Dogra v Minister for Immigration
[2016] FCCA 1936
•28 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOGRA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1936 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visas – whether nomination for position to which the visa application related had been approved – whether applicant met criteria for visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359(2), 359A, 359C, 359C(1), 360(1), (2) and (3), 363A, 379A, 379C, 379G, 474, 476 Migration Regulations 1994 (Cth), reg.4.17(4), sch.2, cl.187.233 |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCCA 58 |
| Applicant: | MOHIT DOGRA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 474 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 July 2016 |
| Date of Last Submission: | 27 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 28 July 2016 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made on 27 July 2016)
That the application be dismissed.
Reasons for Judgment be published electronically from Chambers at a later date.
That the applicant pay the first respondent’s costs of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 474 of 2015
| MOHIT DOGRA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) to review a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 25 September 2015. The Tribunal Decision affirmed a decision made on 3 February 2015 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse each applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer Visa”). The Tribunal Decision is at Court Book (“CB”) 91-93.
Non-appearance and orders made at hearing
When the matter was called on 27 July 2016 the applicant did not appear. The matter was then called outside, and there was still no appearance by the applicant. The Court is satisfied that a stamped copy of the order of a Registrar of this Court dated 25 November 2015 including an order that the matter be listed for hearing before this Court at 10.15am on 27 July 2016 was forwarded to the applicant at his email address for service by an officer of the Perth Registry of the Court at 11.33am on 1 December 2015. In the circumstances, and having already read the relevant papers, the Court indicated to the Minister’s Counsel that it proposed to make the orders which appear hereunder, and did so because it did not consider that it was appropriate to dismiss the matter for non-appearance, given that the Judicial Review Application was manifestly hopeless, and the Court did not therefore wish to allow for the possibility of an application to set aside an order of dismissal for non-appearance, and because an order for dismissal, accompanied by written Reasons for Judgment, might also persuade the applicant not to appeal to the Federal Court of Australia, if the applicant were to contemplate such an appeal, which appeal would be manifestly hopeless. The Court therefore made the following orders:
1. That the application be dismissed.
2. Reasons for Judgment be published electronically from Chambers at a later date.
2. That the applicant pay the first respondent’s costs of $5,800.
The reasons which follow are the Court’s Reasons for Judgment referred to in order 2 above.
Factual and procedural background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of India who made an application for the Regional Employer Visa on 3 June 2014. The application listed the related nomination as TRN "EG05TDXAM3M" and the nominated occupation as "Cafe or Restaurant Manager"; and
b)on 20 December 2014 (replacing a previous invitation to comment letter dated 19 November 2014), the applicant was invited by the Department of Immigration and Border Protection (“Department”) to comment on information that the nomination by Indian Food Safari Pty Ltd (“the Sponsor”) in relation to the applicant had been refused. No response to this correspondence was received by the Department.
The Delegate’s Decision on 3 February 2015 was to refuse to grant the Regional Employer Visa: CB 61-63. The Delegate noted that the applicant had not responded to the invitation to comment and that since the appointment to which the application related had not been approved, the applicant did not satisfy cl.187.233 of the Migration Regulations 1994 (Cth) (“Migration Regulations”).
On 9 February 2015, the applicant lodged an application with the Migration Review Tribunal (as it then was, now the Tribunal) for review of the Delegate’s Decision: CB 65-66.
On 10 September 2015, pursuant to s.359A of the Migration Act, the Tribunal invited the applicant to comment or respond to information, namely that the sponsor's application for review of the Delegate’s Decision to refuse the nomination had been affirmed by the Tribunal: CB 80-83. No response was received in relation to this invitation to comment by the Tribunal.
In the Tribunal Decision the Tribunal:
a)noted that the issue was whether the nomination had been approved: CB 92 at [8], and affirmed the Delegate’s Decision to refuse the nomination application on 9 September 2015: CB 93 at [11];
b)found that as the applicant failed to respond to its 10 September 2015 invitation to comment, s.359C of the Migration Act applied, and pursuant to s.360(3) of the Migration Act the applicant was not entitled to appear before the Tribunal at a hearing: CB 93 at [12]; and
c)found that the applicant could not satisfy an essential criterion for the grant of the visa (being cl.187.233 of the Migration Regulations) in circumstances where the nomination had not been approved: CB 93 at [13].
Judicial Review Application
The Judicial Review Application alleged the following ground:
DIBP and AAT made judicial error in deciding my application
An affidavit filed with the Judicial Review Application ventured an opinion to the same effect as the ground of review. Pursuant to orders made by a Registrar of the Court on 25 November 2015 the applicant was entitled to, but did not file any amended Judicial Review Application, affidavits in support or written submissions prior to the hearing in this Court.
