissed the application with costs: Nepali v Minister for Immigration and Border Protection [2019] FCCA 1180. His Honour dismissed the first ground of review on the basis that it did not disclose a cognisable error: at [18]. That ground, it will be recalled, was that the Appellants had submitted the decisions and reasons of 24 February 2017. In the Federal Circuit Court it was clarified during the hearing that the reference to 24 February 2017 should have been to 23 February 2017. Even so amended, however, the fact that the Appellants had submitted the decisions and reasons of the Tribunal does not disclose any comprehensible ground of review. The learned judge was correct so to find. 20 Judge Dowdy characterised the second ground of review as involving a submission that the Tribunal had erred in concluding that it did not need to afford the Appellants a hearing before affirming the decision under review and that they were thereby denied an opportunity to comment. His Honour rejected this argument on the basis of ss 359C, 360 and 363A. He was of the opinion that the Department's letter of 3 February 2017 complied with the requirements of s 359A and had been delivered in accordance with one of the methods described in s 379A(5), which relevantly included transmission by email to the last email address provided to the Tribunal in connection with the review: subparas 379A(5)(b), (d). 21 Consequently, the primary judge could perceive no reason why ss 359C, 360 and 363A did not have the effect that the Tribunal could proceed to affirm the decision under review without a further hearing: at [21]-[23]. His Honour further found that a hearing could not have affected the result as the Tribunal was bound to reject the application: at [24]. 22 Judge Dowdy rejected the third ground because he did not think it was meaningful: at [26]. It will be recalled that this ground was that an affidavit would be provided. I agree with his Honour that this did not disclose a ground of review.
the present appeal 23 On 8 May 2019 the Appellants filed a notice of appeal with this Court. It articulates four grounds of appeal: (1) the Tribunal denied the Appellants procedural fairness by not giving them a hearing; (2) the Tribunal had failed to give the Appellants an opportunity to give evidence and present argument; (3) the primary judge had erred in law by failing to consider the evidence in its totality or cumulatively and in failing to take into account relevant evidence or taking into account irrelevant evidence; and (4) the learned judge had been biased against the Appellants. 24 I do not accept any of these grounds. The first two are essentially the same and may be viewed as taking issue with his Honour's application of ss 359C, 360 and 363A. I do not think his Honour erred in that regard. I have set out the relevant provisions above at [15]-[16]. Section 359A(1)(a) required the Tribunal to give to the Appellants clear particulars of any information which it considered would be the reason for affirming the decision under review. The Tribunal explicitly identified the information in its letter of 3 February 2017 in the following terms: The particulars of the information are: • On 2 February 2017 the Tribunal affirmed the Department's decision to refuse the nomination made by BLS Farming Pty Ltd in relation to you. 25 Section 359A(1)(b) then required the Tribunal to ensure, so far as was reasonably practicable, that the Appellants understood why that information was relevant to the review. On that topic the letter said this: The above information is relevant because cl. 187.223(3) requires the relevant nomination to be approved. If the Tribunal relies on the above information it may find that the nomination in relation to you has not been approved. The Tribunal may then go on to find that you do not meet the requirements in cl. 187.233 and the decision under review may be affirmed. 26 So the Tribunal explicitly identified the effect of cl 187.223(3) and it explicitly foreshadowed that if that were correct it could affirm the decision under review. And, a little later in the same letter, the Tribunal indicated that if the Appellants did not respond in the set timeframe, it could affirm the decision under review without a further hearing: 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. (Emphasis original.) 27 In that regard, it was foreshadowing the effect of s 359C(2) (extracted at [15] above). It follows that I agree with the learned primary judge's analysis. And, subject to the argument I deal with below, like his Honour, I do not think that it can be said that the letter of 3 February 2017 was not received by the Appellants. 28 In relation to the third ground, the Appellants did not identify in this Court what the evidence in its totality or cumulatively was. However, the relevant evidence on the application before the primary judge consisted of the letter of 3 February 2017, the ancillary evidence about its delivery and the fact that it had not been responded to. Having read all of the appeal papers I do not see how anything else in them could detract from (or even add to) the legal consequences of those facts. I do not therefore accept the submission that his Honour had failed to consider the evidence cumulatively or in its totality. Likewise, I am unable to identify anything which his Honour took into account which was irrelevant or to conceive of some other material beyond the correspondence which might have been relevant to the s 359C(2) issue. 29 In relation to the fourth ground, I was not taken to the transcript before the primary judge and the only material upon which to assess the suggestion that his Honour was biased is his Honour's reasons for judgment. Nothing in those reasons discloses anything which might remotely ground an allegation that his Honour had not brought a fair mind to the determination of the case. There is, in that circumstance, no substance in the submission that the decision was affected by bias. 30 At the hearing of the present appeal on 19 November 2019 the First Appellant submitted that the reason for the Appellants' non-response to the letter of 3 February 2017 was that it was sent to their migration agent, and the migration agent failed to pass the letter onto them. Relevantly to that submission, s 379G(1) of the Act provides: Authorised recipient (1) If: (a) a person (the applicant) applies for review of a Part 5-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method. 31 Additionally, s 379C(5) provides that if the Tribunal gives a document to a person by email, the person is taken to have received the document at the end of the day on which the document is transmitted. 32 The Appellants having appointed a migration agent, and it not being in dispute that the letter was sent to the migration agent by email, the Appellants were taken by ss 379G and 379C to have received the letter on 3 February 2017. That is unfortunately so regardless of whether the Appellants ever did see the letter: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134; 136 FCR 407 at [15]. That is the policy of the statute. 33 In those circumstances, the appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.
Nepali
Minister for Immigration and Border Protection