Damania v Minister for Home Affairs

[2020] FCCA 711

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMANIA v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 711

Catchwords:
MIGRATION – Regional Employer Nomination (Permanent) visa – refusal – review by Administrative Appeals Tribunal – no matter of principle.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359C, 360, 363A, 474
Migration Regulations 1994 (Cth), reg.5.19, sch.2, cl.187.233

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: DHRUVKUMAR RAJENDRAPRASAD DAMANIA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1698 of 2018

Judgment of: Judge Cameron

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Sydney

Delivered on: 30 March 2020

REPRESENTATION

Counsel for the Applicant: Ms R. Lahoud

Counsel for the Respondents: Mr G. Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1698 of 2018

DHRUVKUMAR RAJENDRAPRASAD DAMANIA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 31 August 2015 the applicant lodged an application for a Regional Employer Nomination (Permanent) (Subclass 187) visa with what is now the Department of Home Affairs (“Department”). On 12 October 2016 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. The employer who had nominated the applicant for the position in question, “Health Practice Manager” was Medinova Pty Ltd (“Medinova”).  Medinova’s nomination was unsuccessful at the departmental level and then again on review before the Tribunal.  Medinova has sought judicial review of the Tribunal’s decision on the nomination and that proceeding was heard concurrently this with one.

3. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

LEGISLATION

1. Regulation 5.19 of the Migration Regulations 1994 (“Regulations”) empowers the Minister to approve the nomination by an employer of a position for the purposes of it being filled by an identified non-citizen. The version of reg.5.19 which applied in this case is the one in force at the time of nomination and it relevantly provides:

   5.19  Approval of nominated positions (employer nomination)

   (1)A person (a nominator) … may apply to the Minister for approval of the nomination of a position in Australia.

   …

   Direct Entry nomination

   (4)The Minister must, in writing, approve a nomination if:

   (a)    the application for approval:

   …

   (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)     is actively and lawfully operating a business in Australia; and

   (ii)    directly operates the business; and

   …

   (d)both of the following apply:

   (i)     the employee will be employed on a full‑time basis in the position for at least 2 years;

   (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

   (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

   (i)     are provided; or

   (ii)    would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

   …

   and

   (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

   (h)    either:

   (i)     both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;

   (B)either:

   (I)     the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub‑sub‑subparagraph; or

   (II)   the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub‑sub‑subparagraph (I); or

   (ii)    all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (II)   located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub‑subparagraphs (B) and (C).

   (5)The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

   …

2. The version of cl.187.233 of sch.2 of the Regulations which applies in this case relevantly provides as follows:

   187.233 

   (1)The position to which the application relates is the position:

   (a)nominated in an application for approval that seeks to meet the requirements of:

   (i)     subparagraph 5.19(4)(h)(ii); or

   (ii)    subregulation 5.19(4) as in force before 1 July 2012; and

   (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)The person who will employ the applicant is the person who was the nominator in the application for approval. 

   (3)The Minister has approved the nomination.

   (4)The nomination has not subsequently been withdrawn.

   (5)The position is still available to the applicant.

   (6)The application for the visa is made no more than 6 months after the Minister approved the nomination.

3. Section 359A of the Act relevantly provides:

   359A Information and invitation given in writing by Tribunal

   (1)    Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

4. Section 359C of the Act relevantly provides:

   359C Failure to give information, comments or response in response to written invitation

   …

   (2)    If the applicant:

   (a)is invited under section 359A to comment on or respond to information; and

   (b)does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

5. Section 360 of the Act relevantly provides:

   360 Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

   (2)Subsection (1) does not apply if:

   …

   (c) subsection 359C(1) or (2) applies to the applicant.

