Bandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 225
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 225
File number: MLG 4 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 31 March 2022 Catchwords: MIGRATION – Employer Nomination visa – decision of the Administrative Appeal Tribunal – whether the Tribunal misunderstood cl 186.223 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 65, 351, 359A, 363 & 476
Migration Regulations 1994 (Cth), cll 186.223 and 186.311 & Part 186 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Begum v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 222
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 29 March 2022 Place: Perth Applicants: In person Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 4 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NARESH BANDARI
First Applicant
AARUSH BANDARI
Second Applicant
SANDHYA RANI GUDIMALLA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicants are citizens of India (Court Book (“CB”) 2, 4 & 5). The first and third applicants are husband and wife respectively (CB 2-4). The second applicant is their son (CB 5). He was born in Melbourne in 2015 (CB 6).
On 16 December 2016, the first applicant applied for an Employer Nomination (Class EN) (Subclass 186) visas (the “visa”) in the Temporary Residence Transition stream (CB 1-13). The second and third applicants were included in the visa application as members of the first applicant’s family unit (CB 4-6). In that application, the first applicant nominated the position of “wall and floor tiler” and identified Konig Constructions Pty Ltd (the “sponsor”) as his sponsor (CB 9).
On 7 June 2017, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application (CB 28).
Later that same day (on 7 June 2017), the first applicant was notified by the then Department of Immigration and Border Protection (the “Department”) that his sponsor’s nomination application had been refused and he was invited to “comment on or withdraw” his visa application. He was also advised that, if he did not withdraw his application or respond to the invitation to comment within 28 days, his visa application would be refused (CB 15-18).
On 23 June 2017, the sponsor sought review of the delegate’s decision in relation to the nomination application at the Administrative Appeals Tribunal (the “Tribunal”) (CB 39).
On 30 June 2017, the first applicant responded to the delegate’s invitation to comment. He advised the delegate that his sponsor had lodged an application at the Tribunal for a review of the delegate’s decision to refuse the sponsor’s nomination application (CB 19-20).
On 11 July 2017, a delegate of the Minister refused to grant the applicants the visas
(CB 27-30). The delegate was not satisfied that the first applicant met cl 186.223(2) in Schedule 2 of the Migration Regulations 1994 (the “Regulations”) because he was not the subject of an approved nomination. As such, the second and third applicants failed to satisfy cl 186.311 in Schedule 2 of the Regulations.
On 26 July 2017, the applicants sought a review of the delegate’s decision in relation to the visa application at the Tribunal (CB 31-33).
On 1 November 2017, the Tribunal affirmed the delegate’s decision in relation to the sponsor’s nomination application.
Later that same day (on 1 November 2017), the Tribunal wrote to the first applicant pursuant to s 359A of the Migration Act 1958 (Cth) (the “Act”) and invited him to comment on that information (being that on 1 November 2017, the Tribunal had affirmed the delegate’s decision to refuse the sponsor’s nomination) (CB 38-40).
On 14 November 2017, the first applicant responded to the invitation and asked for additional time to contact his employer (CB 41).
On 15 November 2017, the Tribunal sent a letter to the first applicant (via email) advising him that it had extended the period within which it would receive comments from the applicants (to 29 November 2017). The Tribunal also advised that, if it did not receive comments or a response from the applicants by that date, it may proceed to make a decision without taking any further action to seek information from the applicants (CB 42-43).
On 28 November 2017, the first applicant again asked for more time to contact his employer (CB 44).
On 1 December 2017, the Tribunal sent a letter to the first applicant (via email) advising him that the Tribunal had decided to adjourn the review until 6 December 2017 to allow the applicants additional time within which “to provide submissions and evidence in support of the review application”. This was done pursuant to the Tribunal’s powers under s 363(1)(b) of the Act (CB 45-46).
No further response or submissions were provided by the applicants.
On 11 December 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants the visas (CB 49-52). The Tribunal determined that, as the first applicant was not the subject of an approved nomination, he could not be granted the visa. That, in turn, meant that his wife and son were also not eligible for the visa.
On 2 January 2018, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court the applicants must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUUNAL’S DECISION
The Tribunal’s decision is four pages long and spans 19 paragraphs.
The Tribunal began by noting that the decision under review related to a decision made by a delegate of the Minister on 11 July 2017 refusing to grant the applicants the visas under s 65 of the Act (at [1]-[2]).
The Tribunal then outlined the criteria for the grant of a Subclass 186 visa as set out in Part 186 of Schedule 2 of the Regulations (at [3]) and explained as follows:
4.In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of wall and floor tiler. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.
5.The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations. The related nomination application referred to in the visa application had been refused by the department and as a result; the delegate concluded that the applicant did not meet cl.186.223.
The Tribunal then noted (at [7]) that it had, in accordance with s 359A of the Act, invited the applicants to comment on, or respond to, information it considered would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that the particulars of that information were as follows:
•The visa application was refused by the Department on 11 July 2017 because the nomination mentioned in cl.186.223 had not been approved.
•The decision not to approve the nomination lodged by Koning Constructions Pty Ltd was made by the Department on 7 June 2017.
