Dahal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1331
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dahal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1331
File number(s): BRG 559 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 6 December 2024 Catchwords: MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa–– judicial review of a decision of the Administrative Appeals Tribunal – no approved nomination at time of decision – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 476(1)
Migration Regulations 1994 (Cth) cl 187.233(2) of Schedule 2
Cases cited: Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224
Odero v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedcFamC2G 910
Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 25 November 2024 Date of hearing: 25 November 2024 Place: Brisbane Solicitor for the Applicants: Mr Sarpong of Kave Law appeared on behalf of the Applicants. Counsel for the First Respondent: Mr Byrnes of Counsel appeared on behalf of the First Respondent instructed by Ms Gough of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs. ORDERS
BRG 559 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RUPA DAHAL
First Applicant
DIPAK GC
Second Applicant
DIANSH GC
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $8371.30.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the first applicant’s application for a Regional Employer Nomination (Permanent) (Class RN) visa.
These proceedings were heard concurrently with the related proceedings in BRG 587 of 2023 (“the related proceedings”).
BACKGROUND
Application for a Regional Employer Nomination Visa and the delegate’s decision
The first applicant (“the applicant”) is a citizen of Nepal. On 30 January 2018, the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) (Direct Entry Stream) visa (“the visa”) (Court Book (“CB”) 20-35). The applicant sought the visa to work in the nominated position of Hair or Beauty Salon Manager. The nominating employer was Elegant Beauty & Brows Pty Ltd (“the sponsor”). On the same day, the sponsor had applied for an Employer Nomination Permanent Appointment in the Regional Sponsored Migration Scheme Visa Subclass 187 Direct Entry for the nominated position of hair or Beauty Salon Manager (ANZSCO 1421-14). The sponsor nominated the applicant for the nominated position.
The applicant’s spouse (“the second applicant”) was included in the application as a member of the first applicant’s family unit (CB 24). The applicant’s child (“the third applicant”) was later included in the application (CB 97-100).
On 11 September 2019, the delegate refused to grant the applicant the visa on the basis that the applicant did not meet cl 187.233(3) in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because she was not the subject of an approved nomination (CB 125-130), the nomination lodged by the sponsor having been refused by the delegate on 13 August 2019. Accordingly, the delegate was also not satisfied that the second and third applicants met
cl 187.311 of Schedule 2 to the Regulations because they were not members of the family unit of a person who held a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of visas.
The decision of the Tribunal affirming the delegate’s decision refusing the application by the sponsor is the subject of the related proceedings.
Application for review to the Administrative Appeals Tribunal
On 20 September 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 131-134).
On 20 September 2019, the Tribunal acknowledged receipt of the application for review and advised the applicants that should they wish to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 136-144).
On 20 March 2023, the Tribunal invited the applicants to attend a hearing on 13 April 2023 to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the material before it alone (CB 189-200).
On 13 April 2023, the first and second applicant attended the hearing. They were assisted by their migration agent (CB 214).
On 22 September 2023, the Tribunal wrote to the applicant inviting her to comment on or respond to information the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or the part of the reason, for affirming the decisions under review
(CB 227-231). The Tribunal told the applicant that the particulars of that information was that on 18 September 2023 the Tribunal had affirmed the decision not to grant an Employer Nomination lodged by Elegant Beauty & Brows Pty Ltd. The Tribunal told that applicant that if it relied on this information, it may find that the applicant does not meet cl 187.233(2) which requires that the nomination be approved and, affirm the decision under review. The Tribunal invited the applicant to respond by 6 October 2023.
On 6 October 2023, the applicant’s migration agent responded stating the applicants did not agree with the decision to refuse the nomination and that they did not wish to withdraw their visa application (CB 232).
On 11 October 2023, the Tribunal affirmed the delegate’s decision. The Tribunal gave written reasons for its decision (“Decision”) (CB 237-241).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal identified that the determinative issue was whether the applicant has an approved nomination where she is identified as the beauty salon manager (Decision [9]).
The Tribunal stated that cl 187.233 of the Regulations requires that the position to which the application related be the subject of an application for approval of a nomination in the Direct Entry stream located in regional Australia. The Tribunal further stated that the position must be the one that was the subject of the declaration made as part of the current visa application and that where the associated nomination was made on or after 1 July 2027, it must identify the applicant in relation to the position (Decision [10]).