Consideration
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Minister’s submissions
To the extent that the Judicial Review Application seeks review of the Delegate’s Decision:
a)the Court does not have jurisdiction to review the Delegate’s Decision pursuant to s.476(2) of the Migration Act as it is a primary decision as defined by s.476(4) of the Migration Act; and
b)if the Tribunal Decision is not flawed, it will cure defects and irregularities in the Delegate’s Decision such as are contended for in this case: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2010] FCA 775; [2005] FCAFC 58; (2005) 143 FCR 314.
The Judicial Review Application does not identify any ground of review except to contend that the Tribunal made a judicial error, which, in context, must be considered to be an allegation of jurisdictional error. This is a broad assertion that is meaningless without further particulars: SZNXA v Minister for Immigration & Citizenship [2010] FCA 775. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”) the Federal Court observed as follows:
Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection[2014] FCA 969.
In this case, the applicant has failed to particularise the ground of review, and, in the circumstances, that is sufficient to warrant the dismissal of the Judicial Review Application: see WZAVW at [35] per Gilmour J, and the cases there cited, and see also AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.
Pursuant to s.359C(2) of the Migration Act, if a person is invited in writing under s.359 of the Migration Act or 359A of the Migration Act to give information or comment or respond to information and does not respond within the required timeframe, the Tribunal may make its decision without taking further action. When s.359C(2) of the Migration Act applies, s.360(2)(c) of the Migration Act relieves the Tribunal of the obligation to invite the applicant to appear before it under s.360(1) of the Migration Act, and s.360(3) of the Migration Act has the effect that the applicant loses any entitlement to appear before the Tribunal. Further, once the applicant loses this entitlement, pursuant to s.363A, the Tribunal does not have power to permit the person to do that thing;
The Tribunal complied with the relevant statutory requirements of the invitation to comment and the applicant therefore had no entitlement to appear at the Tribunal hearing because:
a)the invitation was sent to the applicant's authorised representative at the email address nominated by him in the application for review: s.379A(5)(d) of the Migration Act;
b)the applicant was taken to have received the document given to his authorised representative: s.379G(2) of the Migration Act;
c)the applicant was deemed to have received the invitation at the end of the day upon which it was transmitted (which was 10 September 2015): s.379C(5) of the Migration Act. Whether or not the applicant actually received the invitation is not relevant: MZZDJ v Minister for Immigration & Border Protection [2013] FCAFC 156; (2003) 216 FCR 153; (2013) 137 ALD 466 at [17] per Jagot, Bromberg and Mortimer JJ; Minister for Immigration and Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437;
d)the invitation provided the applicant with the prescribed period in which to provide the information in accordance with s.359B(2) of the Migration Act, namely 14 days from the date the applicant received the invitation: Migration Regulations, reg.4.17(4), that is until 24 September 2015; and
e)the Tribunal received no response to its correspondence.
The Court notes that, by reason of the applicant’s failure to provide the information sought by the Tribunal on 10 September 2014 the applicants were not entitled to be heard by the Tribunal: Migration Act, ss.359(2), 359C(1) and 360(2)(c) and (3). But, even if the applicant had been heard it would have made no difference to the Tribunal Decision, because, as both the Tribunal Decision and these Reasons for Judgment demonstrate, the essential criterion for the grant of the Regional Employer Visa was never met.
Clause 187.223(3) of Schedule 2 to the Migration Regulations requires approval of the nomination for the position to be filled by an applicant for a Regional Employer Visa. The only issue was, as the Tribunal correctly identified, whether there was approval for the nomination for the position to be filled by the applicant: CB 92 at [9] and [93] at [11] and [13].
Approval of nomination
There was no evidence before the Tribunal of approval for the nomination for the position which the applicant sought to fill, and it was seemingly not in dispute that no approval was given.
The Tribunal correctly identified the applicable law, and the relevant issue, and applied an ultimately undisputed fact to determine that the applicant did not meet the relevant criteria stated in cl.187.223(3) of Schedule 2 to the Migration Regulations. In those circumstances, the Judicial Review Application is a plea for impermissible merits review based on the applicants’ dissatisfaction with the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and no jurisdictional error arises with respect to the grounds of the application: Wadhwa & Ors v Minister for Immigration & Anor [2015] FCCA 1409 at [11] per Judge Lucev.
Conclusion
It follows that the Judicial Review Application must be dismissed, with costs to be paid by the applicant.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 28 July 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction