Dhawan v Minister for Immigration

[2016] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHAWAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3359

Catchwords:
MIGRATION – Judicial review application – employer nominated visa ‑ Employer Nomination (Residence) (Class BW) visa – nominated employer no longer in business – whether procedural unfairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 476

Migration Regulations 1994 (Cth), reg.5.19(2), c1l.856.213(a) and (b), 856.221

Cases cited:

Babar & Ors v Minister for Immigration and Anor [2016] FCCA 1521

Islam v Minister for Immigration and Border Protection [2015] FCCA 617 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1

Applicant: SANGEETA DHAWAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 4 of 2016

Judgment of: Judge Lucev

Hearing date: 21 December 2016

Date of Last Submission: 21 December 2016

Delivered at: Perth

Delivered on: 23 December 2016

REPRESENTATION

For the Applicant:	No appearance
Counsel for the First Respondent:	Mr E Solana

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS (as made on 21 December 2016)

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $5800 by 21 January 2017.

3. Written reasons for judgment be published electronically from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 4 of 2016

SANGEETA DHAWAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Sangeeta Dhawan, has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 16 December 2015, is at Court Book (“CB”) 352-354. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant an Employer Nomination (Residence) (Class BW) visa (“Residence Visa”).

Orders made

1. The applicant did not attend the hearing by the Court of her Judicial Review Application. Having read the relevant papers, and being satisfied that the applicant had been notified of the date and time of the hearing by the Court, and the matter having been called outside the hearing room, the Court made the following orders:

   (1) The application be dismissed.

   (2) The applicant pay the first respondent’s costs in the sum of $5800 by 21 January 2017.

   (3)Written reasons for judgment be published electronically from Chambers at a later date.

2. What follows are the reasons for judgment referred to in order 3 of the orders set out above.

Background prior to the Tribunal Decision

1. The background prior to the Tribunal Decision is as follows:

   a)the applicant, a citizen of India, lodged an application for the Residence Visa on 8 September 2011: CB 1-21;

   b)on 14 February 2012, the nomination application lodged by Doh Enterprises Pty Ltd ATF The Darling Trust and others (“the Sponsor”) in relation to the applicant was approved: CB 136-137;

   c)on 17 September 2012, the Delegate refused the grant of the Residence Visa: CB 175-178 (“Earlier Delegate’s Decision”). The Delegate found that the applicant had not worked full-time for at least three years prior to the date of lodgement in the occupation for which she had been nominated: CB 177;

   d)the applicant subsequently applied for review of the Earlier Delegate’s Decision to the Tribunal and the matter was remitted to the Department with the direction that the applicant met c1.856.213(b) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“Earlier Tribunal Decision”): CB 181-186;

   e)on 12 February 2015, the applicant was invited to comment on information that the Sponsor was no longer operating the business: CB 298-301;

   f)on 11 March 2015, the applicant provided a response explaining that the business had been sold and contending that she would have been granted a Residence Visa earlier had it not been for the delay in the delivery of the Earlier Delegate’s Decision and the Earlier Tribunal Decision: CB 309. The applicant requested that the Delegate consider the application on compassionate grounds: CB 309;

   g)on 26 March 2015, the Delegate’s Decision was to again refuse to grant the applicant a Residence Visa: CB 316-318. The Delegate found that the applicant did not meet the requirements of c1.856.221 of the Migration Regulations as the Sponsor had sold the business and the nominated position was no longer available to the applicant: CB 317; and

   h)on 13 April 2015, the applicant lodged an application for review to the Tribunal in respect of the Delegate’s Decision of 26 March 2015: CB 319-329.

Tribunal Decision

1. On 16 December 2015, following a hearing on the same day, the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Residence Visa: CB 345 and 352-354.

2. The Tribunal noted that the applicant had been nominated by the Sponsor in an application lodged on 7 June 2011: CB 353 at [9], however found that there was no evidence that the nomination was still available to the applicant, or that the applicant continued to satisfy the criteria for approval as the Sponsor was no longer trading as a business: CB 354 at [11].

3. In reaching that finding the Tribunal had regard to the applicant's oral evidence and records indicating that the Sponsor's ABN was cancelled from 27 January 2015 and that the Sponsor's business name was deregistered on 11 October 2015 and remained deregistered: CB 354 at [10].

4. The Tribunal found that c1.856.221 of the Migration Regulations was not met: CB 354 at [12].

Judicial Review Application - grounds

1. The grounds of the Judicial Review Application are as follows:

   1. The most crucial point for this appeal is that I've completed the two-year fulltime work condition to get my permanent visa and worked the number of hours required (even much more than that). What is my fault in that my visa application opened after 4 years or so and the employer had sold his business by that time (Please note: I already completed the 2-years full-time work with them before they sold their business, also I've won my first MRT application on the basis of that.