Further, the Tribunal identified that this criterion also requires that (Decision [11]):
a. the person who will employ the applicant is the person who made the nomination
b. the nomination has been approved and has not been subsequently withdrawn
c. 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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
d. the position is still available to the applicant, and
e. the visa application was made no more than six months after the nomination of the position was approved. Insert bullet points from para 11 but list as a, b, c etc
The Tribunal stated that by reason of the applicant (by which the Tribunal was referring to the sponsor) not having complied with reg 5.19(4)(h)(ii)(C) being that the nominated position cannot be filled by either an Australian Citizen or an Australian permanent resident who is living in the same local area as that place of employment the nomination application was refused (Decision [13]).
Therefore, the Tribunal concluded that the applicant was not the subject of an approved nomination and did not meet cl 187.233 of the Regulations (Decision [16]). Accordingly, the Tribunal also refused the secondary applicants’ visa as they had applied for the visa as members of the applicant’s family unit (Decision [18]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 13 November 2023. The applicant also filed an affidavit affirmed on 13 November 2023. The affidavit repeats the final orders sought, provides some background information and annexes documents submitted to the AAT and a copy of the delegate’s decision.
On 1 March 2023, the applicant filed an amended application.
On 5 July 2024, procedural orders were made permitting the applicants to file and serve a further amended application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions on or before 28 October 2024. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely on or before 11 November 2024. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the amended application, the applicant’s affidavit, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submissions and the Court Book.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
Despite the procedural order permitting it to do so, the applicant did not file a further amended application. The grounds of review in the amended application are (without alteration but excluding the paragraphs in the application that were struck through):
1.The First Respondent made an error in its decision that clause 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth) was not meet and refused to grant the applicants Regional Employer Nomination (Permanent)(Class RN) visas under s65 of the Migration Act 1958 (Cth).
Particular
The First Respondent committed judicial errors by misinterpreting Regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994 (Cth).
2.The AAT committed judicial errors by failing to consider or address a crucial issue that directly pertains to the genuineness of the nominated position. The AAT omitted and overlooked the issue in relation to Regulation 5.19(4)(h)(ii)(D) of the Migration Regulation 1994 (Cth), specifically the omission of considering the tasks aligned with the nature of the work required by the regional area for that particular position and the occupation. The Applicant submits that this constitutes a denial of procedural fairness as the AAT failed to address a central issue or argument presented by the applicant
Particular
The applicant (employer) is in a remote area where finding skilled candidates is challenging, and the employer has had to expand the job role. As a result, the tasks required for the job could be more detailed. The AAT did not take this into consideration. Furthermore, the AAT did not assess the functionality of the specific business and did not give sufficient weight to the fact that the majority of the tasks aligned with the occupation code, instead focusing on the tasks that may have seemed uncovered but, in reality, were related to the occupation. The Applicant (employer) should be given an opportunity to address this issues.
The Applicant (employer) like to submit some similarities and differences between the Task and duties and of the nominated position as compared to the ANZSCO occupation code 142114.
Similarities:
1. Management of Operations: Both task lists involve managing day-to-day operations, which includes responsibilities related to maintaining stock levels, setting prices, and budgeting for the establishment.
2. Promotion and Advertising: Both lists include tasks related to promoting and advertising the establishment's goods and services.
3. Staff Management: They both involve aspects of staff management, including training, supervision, and selection of employees.
4. Financial Records: Both lists mention maintaining records of financial transactions or budgets for the establishment.
5. Compliance: Ensuring compliance with occupational health and safety regulations is a shared responsibility in both lists.
Differences:
1. Client Interaction: Task of nominated position places a significant emphasis on client interaction, including managing appointments, customer service, and promoting products and services to clients. ANZSCO occupation code 142114 doesn't explicitly mention these client-facing responsibilities.
2. Document and Administration Tasks: Task of nominated position specifies responsibilities related to nominated administration tasks, documentation, and liaising between salon owners, team members, and clients, which are not mentioned in ANZSCO occupation code 142114.
3. The ANZSCO occupation code 142114 explicitly mentions the tasks of determining product mix and service standards, which are not clearly outlined in the nominated position. However, if the first respondent had taken a broader approach to analyzing the tasks, they might have concluded that these tasks were indeed covered by the nominated position.
