Biriasar v Minister for Immigration

[2017] FCCA 1005

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRIASAR v MINISTER FOR IMMIGRATION [2017] FCCA 1005

Catchwords:
MIGRATION – Skilled visa – no approved sponsor at the time of the application – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476(1)

Applicant: DHARMA RAM BIRIASAR

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 1598 of 2015

Judgment of: Judge McNab

Hearing date: 9 May 2017

Date of Last Submission: 9 May 2017

Delivered at: Melbourne

Delivered on: 9 May 2017

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 13 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1598 of 2015

DHARMA RAM BIRIASAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant filed an application on 27 July 2015 to review a decision of a delegate of the respondent. The delegate, by decision dated 18 June 2015, refused to grant the applicant a Skilled (Provisional) (Class UC) visa.

2. The proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Migration Act’), and accordingly the applicant must show jurisdictional error in the delegate’s decision in order to obtain the relief that he seeks.

3. The applicant’s grounds of application are:

   1.   Applicant had lodged an application for Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 13 November 2014.

   2.   I am a genuine applicant and my sponsor requires my skills in his business

   3.   After receiving the refusal notification from the Immigration Department, the applicant wants to have the decision reviewed, and then decided to apply at the judicial law courts.

   4.   Now the applicant wishes to have this decision reviewed as he believes that his case is strong as he is genuine and truthful and the wrong decision should be corrected.  The applicant is skilled and knowledgeable in the area in which he is being sponsored in.

   5.   The applicant wishes for a fair chance and requests the judicial courts to kindly review the matter providing with justice as he has been denied justice.

Background

1. The applicant, who is a citizen of India, applied to the Department of Immigration for a 457 visa on 13 November 2014.  The application was in relation to the nominated position of Fleet Manager with the applicant’s prospective employer, Mr Upinder Singh Sidhu.  The applicant made the application with the assistance of a migration agent.

2. On 13 November 2014, the sponsor made an application for a related Business Visa nomination in relation to the nominated position.

3. On 13 May 2015, a delegate of the Minister made a decision refusing the sponsor’s nomination application. The letter from the Department to the prospective sponsor included a notice that the prospective sponsor was entitled to apply to the Migration Review Tribunal for a review of the decision within 21 days after the date it had been received.[1]

   [1] court book, 85.

4. The sponsor did not seek merits review of the nomination refusal decision, and the sponsor did not make a new nomination application in relation to the nominated position.

5. On 13 May 2015, the Department wrote to the applicant inviting him to comment on the relevant information, being the refusal to give the sponsor approval. The invitation set out that one of the criteria for the grant of the visa was an approved nomination.[2] The applicant was provided 28 days within which to provide any comments or evidence of an approved nomination. The Department did not receive any response from the applicant to the invitation.

   [2] court book 95- 98.

6. The grant of the visa that the applicant applied for included requirements set out in in cl.457.223(4)(a), which states that:

   The applicant meets the requirements of this subclause if:

   (a) each of the following applies:

   (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii) the approval of the nomination has not ceased as provided for in regulation for in regulation 2.75.

7. The nomination of the sponsor was not approved and the applicant had not withdrawn the application in writing.

8. The decision of the Department set out the criteria which must be met, and it correctly found that:

   a)the business sponsor was not approved at the time of dealing with the application; and

   b)the applicant had been given an opportunity to comment, including providing evidence that they are the subject of the approved nomination or withdraw the application. It held that the applicant did not satisfy the grant of the Temporary Work (Skilled subclass 457 visa because there was no approved nomination by a sponsor.[3]

   [3] court book, 99-103.

9. I can find no error on the part of the decision maker in relation to this decision.

10. Grounds 2 to 4 are at best, an attempt to engage in merits review of the Department’s decision insofar as the applicant asserts that there has been some denial of natural justice.

11. Ground 5, in my view, is not sustained.  The applicant was notified of the decision not to approve the nomination of the business sponsor.  There is no evidence that he was otherwise denied any opportunity to make submissions as part of that process. 

12. In those circumstances, I find there is no error established in the decision of the respondent. I dismiss the application filed on 27 July 2015 and order that the applicant pay the respondent’s costs fixed in the sum of $5,800.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 16 May 2017