Aplod v Minister for Immigration

[2020] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

APLOD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1398

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – Administrative Appeals Tribunal not satisfied that the applicant had a valid nomination as required by cl.187.233(3) and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth)

Cases cited:

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

Applicant: DEVONNE LYN APLOD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1365 of 2019

Judgment of: Judge Dowdy

Hearing date: 21 February 2020

Delivered at: Sydney

Delivered on: 21 February 2020

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Mr X. Goffinet

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in his Court on 5 June 2019 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 30 June 2020 to file any Notice of appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1365 of 2019

DEVONNE LYN APLOD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a female citizen of the Philippines aged 26 years. 

2. By Application filed in this Court on 5 June 2019, she seeks to quash and impliedly have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 2 May 2019 affirming a decision of the Delegate (Delegate) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) dated 25 September 2018, refusing to grant to her a Regional Employer Nomination (Class RN) (Subclass 187) visa (Subclass 187 visa) in the Direct Entry stream under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

1. The application for the Subclass 187 visa was lodged on 4 March 2018 on the basis of the Applicant’s nomination to work in the position of Disability Service Officer at Frangipani Gentle Care Group Homes Pty Ltd (the sponsor). Unfortunately for the Applicant, the nomination by the sponsor was refused by a Delegate of the Minister on 23 August 2018, and merits review of this nomination refusal was not sought by the sponsor. 

2. The Department of the Minister (Department) sent a letter to the Applicant dated 24 August 2018 advising her of the refusal of her nomination and advising that this meant that her Subclass 187 visa application could not be approved. The letter went on to invite her to withdraw her Subclass 187 visa application and that if she did not otherwise respond her visa application would be refused. Refusal necessarily followed from the refusal of her nomination by the sponsor because she was not then able to satisfy cl.187.233 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations), which required as follows: 

   187.233

   (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:

   (i)     subparagraph 5.19(4)(h)(ii); or

   (ii)    subregulation 5.19(4) as in force before 1 July 2012; and

   (aa)  in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

   (b)  in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)  The person who will employ the applicant is the person who made the nomination.

   (3)  The Minister has approved the nomination.

   (4)  The nomination has not subsequently been withdrawn.

   (4A)  Either:

   (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (5)  The position is still available to the applicant.

   (6)  The application for the visa is made no more than 6 months after the Minister approved the nomination.

   (emphasis added)

3. In other words, pursuant to cl.187.233 of the Regulations the Applicant had to be the subject of an approved nomination, but such was not the case.

Decision of Delegate

1. The Applicant did not respond to the Department’s letter of 24 August 2018 and by decision dated 25 September 2018 the Delegate found as follows:

   Findings

   On the basis of all the information available to me, including the documents and information the applicant provided, I find that the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa have not been satisfied by the applicant.

   Reasons

   I have assessed the application and the reasons for my decision are detailed below.

   An application for a Regional Sponsored Migration Scheme (subclass 187) visa has been made by the applicant.

   A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied.

   In this case, I am not satisfied that clause 187.233 of Schedule 2 of the Migration Regulations is satisfied…

   …

   On 23 August 2018 the nomination lodged by FRANGIPANI GENTLE CARE GROUP HOMES PTY LTD, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Home Affairs.

   On 24 August 2018, Ms Devonne Lyn Aplod was issued with a natural justice letter inviting her to comment within 28 days. To date, no comment has been provided by Ms Devonne Lyn Aplod in regards to the natural justice letter sent on 24 August 2018.

   Since the appointment to which the visa application by Ms Devonne Lyn Aplod relates to has not been approved, Ms Devonne Lyn Aplod does not satisfy Regulation 187.233(3).

   As a result, Ms Devonne Lyn Aplod does not meet the requirements of regulation 187.233.

2. Accordingly, the Delegate refused to grant a Subclass 187 visa to the Applicant.

Decision of Tribunal

1. On 11 October 2018 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal and gave a copy of the Decision Record of the Delegate to the Tribunal at that time. She appeared at a Tribunal hearing on 30 April 2019 to give evidence and present arguments, having earlier by email dated 16 March 2019 requested that the Tribunal consider her “application for review in the absence of nomination appeal”. 

2. The Tribunal recorded at [17] – [19] of its Decision Record that at the hearing the Applicant had asked for more time to complete her training and education with the sponsor, as the sponsor intended to make a new nomination application. However, the Tribunal found that a new nomination would not assist the Applicant in her present application and proceeded to make a decision on the information before it.

3. In its Decision Record at [20] – [21] the Tribunal stated:

   [20] The evidence before the Tribunal indicates that the nomination for the position lodged by Frangipani Gentle Care Group Homes Pty Ltd, about which the visa applicant made the required declaration in the visa application, has been refused. In the circumstances, the applicant does not meet the requirements in cl.187.233(3). Therefore, cl.187.233 is not met.

   [21]The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

4. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Subclass 187 visa to the Applicant. 

Grounds of Attack on Decision of Tribunal in this Court

1. The Applicant relied on the following Grounds:

   1.Failed to take into account relevant considerations

   2.Is affected by error of law

Consideration

1. Neither ground is particularised and both are completely generalised.  The simple fact of the matter is that the Tribunal’s decision to affirm the Delegate’s decision was, in the circumstances, inevitable and does not involve jurisdictional error. 

2. The construction, meaning and effect of cl.187.233 of the Regulations were explained by Mortimer J with the agreement of Jagot and Bromberg JJ in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at 280 [45] and 285 – 287 [82] – [90] and where it was held that failure of the employer sponsor for a Subclass 187 visa to obtain approval to the relevant nomination was fatal to the grant of such a visa.

3. The Tribunal’s decision was in complete accord with her Honour’s explication of cl.187.233.

4. Both Grounds fail to establish that the decision of the Tribunal was affected by jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court is to be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate:

Date: 2 June 2020