Bharaj Construction Pty Ltd v Minister For Immigration and Anor (No.4)

[2019] FCCA 32

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No.4) [2019] FCCA 32

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – outcome dependent on decision in a consolidated proceeding – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.5.19

Cases cited:

Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection and Anor (No.3) [2019] FCCA 31

Applicant: BHARAJ CONSTRUCTION PTY LTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 525 of 2017

Judgment of: Judge Nicholls

Hearing date: 5 July 2018

Date of Last Submission: 5 July 2018

Delivered at: Sydney

Delivered on: 9 January 2019

REPRESENTATION

Counsel for the Applicant: Mr R Nair by Direct Access

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 22 February 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $1501.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 525 of 2017

BHARAJ CONSTRUCTION PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 February 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 February 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) refusing an Employer Nomination (Migrant) (Class AN) visa to Mr Sarbjit Singh Sagoo and the secondary visa applicants.

2. The applicant in these proceedings Bharaj Construction Pty Ltd (“Bharaj”). Bharaj was the nominating business for the grant of the visa to Mr Sagoo (and the secondary visa applicants) and the review applicant before the Tribunal (see CB 5 and CB 106 to CB 125). This matter was heard together with proceedings SYG 524 of 2017 (see Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection and Anor (No.3) [2019] FCCA 31 (“No.3”) and relevant paragraphs). Bharaj was also the applicant in those proceedings and sought review of the decision of the Tribunal to refuse its application for approval of a nomination under reg.5.19 of the Migration Regulations 1994 (Cth) (“the Regulations”). This judgment needs to be read with that judgment.

3. The evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

1. On 20 June 2012, Mr Sagoo applied for an Employer Nomination (Migrant) (Class AN) visa via the Regional Sponsored Migration Scheme to work in the position of Carpenter (Australia New Zealand Standard Classification of Occupations (“ANZSCO”) Code 331212) (CB 1 to CB 96 and see CB 5). Mr Sagoo’s wife and two children applied as members of Mr Sagoo’s family unit.

2. By letter dated 3 October 2013, the Minister’s department wrote to Mr Sagoo inviting him to comment on adverse information in relation to his visa application (CB 97 to CB 99). That letter included the following (CB 98):

   “The nomination submitted to the [Minister’s] department by BHARAJ CONSTRUCTION PTY LTD listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved.”

3. Mr Sagoo did not respond to the invitation and the delegate refused the application for the visa on 31 October 2013 (CB 100 to CB 105). Bharaj applied for review of the delegate’s decision to the Tribunal on 7 November 2013 (CB 106 to CB 125). Bharaj was invited to, and attended, a rescheduled hearing before the Tribunal on 21 July 2014 (CB 130 to CB 133 and CB 144 to CB 146). Mr G.S. Bharaj the sole director of Bharaj, attended the Tribunal hearing and gave oral evidence. Mr Sagoo also attended the Tribunal hearing.

4. The Tribunal affirmed the delegate’s decision on 9 February 2017 (CB 166 to CB 172). The Tribunal considered that “[c]lause 119.221 [of the Regulations] require[d] that, at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn” ([17] at CB 171).

5. The Tribunal found that it made a decision on 23 January 2017, to refuse Bharaj’s application for approval of a nomination of the occupation of carpenter for which Mr Sagoo was the nominee. Therefore, the Tribunal found that “the appointment in the business of the employer [Bharaj] for which the visa applicant [Mr Sagoo] has been nominated ha[d] not been approved” ([19] at CB 172). Therefore Mr Sagoo, the visa primary applicant, did not meet cl.119.221(a) of Schedule 2 to the Regulations ([20] – [21] at CB 172) . Therefore, the Tribunal affirmed the delegate’s decision to refuse the relevant visas to Mr Sagoo and the secondary visa applicants ([22] – [24] at CB 172).

The Application to the Court

1. As stated above, Bharaj made its application to the Court on 22 February 2017. The sole ground of that application is in the following terms:

   “1. The Tribunal refused to grant visa applicant employer nomination visa because tribunal said that applicant’s nomination of position of carpenter in the applicant business had not been approved. The Tribunal made jurisdictional error when its refused to approved the nomination. This means that the tribunal made jurisdictional error when it’s refused to grant the visa.”

   [Error in original.]

Consideration

1. It was common ground between the parties that the outcome of this application was dependent on the outcome of Bharaj (No.3).

2. As set out in Bharaj (No.3), Bharaj was not successful in its application for relief in relation to the Tribunal’s decision in that case.  What remains therefore is that this application for review cannot succeed.

3. Absent an employment nomination the visa applicant Mr Sagoo cannot meet all of the requirements for the grant of the visa he seeks.  There is no legal error in the Tribunal’s decision to refuse the grant of the visa.

Conclusion

1. In the circumstances it is appropriate to dismiss this application.  I will make the appropriate order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  9 January 2019