Australian Immigration Daily News

Crazy, wacky stuff happens in life all the time, doesn’t it? 

Is there any reason that the arena of migration decision-making should be any different? 

A case that was handed down last week by the Federal Circuit Court – Kaur v Minister for Immigration & Anor (2016) FCCA 1730 (20 July 2016) shows us that it’s not!! 

And the case also shows us that if something crazy or wacky happens that may have a seemingly harsh or unfair impact on someone’s life – for example, on their visa entitlements to remain in Australia – there’s not always a solution or remedy to make it right. 

Let’s start with the basics of this case, which seem straightforward enough. 

The case involved an application for judicial review of a decision by the Tribunal to affirm the refusal of an application for a 457 visa. 

The visa applicant was a citizen of India.  After spending a period of time in Australia as a student, she wished to remain to work in the occupation of a “Records Manager” for a company in Western Australia.  However, the Department at first instance refused her application on the basis that she did not have the skills required to perform the tasks of the nominated occupation. 

Straightforward enough, right? And probably a refusal of a 457 of this kind is a daily occurrence, if not more frequent. 

This is where the case got a bit nutty: 

The applicant’s prospective standard business put in an application for approval of its nomination of the visa applicant for her proposed occupation at the company.  An officer of the Department sent a review letter to the company asking that further information be provided in relation to the application for approval of the nomination.  This letter was sent on 9 October 2014. And it specified that the information that had been requested needed to be provided by the end of October 2015. 

A pretty leisurely time frame, right? A bit longer than the Department usually allows? 

Well, guess what? On 22 December 2014, another officer of the Department refused the application for approval of the nomination on the basis that the requested information had no tbeen provided by the end of October 2014.  

As it turned out, very unfortunately for the applicant, the prospective sponsor did not appeal against the refusal of the nomination. 

Then, in mid-January 2015, after a telephone hearing that lasted all of 15 minutes, the Tribunal affirmed the refusal of the 457 visa application, on the basis that the requirement of 457.223(4)(a) that a nomination of an occupation in relation to the applicant be approved had not been met. 

Catch 22? 

Was there any basis for challenging the refusal of the visa application on the ground that the application for approval of the nomination had been unfairly refused (specifically, that the Department had refused the nomination application well before the time allowed for responding to the Department’s request for additional information had expired? 

And was there any basis for challenging the Tribunal’s decision on the ground  that the Tribunal should have adjourned the hearing on the refusal of the 457 visa application to give the applicant an opportunity to prompt her prospective employer to seek merits review against the refusal of the nomination application? 

Well, unhappily for the applicant, the conclusions reached by Judge Smith in this case about both of these questions was no.  

She was out of luck. Her application for judicial review of the refusal of her 457 visa application failed. 

Why? 

First of all, Judge Smith held that the Tribunal had not denied the visa applicant procedural fairness by failing to review the fairness of the Department’s refusal of the nomination application. His Honour found this to be the case for 2 reasons. 

First, Judge Smith noted that the Tribunal had no power to review the refusal of the nomination application, because no application for review of that decision had been made. As Judge Smith observed, such an application could only have been made by the prospective sponsor, and not by the visa applicant herself. 

Secondly, Judge Smith held that the visa applicant had not been denied an opportunity to overcome the unfairness associated with the Department’s refusal of the nomination application.  His Honour observed that the applicant had been made aware by her migration agent about the Department’s mistake in refusing the nomination application before the time for responding to the review letter had elapsed, and that she had also been advised by her agent that review of the refusal of the nomination could be sought by the Tribunal, and that her own visa application would be in peril if the refusal of the nomination was not overturned. 

In light of this background Judge Smith found that the applicant had had an opportunity to try to remedy the unfairness associated with the premature refusal of the nomination application – for example, by raising the issue with the Tribunal or seeking an adjournment of the hearing on the refusal of her application. 

What about the second argument? Did the Tribunal have a duty to adjourn the hearing to give the applicant an opportunity to prompt the sponsor to seek review of the refusal of the nomination? After all, at the time of the hearing on the visa application, it was still “within time” for an application for refusal of the nomination to be taken to the Tribunal. 

In Judge Smith’s view, the Tribunal did not act unreasonably by not adjourning the hearing. 

First, the visa applicant never approached the Tribunal to request an adjournment to allow her to try to do something to rectify the unfair refusal of the nomination (like encouraging the sponsor to seek review). 

And moreover, the Tribunal was not on notice that the Department had erroneously and unfairly refused the nomination application. Although the applicant’s agent had informed the Tribunal about the refusal, the agent had not informed the Tribunal that the nomination had been refused before the time specified for providing additional information had expired. Rather, the agent had told the Tribunal that the reason that the employer had not provided the information requested by the Department was because the business had been sold.  

So the Tribunal had not been put on notice that the nomination had been refused due to a miscarriage in the Department’s procedures.  And the applicant had not put information concerning this miscarriage before the Tribunal in the context of her own application for review of the refusal of the visa application. 

So, in essence, what the Court held was that since the Tribunal had not been made aware of the error which led the Department to refuse the nomination through material provided by the applicant, and since no adjournment had been sought by the applicant to allow an opportunity for this issue to be addressed (e.g. by getting the sponsor to seek review of the refusal of the nomination), the Tribunal did not have any obligation to grant an adjournment, and had not acted unreasonably by failing to adjourn the hearing.

The right decision?

What do you think?

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