•Koning Constructions Pty applied for review of this decision at this Tribunal on 23June 2017. On 1 November 2017, the tribunal affirmed the primary decision related to the nomination application.
The Tribunal then explained that it had advised the applicants that if the comments to the particulars above were not received by 15 November 2017, and no request for an extension of time was made, it may make a decision on the review without asking the applicants for any further information (at [8]).
The Tribunal noted that, on 14 November 2017, the applicants asked for, and were given, an extension of time 29 November 2017 to provide further information (at [9]).
The Tribunal then stated:
10.On 28 November 2017, the applicants sought another extension of time to provide comments on or response to information. On 1 December 2017, the tribunal wrote to the applicants advising that, in accordance with the requirements of subsection 359B(4) of the Migration Act 1958 the Tribunal may only grant an (one) extension for a prescribed further period. The applicants were informed that their second request for extension of time has not been granted.
11.The applicants were further advised that the presiding member decided to adjourn the review under subsection 363(1)(b) of the Act until 6 December 2017 to allow the applicants additional time in which to provide submissions and evidence in support of the review application.
The Tribunal continued:
12.In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. As of the day of this decision, no further correspondence was received either from the applicant or her representative.
The Tribunal explained that it had adjourned the review (pursuant to s 363(1)(b) of the Act) “to allow the applicants additional time in which to provide further evidence to support their review applications”, however, no further submissions or documents had been received (at [13]).
The Tribunal then outlined the requirements of cl 186.223 in Schedule 2 of the Regulations, as follows:
Nomination of a position
14.Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
15. In addition, this criterion also requires that:
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal continued:
16.Based on the evidence before it, the tribunal finds that the appointment mentioned in subclause 187.233 lodged by Koning Constructions Pty Ltd on behalf of the first named applicant, has not been approved at the time of the tribunal’s decision. As a result, the tribunal finds that the first named applicant does not meet the requirements of clause 187.233 at the time of its decision.
17.The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
18.The tribunal must also affirm the decision not to grant the second and the third named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (at [19]).
PROCEEDINGS IN THIS COURT
The applicants filed an application for judicial review in this Court on 2 January 2018. That application provides four “grounds of review” as follows (without alteration):
1.My nomination by the company (Konig Constructions) not responded to AAT. In the time frame by AAT.
2.As my nomination by the company was not successful, they [sic] my application was refused.
3.My self Naresh Bandari want justice that, if the company is not responded how it was went wrong with my application. As I am working hard and doesn’t done any unlawful.
4.My self Naresh Bandari, my wife Sandhya Rani Gudimalla and my son Aarush Bandari was very stressed that we are not able to be part of this Australia. We can’t imagine our life without this beautiful country.
In support of the application for review, the first applicant affirmed an affidavit on 2 January 2018. That affidavit contains the following 12 paragraphs (without alteration):
1.I am applying for review at the Federal circuit court under s.65 of the Migration act 1958.
2.My name is Naresh Bandari along with my wife Mrs. Sandhya rani Gudimalla and my son Master Aarush Bandari also part my application.
3.I have applied for 186 sub-class as I was eligible for.
4.At the time of the application I was eligible to apply for the 186 sub-class under the Migration act 1958.
5.The cl.186.223 of the regulations is not met by me because at the time of application my employer nomination was not approved.
6.I find the criteria for the grant of a 186 sub-class visa are not by me and thus the delegate has refused my application
7.I have applied for review at the Administrative appeal tribunal at Melbourne registry, went to the hearing and gave the evidence to the best of I can supporting my appeal.
8.Despite trying hard, the tribunal member has denied my submission.
9.I have done my education, gained work experience here, earned bread and butter with the hard-earned money, started a life here with the hope of becoming a resident. I am so petrified about the future of my family, especially my son who is born in Australia and I coundn’t guarantee him a future life here because of the rejection decision. I do believe my son has the right to live here as any other kid who is born here, and I request you to consider my case on the grounds of compassion.
10.I strongly believe that I haven’t done anything unlawful and applied for the sub-class visa with the hope of acquiring the residency. I do not have any control over my employer and his communication and I haven’t done anything that would hinder my residency application. This is the prime reason for appealing the tribunal decision to the federal court [sic] for review.
11.All the claims and documents that I have produced are true and genuine to the best of my knowledge.
12.A decision of Tribunal is attached.
The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. On 28 March 2022, the day prior to the hearing before this Court, the applicants sent a two page letter to chambers in which they again stress how difficult their life has been since the Tribunal affirmed the decision to refuse their visas. The applicants also indicate that they wish to seek Ministerial Intervention.
The materials before the Court thus include the application for judicial review and supporting affidavit (both filed by the applicants on 2 January 2018), a Court Book numbering 70 pages (marked as Exhibit 1), an affidavit of Adam Cunynghame affirmed and filed on 16 March 2022, written submissions filed by the Minister on 16 March 2022 and a “letter to chambers” from the applicants received on 28 March 2022 (as referenced above) (marked as Exhibit 2).
