Aulakh v Minister for Immigration

[2015] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

AULAKH & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 467

Catchwords:
MIGRATION – Application for Temporary Business Entry (Class UC) visa – whether nominated position was genuine – where tribunal held nominated position was not genuine – no error established – application dismissed.

Legislation:

Migration Regulations1994, schedule 2, cl.457.223, 457.223(4), 457.223(4)(d)(ii)

First Applicant: HARDEEP KAUR AULAKH

Second Applicant: GURPREET SINGH

Third Applicant: KHUSHPREET SINGH DHALIWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 783 of 2014

Judgment of: Judge Jarrett

Hearing date: 24 February 2015

Date of Last Submission: 24 February 2015

Delivered at: Brisbane

Delivered on: 4 March 2015

REPRESENTATION

The First Applicant appearing on her own behalf

There being no appearance by the Second or Third Applicants

Solicitor for the First Respondent: Mr Hawker

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 4 September, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application to be fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 783 of 2014

HARDEEP KAUR AULAKH

First Applicant

GURPREET SINGH

Second Applicant

KHUSHPREET SINGH DHALIWAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the second respondent made on 25 August, 2014 which affirmed a decision of a delegate of the first respondent not to grant the applicants a Temporary Business Entry (Class UC) visa.

2. The first respondent opposes the application and the second respondent has entered a submitting appearance.

3. When the application came before the Court for its first court date, directions were made that permitted the applicants to file an amended application if they wished to do so.  The directions also required the applicants to file and serve a written outline of their submissions prior to the hearing of the application.

4. Despite those directions, the applicants have filed neither an amended application, nor any written submissions in support of their application.

5. I have written submissions filed on behalf of the first respondent.

6. The first applicant is a citizen of India.  She applied for a Temporary Business Entry (Class UC) visa on 29 April, 2013.  The second applicant, Gurpreet Singh, is the applicant's husband and the third applicant, Khushpreet Singh Dhaliwal, is the first and second applicant's child. The second and third applicants have applied as members of the applicant's family unit.  They advance no claims to the grant of a visa independent of the claims of the first applicant.

7. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994. One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4). Before both the first respondent’s delegate and the second respondent, the first applicant made specific claims against cl.457.223(4). That criterion applied to sponsorship for employment in an occupation by a standard business sponsor.

8. For that purpose, the applicant was nominated by Badwal Pty Ltd as trustee for Badwal Family Trust and Amarjit Singh Family Trust for the position of Retail Buyer (ANZSCO 6392-11).  The nominator operated the Dinmore Fruit Barn.

9. On 27 August, 2013 a delegate of the first respondent refused the application for the visa. The delegate was not satisfied that the position associated with the nominated occupation was genuine and therefore cl.457.223(4)(d)(ii) in Part 457 of Schedule 2 of the Regulations was not satisfied.

10. The applicant lodged an Application for Review by a migration review tribunal on 3 September, 2013.  The review included the second applicant and the third applicant. 

11. The applicants were invited to appear at a hearing by the tribunal on 22 August, 2014.  The tribunal requested that any additional documents or information they wished to rely on during the hearing be provided to the tribunal by 15 August, 2014.

12. The applicants attended that hearing accompanied by a migration agent and a witness, namely the first applicant's employer.

13. The tribunal gave its decision on 22 August, 2014. The tribunal determined that cl.457.223(4)(d)(ii) of the Regulations required that the position associated with the nominated occupation be genuine. It was correct to do so.

14. The first applicant provided an organisational chart which demonstrated that 2 retail employees reported to the first applicant in her role with her employer and that she in turn reported to Mr Singh and his wife, the effective owners of the business for which she worked.

15. The ANZSCO description of the duties of the first applicant’s nominated position of Retail Buyer were set out by the tribunal in its reasons.

16. After considering the evidence of the first applicant and her witness, the tribunal concluded:

    23.    In considering if the position associated with the nominated occupation of Retail Buyer is genuine, the Tribunal accepts that the applicant carries out some aspects of the work of a Retail Buyer albeit in the context of a small-scale grocery food business. Some tasks that the applicant performs are similar to aspects of the first 3 tasks in the ANZSCO guide for the occupation of Retail Buyer. However, the Tribunal is not satisfied from the applicant’s own evidence at hearing that her role encompasses such tasks at the higher skill level described in ANZSCO.  The Tribunal considers these aspects of the position derive directly from the essential nature of retail business, and would be a standard feature of any such retail operation.  It is trite to state that any retail business selling goods needs to purchase those goods in order to sell them.  However, not all retail stores need (or indeed have) a Retail Buyer. 

