DEEPTI v Minister for Immigration

[2017] FCCA 449

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEEPTI & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 449

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination (Permanent) (class RN) subclass 187 visa – original prospective employer ceasing to operate – first applicant obtaining employment with a new employer – new employer nomination lodged after visa application.

Legislation:
Migration Act 1958, s.359A
Migration Regulations 1994, reg.5.19, Sch 1, cl.187.233

Cases cited:
Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049

First Applicant: DEEPTI

Second Applicant: SANJIV KUMAR

Third Applicant: GEETANJALI

Fourth Applicant: PARIDHI BHATIA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 655 of 2015

Judgment of: Judge Riley

Hearing date: 17 November 2016

Date of last submission: 17 November 2016

Delivered at: Melbourne

Delivered on: 10 March 2017

REPRESENTATION

Advocate for the first applicant: In person

Solicitors for the first applicant: None

Advocate for the second applicant: No appearance

Solicitors for the second applicant: None

Advocate for the third applicant: No appearance

Solicitors for the third applicant: None

Advocate for the fourth applicant: No appearance

Solicitors for the fourth applicant: None

Counsel for the first respondent: Nick Wood

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 31 March 2015 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 655 of 2015

DEEPTI

First Applicant

And

SANJIV KUMAR

Second Applicant

And

GEETANJALI

Third Applicant

And

PARIDHI BHATIA

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants Regional Employer Nomination (Permanent) (class RN) subclass 187 visas. 

2. The first applicant is the wife of the second applicant.  They are the parents of the third and fourth applicants.  Only the first applicant appeared at the hearing before this court.

3. The applicants applied for regional employer nomination class RN permanent visas.  The application indicated that the first applicant’s prospective employer, Red Tomato Restaurant, had nominated the first applicant for a position as a cook.  Later, the applicants indicated to the Department that the first applicant’s prospective employer was Sri Ragir Pty Ltd trading as Red Tomato Restaurant and Pizza House.

4. In the meantime, Red Tomato Pty Ltd, which was a different corporation, applied to the Minister for approval of the nomination of the first applicant for a position of cook.

5. On 31 October 2013, a delegate of the Minister refused the employer nomination on the basis that there was incorrect information in the nomination form.  Red Tomato Pty Ltd applied to the Tribunal for review of the nomination refusal.

6. The application for review of the refusal of the employer nomination had not been determined by the Tribunal by the time the delegate refused the applicants’ visa applications. The delegate’s refusal of the applicants’ visa application was based on the applicants not meeting the criteria in cl.187.233 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

7. Clause 187.233 of Schedule 2 to the Regulations provided that:

   (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)      subregulation 5.19(4)(h)(ii); or

   …

   (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.

   (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.

8. The declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 to the Regulations is a declaration that the position to which the application relates is, relevantly, a position nominated under reg.5.19 of the Regulations. The position nominated under reg.5.19 of the Regulations is the position in the employer nomination.

9. The applicants sought review by the Tribunal of the delegate’s refusal of their visa applications.  The applicants advised the Tribunal that the first applicant was currently working as a cook with Alice Food Concepts Pty Ltd trading as Flavour of India.  The business manager of Alice Food Concepts Pty Ltd said in a letter that the business was willing to sponsor the first applicant and would be happy to lodge an employer nomination in the near future.

10. The applicants attended a hearing before the Tribunal with their migration agent.  They advised the Tribunal that Sri Ragir Pty Ltd had not been operating for some time.

11. Shortly after the Tribunal hearing on the applicants visa applications, the Tribunal affirmed the delegate’s decision to refuse the employer nomination made by Red Tomato Pty Ltd. The Tribunal in the present matter sought the applicants’ comments on that information pursuant to s.359A of the Migration Act 1958 (“the Act”).

12. The applicants responded saying that the employer and the migration agent had given the wrong ABN number to the Department but that the first applicant’s experience was genuine.  The applicants also provided another letter from the business manager of Alice Food Concepts Pty Ltd saying that he had lodged an employer nomination with the Department. The applicants sought further time to lodge a new visa application. 