The applicants appeared before this Court on 29 March 2022. They did so without legal representation. The first applicant spoke in behalf of his family. The Court confirmed with him that he had a copy of the Court Book, the Minister’s written submissions and the affidavit of Adam Cunynghame affirmed on 16 March 2022.
Noting that the applicants were unrepresented, the Court explained to the first applicant that the only issue before the Court was whether the Tribunal had fallen into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this backdrop, the first applicant was asked to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Unfortunately, the first applicant’s oral submissions did not address the issue of jurisdictional error on the part of the Tribunal. Rather, what he sought was an impermissible merits review of the Tribunal’s decision.
In the circumstances, the Court will assess the grounds of review as articulated. Noting that the applicant is unrepresented, however, the Court will also remain astute to the possibility of error in the Tribunal’s decision and address any such concerns accordingly: as per the principles articulated in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Grounds of Review
By grounds 1 and 2, the applicants admit that the nomination application by the first applicant’s sponsor, Konig Construction Pty Ltd, was refused. Ground 4 simply outlines the impact of the visa application process on the applicants’ “psychological health” and stresses their desire to live Australia.
Grounds 1, 2 and 4 in the application for judicial review do not reference or address the issue of jurisdictional error. Similarly, the concerns raised in the accompanying affidavit do not assist the Court in identifying any errors in the Tribunal’s decision. What is provided is simply a narrative of events leading up to and after the rejection of their visa applications.
At their highest, these grounds of review simply express disagreement with the Tribunal’s conclusions and seek an impermissible merits review.
Grounds 1, 2 and 4 are, accordingly, dismissed.
Read as broadly as possible, ground 3 and paragraph 10 in the affidavit filed with the application for judicial review allege that the Tribunal misapplied the relevant statutory requirements for the visas the applicants are seeking.
The Court finds no error in the Tribunal’s understanding or application of cl 186.223 in Schedule 2 of the Regulations. Relevantly, the Tribunal summarised the requirements as follows:
14.Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
15.In addition, this criterion also requires that:
•the nomination has been approved and has not been subsequently withdrawn
•there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
•the position is still available to the applicant, and
•the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal stresses (at [14]) that it is a primary requirement for grant of a visa under cl 186.223 in Schedule 2 of the Regulations that a primary applicant hold an approved employer nomination at the time of the decision. It is undisputed that the nomination application lodged by the first applicant’s sponsor, Konig Constructions Pty Ltd, was not approved (CB 28). That decision was then appealed to the Tribunal and the Tribunal ultimately upheld the delegate’s decision (CB 39).
In circumstances where there was no valid nomination before it, the Tribunal made the only decision open to it. Relevantly, the first applicant’s “rightful” conduct was not a factor the Tribunal could assess: Begum v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 222 (“Begum”) at [20]. Visas such as those sought here are “tied” to the sponsor and the approval of a specific nomination by that sponsor. It is a requirement that the sponsor’s nomination application be successful for the visa applicant to be successful: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh”) at [88]-[90]. Once that requirement is not met, all other considerations fall away.
In the circumstances, the Tribunal came to the only decision it could have reached. No jurisdictional error arises in relation to ground 3 or paragraph 10 of the statements in the first applicant’s affidavit.
Futility
In written submissions filed on 16 March 2022, the Minister contends (at [10]) that, in the event there is an error in the Tribunal’s decision (which is not conceded), the Court must nonetheless deny relief as remitting the matter to the Tribunal would prove futile.
The Court agrees.
On the evidence before the Court, it is clear that the nomination application was refused and the sponsor did not seek, and has not sought, judicial review of that refusal. There are no “live” proceedings relating to the first applicant’s nomination application which could be resolved in the applicants’ favour. The decision not to approve the relevant nomination application still stands. Further, noting the affidavit of Adam Cunnynghame (ACX-1), it is clear that the first applicant’s sponsor (Konig Constructions Pty Ltd) was deregistered by the Australia Securities and Investments Commission on 15 November 2015.
In the circumstances, any remittal of this matter to the Tribunal would be futile as “the visa application is doomed to fail”: Singh (and affirmed in Begum at [22]). The Tribunal would, again, have no choice but to find that the first applicant does not meet cl 186.233 in Schedule 2 of the Regulations as the first applicant is not the subject of a valid nomination. The application process is a “once off” process tied to the sponsor’s nomination application which, here, has been denied. This means that the first applicant will, on any view, fail if the matter is remitted to the Tribunal.
Ministerial Intervention
In a written statement sent to chambers on 28 March 2022, the applicants seem to request assistance from the Court with “Ministerial Intervention” on the basis of the many personal difficulties they are now facing (and will continue to face in the future).
Where, as is the case here, the Tribunal has affirmed a decision refusing the first applicant’s visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
Unfortunately, the Court cannot assist the applicants in this regard. This Court’s jurisdiction is limited to assessing whether the Tribunal had fallen into jurisdictional error. The Court has no powers to “refer” a matter to the Minister for further review on the basis of compassion or otherwise. However, the Court does note, and draws the applicants’ attention to, the Minister’s discretionary powers and notes that the applicants themselves are entitled to seek Ministerial Intervention in their own right.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 2 January 2018 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 March 2022
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