3.The Applicant (employer) submits and holds concerns that the AAT exhibited an apprehension of bias by disregarding and making speculative judgments about the genuine efforts to employ an Australian Resident and by not recognising them as bona fide. The AAT failed to approach the matter in an impartial manner, which raises further potential bias that may have influenced the ultimate decision.
Particular
The Applicant submits that the AAT took a subjective approach when assessing the methodology of the job advertisement. The AAT’s delegate relied on the fact that the job advertisements were run for a relatively short period using no-cost to low-cost advertising despite there are not legislative requirements on how the job advertisements should be listed.
The job advertisement was a sincere attempt to hire locally or employ Australian residents in the first place. The applicant (employer) recently posted on 18 August 2023 a new job advertisement in accordance with the new regulations to demonstrate the absolute need for sponsorship, as no suitable local candidates applied for the role. The AAT disregarded the applicant's (employer) efforts as genuine and expressed dissatisfaction. They also speculated that the applicant (employer) would not hire the new candidates.
4.The AAT’s decision directly and materially breached the above legitimate expectation. This breach of legitimate expectation had a notable influence on the final outcome of the appeal. This failure to uphold the Applicant's (employer) legitimate expectation constitutes a breach of procedural fairness and natural justice.
Particular
The AAT failed to consider the business needs and the requirements of the position. The Applicant submits that they held a legitimate expectation based on a letter they received from Regional Development Australia (RDA) Northern Rivers NSW concerning their regional sponsored migration scheme application. The contents of this letter are clear and unambiguous, and it conveyed a sense of assurance and belief to the Applicant (employer). In essence, the letter gave the Applicant (employer) to believe that confirmation was being made. Consequently, the Applicant (employer) relied on this legitimate expectation, trusting that the letter was consistent with or aligned with the Subclass 187 visa application.
The legitimate expectation was further reinforced by the receipt of a positive skill assessment issued by VETASSESS. This assessment led the Applicant (employer) to believe that the nominated position would indeed meet the necessary requirements for the role. The Applicant (employer) relied on this legitimate expectation when taking into account the requirement to the fulfillment of the nominated position and their assessment on the job advertisement that was posted for 21 days on Jobsearch and in the local newspaper twice (which appeared to be the preferred choice at the time) but deemed it not genuine. The AAT failed to recognise that this was a genuine effort by the employer to recruit locally or hire Australian residents, as required by the legislation. Additionally, there was no legislative requirement at the time to specify the salary in the job advertisement. The AAT overlooked the requirement that makes it mandatory to have a genuine job advertisement.
At the hearing, the applicant’s solicitor agreed with the Court that the grounds of review in the amended application were not properly grounds of review in respect of the Tribunal’s decision the subject of these proceedings but were grounds of review in respect of the decision of the Tribunal the subject of the related proceedings. The applicant’s solicitor also told the Court that the applicants in these proceedings did not press any independent grounds of review in respect of the Tribunal’s decision affirming the delegate’s decision to refuse the applicant’s application for the visa.
The sole issue for the Tribunal in this matter was whether the applicant was the subject of an approved nomination as required by cl 187.233 in Schedule 2 of the Regulations. The applicant was not the subject of an approved nomination. Clause 187.233 in Schedule 2 of the Regulations does not give the Tribunal any discretion to consider other factors (Odero v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedcFamC2G 910 (“Odero”) at [53]-[56] per Kendall J). Accordingly, the applicant could not satisfy the criterion in cl 187.233(3) of the Regulations. In Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110 (“Singh”), the Full Court of the Federal Court held that “the position” referred to in cl 187.233(3) is a ‘particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances’: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88] per Jagot, Bromberg and Mortimer JJ; (2017) 253 FCR 267 at [287]; cited with approval in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [141] per Charlesworth, O'Sullivan and Raper JJ). The scheme is a ‘once off’ process so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate): (see; Singh at [90] per Jagot, Bromberg and Mortimer JJ; Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 at [95] – [97] per Kendall J; Odero at [58] – 59] per Kendall J; and, Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224 at [29] per Beach J). It follows that there was no jurisdictional error by the Tribunal.
The applicant’s solicitor agreed with the Court that if the application in the related proceedings were dismissed it would necessarily follow that the application in these proceedings would be dismissed.
The Court dismissed the application in the related proceedings for the reasons given there. Accordingly, for the reasons set out above, the application in these proceedings is dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 6 December 2024
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