    24.    Furthermore, the Tribunal is not satisfied that the scale and activities of the business are such that a designated Retail Buyer performing the range of duties as described in ANZSCO and at the skill level indicated is necessary to the operations of the business. The Tribunal considers that the retail buyer aspects of the position’s duties flow directly from general operations of the business in providing goods to the public on a day to day basis, and from supervising other staff. The Tribunal considers that these aspects are put into practice on a basic level. 

    25.    Based on the applicant’s evidence at the hearing, and taking into account the other written material provided to the Department and the Tribunal, the Tribunal is not satisfied that the position includes a significant majority of the range and skill level of tasks as set out in ANZSCO for the occupation of Retail Buyer. The Tribunal does not accept that the position of Retail Buyer in the context of a small-scale grocery is genuine. The Tribunal does not accept that the duties of the position amount to the position of Retail buyer, having regard to the size and nature of the business and the duties described in the ANZSCO guide.

17. Accordingly, the tribunal found that cl.457.223(4)(d)(ii) was not met and the decision under review was affirmed.

18. The grounds of review specified in the application are:

    1.  Jurisdictional error has occurred with relation to application under class UC/Subclass 457 visa. Claims incorrectly assessed and non-genuine intent considered by the tribunal.

    2.  It is evident that the Tribunal did not make justifiable considerations and passed judgments on basis of doubts where not all aspects of the nominated position Retail Buyer were considered. It committed errors in finding facts related to the skills listed in the ANZSCO and responsibilities listed that corresponded to the unit group and overall the genuineness of approvaed nominated position by the Immigration Department.

    Grounds of Application

    1.  It is suggested that jurisdictional errors that may or may not be noted above in detail be looked at and the application be considered to allow the applicant to be employed with the nominating employer.

    (errors in the original)

Ground 1

1. As the first respondent submits, if jurisdictional error is to be found, it must be found in the process by which the tribunal’s state of satisfaction is reached rather than in the merits or correctness of the tribunal’s decision.

2. The tribunal identified the relevant criterion that was central to the application. It identified the correct test provided for in cl.457.223(4)(d)(ii). The first applicant does not identify in her application or in argument any error by the tribunal in its approach to cl.457.223(4)(d)(ii). In my view there was none.

3. I do not understand the applicant’s reference to “non-genuine intent” in ground 1.  It was not further explained in argument.  Notwithstanding that, there seems to be no reference at all to her “intent”, or the “intent” of any relevant others by the tribunal in its reasons.

4. I can identify no error in the way in which the tribunal assessed the first applicant’s claims against the criterion specified in cl.457.223(4)(d)(ii) of schedule 2 to the Regulations.

Ground 2

1. The tribunal considered the ANZSCO description of duties for a Retail Buyer.  It was bound to do that.

2. It considered the evidence that the first applicant put before the tribunal about her role.  It considered the evidence from her employer.

3. It is apparent from the tribunal’s reasons for decision that the tribunal took all of the available evidence into account, however upon doing so, it was not satisfied that the position which the first applicant claimed to occupy with her employer was genuine.  That is not to say that it did not accept the fact of her employment with Badwal Pty Ltd, but rather that her position did not have the necessary qualities to satisfy the tribunal that it met the ANZSCO description of the nominated position.

4. I have set out the tribunal’s reasoning above.  The tribunal was entitled on the evidence to take the view that it did.  That others might have reached a different conclusion is not to the point.   To form a view about those matters was the essential task before the tribunal.  That it formed a view that was adverse to the first applicant’s claims is not, of itself in this case, indicative of error.

Ground 3

1. This is not a ground of review in a strict sense, but rather a request to the Court to consider the tribunal’s reasons to determine if it is attended by error and to reconsider the application that was before the tribunal.  I can carry out the first part of that task, but not the second.  This Court has no authority to reconsider an application for review that it has determined has been attended by jurisdictional error.  The appropriate course is to remit the application to a tribunal for further consideration.

2. As to the first part of the exercise suggested, I have considered the tribunal’s reasons to determine if it is attended by error, although I have not done so with an eye keenly attuned to error.  Nor have I approached the tribunal’s reasons with a fine-toothed comb.

3. I can see no error in the process that unfolded before the tribunal or in the tribunal’s reasons that led it to the conclusion it reached.

Conclusion

1. There is no jurisdictional error in the Tribunal's decision.  It cannot be reviewed in this Court.

2. The application must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 4 March, 2015.

Associate: 

Date:         4 March 2015