   2. I really want to inform the honorable court/minister/AAT here that this is a very big flaw in the law of the immigration Australia and no one is rectifying it. It is very simple that a nominated person has completed his/her two or more (whichever applicable) years work experience under the nominated occupation with the sponsor business to satisfy the permanent visa application condition, and if there is delay in processing the application from immigration end then why the applicant is to be the one being penalize (sic) for it. If my file was opened on time (because it's not the fault from my end), I could be a citizen of Australia today.

   3. What is the guarantee that if I'll get another sponsor and he/she sells the business again??? It seems like a loop that will never end. I'm still working as a baker and patisserie cook at donut king, Morley for more than 2 years. But lodging a nomination and 457 sponsorship visa is expensive process, I working with 4 different owners at the same donut king in the past 7 years. I have an extensive experience as a patisserie cook/baker and already proved that in my first MRT application.

   (Transcribed from the Judicial Review Application without amendment)

Consideration

1. The applicant's grounds:

   a)primarily take issue with the process and delay in relation to the Residence Visa application; and

   b)demonstrate a misunderstanding of the relevant legislative provisions and fail to establish jurisdictional error in the Tribunal Decision.

2. Although, the fact that the applicant met the requirements of cl.856.2l3(b)(i)(B) of the Migration Regulations because she had been employed in the occupation to which the appointment related for at least three years before making the application, this did not assist her in meeting the time of decision criteria in cl.856.221 of the Migration Regulations, which provided that:

   The appointment mentioned in paragraph 856.213(a):

   (a) has been approved; and

   (b) has not been withdrawn; and

   ( c) continues to satisfy the criteria for approval; and

   (d) is still available to the applicant.

3. Clause 856.213(a) of the Migration Regulations required the applicant to have been nominated by an employer, in accordance with reg.5.19(2) of the Migration Regulations, for an appointment in the business of that employer at the time of the application.

4. The Tribunal had no discretion, in considering the applicant's satisfaction of cl.856.213 of the Migration Regulations, to take into account either the delay in processing the application or the applicant's previous employment with the Sponsor.

5. It follows that no jurisdictional error is identified by the applicant's grounds.

6. Having regard to the Minister's obligations as a model litigant, the Minister raised a possible argument that the Tribunal had denied the applicant procedural fairness by not using the process in s.359AA of the Migration Act to put to her that the information from the ABN lookup website and ASIC database in relation to the Sponsor would form the reason, or part of the reason, for affirming the Delegate’s Decision.

7. There is currently no evidence before the Court to suggest that the information was, or was not, formally put to the applicant, however, it appears that the information was put to the applicant (at least in an informal way): CB 354 at [10]. It could be argued that this exchange comes close to, but does not meet, the terms of s.359AA of the Migration Act. It is therefore arguable that a breach of procedural fairness may have occurred in this Tribunal hearing.

8. There is insufficient evidence for the Court to make a finding of a breach of procedural fairness by the Tribunal, but even if the Court were to so find, the Court would not exercise its discretion to remit the matter, because the remittal would be futile. Even if a process of giving the applicant notice of the potentially adverse information pursuant to s.359AA of the Migration Act were offered, it could not have any impact on the outcome, in circumstances where the Sponsor no longer operates the business.

9. Clause 856.221 of the Migration Regulations could not be met by the applicant given the nomination by the Sponsor is no longer available to the applicant. Furthermore, any subsequent nominations would not be relevant in circumstances where it could not be the same appointment relied upon to meet the time of application criteria in cl.856.213(a) of the Migration Regulations.

10. In Islam v Minister for Immigration and Border Protection [2015] FCCA 617 at [9] per Judge Cameron, the Court took a similar approach in respect of the construction of cl.856.221 of the Migration Regulations, where Judge Cameron noted that:

    As it stood at the relevant time, cl.856.221 specifically referred to the appointment mentioned in cl.856.213(a). Clause 856.213(a) spoke of an appointment in the business of the nominating employer as at the time of application. Consequently, when cl.856.221 spoke of an appointment being approved and an appointment still being available to the applicant, it was speaking of the appointment in the business of the nominating employer as at the time of application.

11. It follows that relief would be refused on the basis of its futility: Babar & Ors v Minister for Immigration and Anor [2016] FCCA 1521 at [64] per Judge Lucev, or a lack of utility: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J.

Conclusion and orders

1. No jurisdictional error arises in respect of the Tribunal Decision, and therefore the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 23 December 2016