Bharaj Construction Pty Ltd v Minister for Immigration (No. 2)

[2016] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHARAJ CONSTRUCTION PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No. 2) [2016] FCCA 903

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – visa refusal on basis that nominated position was not approved – where jurisdictional error in Tribunal decision in relation to nomination.

Legislation:

Migration Regulations 1994 (Cth), reg.5.19(4)

Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2

Applicant: BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3156 of 2014

Judgment of: Judge Barnes

Hearing date: 10 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Sydney

Delivered on: 28 April 2016

REPRESENTATION

Counsel for the Applicant: Mr Nair

Counsel for the Respondents: Mr Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 27 October 2014.

3. A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 31 October 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3156 of 2014

BHARAJ CONSTRUCTION PTY LTD ABN 881 585 325 51

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) affirming a decision of a delegate of the First Respondent not to grant the Applicants Employer Nomination (Migrant) (Class AN) visas.

2. On 20 June 2012, the Applicants, who are husband and wife and two children, applied for Subclass 119 visas.  The wife and children were secondary applicants for the visa and relied on the claims of Mr Sagoo, who is referred to hereafter as the visa applicant.

3. The visa applicant was “nominated” by Bharaj Construction Pty Ltd (“Bharaj”) for the position of carpenter in Bharaj’s business. 

4. The delegate refused to grant the visa on the basis that Mr Sagoo did not meet cl.119.221(a) in Schedule 2 to the Migration Regulations 1994 (Cth) because the nomination by Bharaj for the position of carpenter was not approved.

5. Bharaj sought review by the Tribunal. It affirmed the delegate’s decision not to grant the visa applicants visas on the sole basis that in a separate decision of the same date it had affirmed the delegate’s separate decision to refuse approval of the nominated appointment under reg.5.19(4) of the Migration Regulations (the nomination decision). On this basis it was found that the visa applicant could not meet the criterion in cl.119.221(a) in Schedule 2 to the Migration Regulations (the visa application decision).

6. Bharaj applied to the court for review of the visa application decision pursuant to s.347(2)(b) of the Migration Act 1958 (Cth) as the visa applicant’s nominator. It also sought review of the nomination decision. In Bharaj Construction Pty Ltd v Minister for Immigration and Border Protection & Anor [2016] FCCA 902 I found that the Tribunal had fallen into jurisdictional error in relation to the nomination decision and ordered that the matter be remitted for reconsideration according to law.

7. There is one ground in the application for review of the Tribunal’s decision in relation to the visa applicants.  It is that the Tribunal exceeded its jurisdiction in that it took into account an irrelevant matter which was the only purportedly crucial matter in the Tribunal’s determination and that the Tribunal misconstrued and misapplied the law and exceeded its jurisdiction.

8. The particulars to this ground refer to the fact that the Tribunal affirmed the visa application decision on the sole basis of its earlier purported decision to refuse to approve the nomination by Bharaj of the position of carpenter, which decision was also the subject of a judicial review application.

9. The Applicant had submitted that the Tribunal had misconstrued and misapplied the law and exceeded its jurisdiction in relation to the nomination decision in finding that the relevant provisions (reg.5.19(4)(a) and reg.5.19(4)(b)) had not been met by the employee nomination. It was submitted that as that decision was vitiated for jurisdictional error, the purported decision to refuse to grant the visa applicant a visa relying on the refusal to approve the nomination was also vitiated by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2 at [76]; FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26 at [67] per Crennan and Bell JJ and Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at [12] and [14]).

10. The Applicant submitted that in considering the visa application the Tribunal could not take into account its finding that the nomination had not been approved because this finding could not be regarded as a finding made under the Migration Act in circumstances where jurisdictional error was established. On this basis it was submitted that such purported finding was therefore an irrelevant consideration for the Tribunal in determining whether or not the visa applicant satisfied the criteria for the grant of a Subclass 119 visa and that as the Tribunal’s reliance on such an irrelevant consideration was the only basis on which it purported to find that the visa applicant did not meet the statutory criteria for the visa, its affirmation of the delegate’s decision to refuse the visa was vitiated by jurisdictional error.

11. The First Respondent conceded in submissions that if the Tribunal’s nomination decision was set aside it followed that the application for review of the visa application decision should also succeed.  I agree.  For the reasons given in Bharaj v Minister for Immigration and Border Protection & Anor, I am satisfied that the Tribunal fell into jurisdictional error in relation to the nomination decision in asking itself the wrong question in relation to the requirement in reg.5.19(4)(b) that the appointment would provide the employee with full-time employment for at least two years in regional Australia.  It follows that as that decision was vitiated by jurisdictional error, similarly the visa application decision was vitiated by jurisdictional error. 

12. It is not in dispute that in such circumstances the appropriate orders are to quash the decision of the Tribunal and require it to re-determine the application according to law. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 28 April 2016