13. The Tribunal refused to grant the applicants more time and affirmed the delegate’s decision.  The Tribunal said that the new nomination was not directly relevant to the application currently before the Tribunal.  The Tribunal explained this in paragraphs 13 and 14 of its reasons for decision as follows:

    13.This is because cl.187.233 requires that any approved position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. The position which was the subject of the declaration was related to the one made by Red Tomato Pty Ltd (Nomination TRN EGO2ACL532). Notwithstanding the issue of the wrong details for the business being entered, that nomination was not, and has not, been approved. The tribunal further notes that the applicant has not been working for the previous nominator since January 2014, and it does not consider that it should delay its decision in this case in relation to a nomination application made by a different employer.

    14.Even if the subsequent nomination lodged by a different employer was approved, it is not relevant to the application currently before the Tribunal. The visa in relation to this application cannot be granted on the basis of a nomination lodged by a different employer. In addition, whether or not the new nomination will be approved is unknown, and thus any possible future employer nominated visa application is also uncertain. The Tribunal considers it appropriate to proceed to a decision in these circumstances and finds that the applicant does not meet the requirements of cl.187.233.

Ground of application

1. The ground of review in the application filed on 31 March 2015 is:

   We applied for Regional Employer Nomination (Permanent) (class RN) subclass 187 visa to the department of immigration on 17 April, 2013. Our application was refused by department of immigration.

   We applied for the review on the decision made by delegate to the tribunal. We appeared before the tribunal and presented arguments and gave evidence in the favour of our application. However, the tribunal made the decision against our application.

   I am not satisfied with the decision made by MRT

   I believe there is an error, therefore, I want to appeal against the decision in the court.

   (errors in original)

2. The application as drafted is clearly seeking merits review.  At the hearing before this court, the first applicant was unable to identify any error on the part of the Tribunal that might amount to a jurisdictional error.

3. The first applicant told the court that her employer had given the wrong ABN number to the Department.  That might be so.  However, as the first respondent’s submissions explain, the legislative scheme requires that the application for approval of a nomination must be made before the visa application is lodged.

4. In the present case, the nomination by Red Tomato Pty Ltd had been refused by the delegate and that refusal had been affirmed by the Tribunal. There had been no application for judicial review of that decision.  Therefore, the decision on the Red Tomato Pty Ltd nomination must for present purposes be accepted as correct.  As that nomination had been refused, the applicants are not eligible for visas on the basis of it.

5. The first applicant’s second employer nomination, which was in respect of her current employment with Alice Food Concepts Pty Ltd, was lodged after the visa applications were lodged.  Because of the timing, the applicants’ second employer nomination is incapable of satisfying the legislative requirements.  Consequently, there could not have been different outcome even if the Tribunal had delayed its decision.

6. Apart from the timing issue, there was also the requirement that the employer nomination that the applicants rely on be the employer nomination mentioned in the visa application.  In the present case, the employer nomination mentioned in the visa application was from Red Tomato Restaurant.  Leaving aside whether the original proposed employer was Sri Ragir Pty Ltd or Red Tomato Pty Ltd, the fact is that the employer nomination that the applicants wished to rely on was from Alice Food Concepts Pty Ltd.  As that employer nomination was not mentioned in the visa application, it was not capable of satisfying the legislative requirements.

7. Judge Smith of this court construed the legislative scheme as outlined above in Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049. There was an appeal against the decision of this court in Hasan.  The decision in the present matter was reserved pending the outcome of that appeal.  However, the appeal was discontinued on 21 February 2017.

8. For reasons of judicial comity, I should follow the decision in Hasan unless I consider it to be plainly wrong.  I do not consider it to be plainly wrong.  Therefore, I must follow it.

9. I have been unable to detect any jurisdictional error in the Tribunal’s decision or decision-making process. The Tribunal afforded the applicants procedural fairness by giving them a hearing and by alerting them to a relevant issue under s.359A of the Act. The Tribunal did not misapply the law, take into account any irrelevant considerations or fail to take into account any relevant considerations. It was not legally unreasonable for the Tribunal to refuse to give the applicants further time in circumstances where further time could not have made a difference to the outcome of the review before the Tribunal.

Conclusion

1. As it has not been possible to identify any jurisdictional error made by the Tribunal in this case, the application must be dismissed with costs.

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

Date:     10 March 2017