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

6. Section 363A of the Act provides:

   363A Tribunal does not have power to permit a person to do something he or she is not entitled to do

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

BACKGROUND FACTS

1. In its decision, the Tribunal summarised relevant background facts.  As summarised by the Tribunal, those facts were:

   a)the applicant’s application concerned a nominated position of health practice manager under the Direct Entry stream of the Regulations;

   b)the delegate found that because the nomination had been refused, the applicant did not meet the requirements of cl.187.233 of sch.2 of the Regulations and so refused to grant him a visa;

   c)on 26 April 2018 the Tribunal notified the applicant pursuant to s.359 of the Act that his sponsor’s nomination had been refused and that its review application to the Tribunal had been unsuccessful. The Tribunal noted the information was relevant to the review because it was a requirement for the grant of the visa that the position specified in the visa application be the subject of an approved nomination. The Tribunal invited the applicant to comment on or respond to that information by 10 May 2018; AND

   d)the applicant did not respond to that letter and, as a consequence, the Tribunal decided the matter on the papers.

THE TRIBUNAL’S DECISION AND REASONS

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant met the criteria in the Direct Entry stream. The Tribunal found the applicant had not met the requirements of cl.187.233 because he was not the subject of an approved nomination, or a pending application for approval of a nomination, and so did not meet the requirements of reg.5.19(3). Consequently, it affirmed the decision of the delegate.

2. The Tribunal’s decision was based on the following findings and reasons:

   a)the applicant had to meet cl.187.233’s requirements that the position to which the visa application related be the subject of a successful application under reg.5.19 for the approval of a nominated position and that that application not been withdrawn; and

   b)on 10 April 2018 the Tribunal had affirmed the delegate’s decision to refuse Medinova’s nomination of the applicant as a Health Practice Manager.

THE PROCEEDING IN THIS COURT

1. In the application commencing this proceeding the applicant alleged:

   1.The Tribunal made an error of by [sic] not calling me for the hearing of the application.

   2.The Tribunal refused the Nomination earlier which is also lodged in the court for review and did not wait for the outcome of that application.

CONSIDERATION

Ground 1

1. The argument in relation to the first ground of the application was to the effect that the Tribunal had had a discretion to permit the applicant to appear before it and, implicitly, that the exercise of that discretion had miscarried. However, because the applicant had failed to respond to the Tribunal’s s.359A notice, s.359C(2) of the Act applied to him. That being so, the combined effect of ss.360(2), 360(3) and 363A of the Act was that the Tribunal did not have the power to permit the applicant to appear before it.

2. In those circumstances, the Tribunal did not err by not giving the applicant an oral hearing.

Ground 2

1. The applicant submitted in relation to the second ground of the application:

   … the Tribunal's decision in the determination of the Medinova,[sic] could have been affected by jurisdictional error and it may well have been appropriate to remit the matter back to the Tribunal.

   In such a circumstance, and in the circumstances of the second respondent sending an invitation for information in relation to only one particular which involved the Medinova proceedings, and the fact that the approval of [sic] nominated position was refused by [sic] Minister and affirmed by the Tribunal, and invited the applicant to comment, it seems reasonable and fair to ask that the applicant's hearing be delayed until such time as that information which was only available from the nomination review, could be made available to the Tribunal in order to review the applicant's matter as well.  IN other words it seems obvious why the applicant could not respond to the invitation to comment and provide that information which could only come / have come from waiting for the outcome of the Medinova review.

2. Any suggestion that the Tribunal should have delayed its decision on his review pending an outcome in the Medinova review is misplaced as the s.359A notice to the applicant made it clear that the Tribunal had already affirmed the decision to refuse Medinova’s nomination.

3. Any suggestion that the Tribunal should have delayed its decision on his review until the outcome of any judicial review proceedings concerning the nomination were concluded should also be rejected. The Tribunal was in a position to reach a conclusion on the applicant’s review and the Act enjoined it to determine reviews of part-5 reviewable decisions such as the delegate’s decision concerning the applicant. It did that.

4. A suggestion in addresses that the applicant had sought delay of his review pending action in the Medinova nomination was withdrawn. There is no evidence that the applicant sought such a delay from the Tribunal and so no question of a miscarriage of discretion in that connection arises.

5. In the circumstances, no error has been shown in connection with the matters raised by the second ground of the application.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  30 March 2020