Deepti v Minister for Immigration and Border Protection
[2017] FCA 1320
•8 November 2017
FEDERAL COURT OF AUSTRALIA
Deepti v Minister for Immigration and Border Protection [2017] FCA 1320
Appeal from: Deepti & Ors v Minister for Immigration & Anor [2017] FCCA 449 File number: VID 311 of 2017 Judge: PAGONE J Date of judgment: 8 November 2017 Date of publication of reasons: 10 November 2017 Catchwords: MIGRATION – review of decision to refuse Regional Sponsored Migration visa – no reviewable error – merits review impermissible – appeal dismissed Legislation: Migration Act 1958 (Cth) Date of hearing: 8 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 6 Counsel for the First Appellant: The first appellant appeared in person, with the assistance of an interpreter Counsel for the Second Appellant: The second appellant was present at the hearing Counsel for the Third and Fourth Appellants: The first appellant appeared in person as the legal representative of her children, who are the third and fourth appellants in these proceedings Counsel for the First Respondent: Mr B Petrie Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent submits save as to costs ORDERS
VID 311 of 2017 BETWEEN: DEEPTI
First Appellant
SANJIV KUMAR
Second Appellant
GEETANJALI (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
8 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The first appellant be appointed, pursuant to rr 9.61 and 9.62 of the Federal Court Rules 2011 (Cth), as the legal representative of her children, who are the third and fourth appellants in these proceedings
2.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an appeal from the decision and orders made on 26 November 2016 by Judge Riley in the Federal Circuit Court dismissing an appeal from the Migration Review Tribunal which had affirmed the decision of a delegate of the Department of Immigration and Border Protection to refuse to grant a Regional Employer Nomination (Permanent) (Class RN) Visa under to s.65 of the Migration Act 1958 (Cth) (the Act). The first appellant appeared in the company of the second appellant who is her husband. They were unrepresented but appeared with the assistance of an interpreter. The third and fourth appellants are the children of the first and second appellants, and the first appellant was appointed as legal representative of her children for the purposes of the proceeding.
The first appellant is an Indian National who applied on 17 April 2013 for a Regional Sponsored Migration Scheme (Class RN) visa. It was a condition for the grant of the visa that the first appellant had an approved nomination from an employer. The first appellant’s prospective employer had sought approval but that application was unsuccessful. The appellants were informed that consequently the application of the first appellant was also unsuccessful.
On 31 March 2015 the appellants sought review of the decision by the Tribunal affirming the decision of the Minister’s delegate. That application was rejected on the basis that no reviewable error had been shown. Her Honour’s reasons said at [14]-[22]:
Ground of application
14. 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)
15.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.
16.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.
17.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.
18.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.
19.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.
20.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.
21.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.
22.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.
The appellants now appeal from that decision to this Court.
The grounds of appeal to this Court, like those to the Federal Circuit Court, essentially seek impermissible merits review. The grounds were stated in the notice of appeal as follows:
1.I hereby request the court to accept my appeal application against the decision made in court on 10/03/2017.
2.We applied for regional employer nomination class RN permanent visas with Red Tomato Restaurant for a position as a cook. Unfortunately, the delegate of the Minister refused the application because the employer and the migration agent provided the in correct ABN number to the Department though I was working with business as cook.
3.We went to MRT to review the decision of delegate’s refusal of our visa applications. Meanwhile, Red Tomato Pty Ltd got t out of business. That time, I was working with Alice Food Concepts Pty Ltd trading as Flavour of India as a cook. I 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. We only requested for further time to lodge a new visa application. But 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.
4.We then knock doors of the Federal Circuit Court for justice but to our disappointment the Honourable Judge dismissed our case where we strongly feel that the judgment lack natural justice and jurisdictional error of not considering my genuine jobs as cook with the employers in question.
5. Therefore we now request the court to accept our appeal application.
A written submission was filed in support of the application setting out facts relevant to the application but without identifying any error in her Honour’s decision. The first and second appellants made oral submissions through the interpreter and, in part, directly in English, in which they sought to review the merits of the decision by asking for further time for their application. Merits review is not permissible in this appeal and the Court has no discretion to grant further time in which to have considered the application.
The matters in paragraphs 1, 2, 4 and 5 of the notice of appeal explain the appellants’ disappointment with the failure of the application for a visa but do not describe anything able to be understood as a reviewable error. The matter in paragraph 3 of the notice of appeal complains about a failure by the Tribunal to have granted them further time to lodge a new visa application but nothing was shown to warrant the conclusion that the Tribunal’s decision was reviewably incorrect. Her Honour concluded at paragraph [22] that it was not legally unreasonable for the Tribunal to have refused to give the appellants further time in circumstances “where time could not have made a difference to the outcome of the review before the Tribunal”. The appellants have not shown that conclusion by her Honour to be erroneous.
Accordingly, the appeal will be dismissed with costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 10 November 2017
SCHEDULE OF PARTIES
VID 311 of 2017 Appellants
Fourth Appellant:
PARIDHI BHATIA
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