Dhillon v Minister for Immigration

[2017] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1113

Catchwords:
MIGRATION – Employer Nomination Residence (Class BW) visa – no valid nomination when Tribunal determined visa application – applicant contending that if given time he could find a nomination – no error by Tribunal.

Legislation:

Migration Act 1958 (Cth), s.359

Migration Regulations 1994 (Cth), reg.5.19, Sch.2, cl.857.221, 857.321

Cases cited:

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

First Applicant: GURDEEP SINGH DHILLON

Applicant: AMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 473 of 2015

Judgment of: Judge Wilson

Hearing date: 3 May 2017

Date of Last Submission: 3 May 2017

Delivered at: Melbourne

Delivered on: 3 May 2017

REPRESENTATION

Applicants in person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 10 March 2015 is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 473 of 2015

GURDEEP SINGH DHILLON

First Applicant

AMANDEEP KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction. 

1. The applicants have asserted in this case that the decision made by the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) on 18 February 2015 was affected by jurisdictional error warranting intervention by this court. The applicants asserted in their initiating application filed 10 March 2015 as follows –

   I strongly believe that my employer and my employment with him were genuine, but our application were not decided according to the applicable law at that time. (This I shall call “the first ground of review”).

   I be provided with an opportunity to present mine case fully before the honourable court. (Errors in the original). (This I shall call “the second ground of review”).

Synopsis

1. For the reasons that follow in my judgment the Tribunal did not make any jurisdictional error in this case. The grounds of review are without merit. I dismiss this proceeding and order the applicants to pay the Minister’s costs. These are my reasons for so concluding.

Background

1. The applicants arrived in Australia on 7 February 2007. They applied for an Employer Nomination Residence (Class BW) visa on

   
   

   27 June 2012 on the basis that the first applicant had been appointed to work in the nominated position of cook with his proposed employer, the owner of the business known as Tandoori Mahal Authentic Indian Cuisine. 

2. Clause 857.221 of Sch.2 to the Migration Regulations 1994 (Cth)

   
   

   (“the regulations”) required a collection of criteria to be met in order to obtain the grant of the relevant visa. The Minister’s delegate determined that other s.457 visa workers worked at the relevant business and on balance, the delegate was not satisfied another

   
   

   full-time cook was required or could be financially sustained in that business for a period of two years. The delegate stated he was not satisfied the employer nomination was made by an employer in respect of a need for a paid employee in a business activity actively lawfully operating in Australia and/or operated by that employer. The delegate refused the visa application on 28 June 2013.

3. The applicants sought a merits review of the delegate’s decision by application dated 20 July 2013. The applicants retained a migration agent, who, according to the documentation presented in the

   
   

   court book, represented the applicants throughout.

4. On 6 August 2014 the Tribunal wrote to the applicants’ migration agent and separately to them telling them information on which they relied to show that their nomination application had been approved had to be provided to the Tribunal by 29 August 2014 and that if they failed to supply that information, the Tribunal could decide the case and their entitlement to a hearing would be lost. 

5. At the applicants’ request, through their migration agent the applicants sought an extension of time within which to provide the information sought and on 2 September 2014 the Tribunal extended the date for the provision of the information of 25 September 2014. The Tribunal informed the applicants again that if the information requested was not provided by 25 September 2014 the applicants’ entitlement to a hearing would be lost. The Tribunal also telephoned the applicants’ migration agent to convey that information. 

6. The applicants did not provide the information the Tribunal sought, whether by the specified date or at all. Before me the first applicant told me he did not receive any information about the date by which he had to supply information or that the applicants would lose the right to a hearing if they failed to supply the information within the stipulated time. I do not accept that. The documentation in the

   
   

   court book revealed that the applicants and their agent received the letters from the Tribunal, especially the letter notifying the applicants and their agent of the 25 September 2014 deadline. 

7. Not having received a response to the letter given under s.359 of the Migration Act 1958 (Cth) (“the Act”), on 3 October 2014 the Tribunal affirmed the delegate’s decision.

8. On 18 November 2014 the Tribunal received information from the applicants’ agent to the effect that a new nomination existed. On

   
   

   12 December 2014 the Tribunal informed the applicants’ agent that it vacated its decision made on 3 October 2014. 

9. On 6 January 2015 the Tribunal wrote to the applicants’ agent seeking an update on the status of the new nomination and the Tribunal informed the agent that the applicants were still in the position that they lost their right to a hearing before the Tribunal. 

10. On 11 February 2015 the Tribunal requested a further update to confirm whether the new nomination had been approved or refused. No information was supplied. The Tribunal then decided the case, as it happened, adversely to the applicants. They sought judicial review of the Tribunal’s decision.

Consideration

1. In essence, the applicants contended before me that they could, if given time, find evidence to show that a new nomination could be approved.

2. That missed the point. The issue before me was whether the Tribunal fell into jurisdictional error. In my view, the Tribunal did not. The Tribunal correctly considered the applicants’ case yet it concluded in paragraphs 20 to 25 of its decision that the criteria in reg.5.19 and cl.857.221 of the Regulations had not been met. The Tribunal also found, correctly in my view, that clause 857.321 had not been met by the second applicant. The Tribunal made no jurisdictional error in that conclusion.

3. As to the ground faintly advanced by the applicants, that they were not given procedural fairness, I disagree. Section 359 of the Act is strict in its application. They failed to comply with its terms. The Tribunal had no power to permit them to appear, as was held in Hasran v Minister for Immigration and Citizenship.[1]

   [1] [2010] FCAFC 40.

4. By the date on which the Tribunal handed down its reasons, the Tribunal had given the applicants an abundance of time within which to provide information that demonstrated they satisfied the criteria for the grant of a visa. Quite properly, the Tribunal made its decision on the evidence available to it. 

5. In written submissions the solicitor for the Minister said the following at paragraphs 22 and 23 –

   The Tribunal found that the nomination application was refused on 9 May 2013 and there was no evidence that it was, or had been, subject to review. Although there was evidence that the employer had lodged a new nomination application on

   
   

   6 June 2013 there was no information provided to the Tribunal that the nomination application had been approved. 

   The Tribunal found that there was no appointment approved under r 5.19 of the Regulations and therefore the primary applicant did not satisfy cl 857.221 of Schedule 2 to the Regulations. 

   The Tribunal further found that the secondary applicant did not meet cl 857.321 of Schedule 2 to the Regulations.[2]

   [2] First respondent’s written submissions filed 26 April 2017 at p.5.

6. I agree. The Minister put the position correctly it seemed to me.

7. There was no merit in the second ground of review. 

8. As to the first ground of review, the applicants’ strong belief was neither here nor there insofar as it was said to reveal jurisdictional error. No error was disclosed by that ground. For that matter, that ground gave no insight into any valid ground. I detected none. 

9. None of the grounds of review were made out. I dismiss this proceeding and order the applicants to pay the Minister’s costs in the sum of $5,800.00. 

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

Date: 25 May 2017