Dulman v Minister for Immigration - [2014] FCCA 2146

FEDERAL CIRCUIT COURT OF AUSTRALIA

DULMAN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2146

Catchwords:
MIGRATION – Application to review Migration Review Tribunal decision – grounds include applicant did not receive notice of refusal - review of visa application should also act as review of another separate application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 362, 474, 494C

Migration Regulations 1994, rr.5.19(3), 5.19(7), subclass 187, 187.223, 457, 857.221

Minister for Immigration and Multicultrual Affairs v Yusuf (2001) 206 CLR 323;
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362;
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611;
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12;
Craig v South Australia [1995] HCA 58;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272;
SSJDS v Minister for Immigration and Citizenship and Another [2012] FCAFC 27.

Applicant:

FRITZ ALIPALA DULMAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 167 of 2014

Judgment of:

Judge Willis

Hearing date:

7 August 2014

Date of Last Submission:

7 August 2014

Delivered at:

Cairns

Delivered on:

10 October 2014

REPRESENTATION

Solicitors for the Applicant:

Self-Represented

Counsel for the First & Second Respondents:

Ms Stoker

Solicitors for the First & Second Respondents:

Clayton Utz

ORDERS

That the amended application for Judicial Review filed 8 April 2014 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of six thousand, six hundred and forty six dollars ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRG 167 of 2014

FRITZ ALIPALA DULMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 24 January 2014 affirming a delegate’s earlier decision to refuse to grant Fritz Alipala Dulman (“the applicant”) a Regional Employer Nomination (Permanent) (Class RN) Visa.
At the time of the application 29 July 2012, Class RN contained one subclass being subclass 187 (Regional Sponsored Migration Scheme) (“187 Visa”). He was granted a temporary bridging Visa A (Class W.A., subclass 010) whilst the department considered the application.
The applicant applied to satisfy the primary criteria for a grant of a subclass 187 Visa in the temporary residence transition stream.[1] This stream is designed for subclass 457 Visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation. The applicant is the nephew of his employer (or more particularly, the nephew-in-law).
[1] Bundle of relevant documents filed on 28 April 2014 (“BRD”), page 135.
As part of the requirements for the grant of this Visa, the applicant needed to satisfy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 2146
Decision Date: 10 October 2014

CaseChat Overview and Summary

This matter concerned an application for a Subclass 187 visa by Fritz Alipala Dulman, which was refused by a delegate of the Minister for Immigration and Citizenship. The applicant sought review of this decision before the Migration Review Tribunal. The core of the dispute revolved around whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination and approval of the position by an employer.

The legal issues before the Tribunal were whether the applicant had satisfied the criteria for the grant of a Regional Employer Nomination visa, particularly in relation to clause 187.233, which requires the nominated position to have been approved. The Tribunal also considered whether the applicant met the requirements of regulation 187.242 under the Agreement stream, which necessitates a nominated position in accordance with a labour agreement.

The Tribunal found that the nomination lodged by C ASHTON & G.J ASHTON, which was relevant to paragraph 187.233(1), had been refused by a delegate of the Minister. Consequently, the Tribunal concluded that criterion 187.233(3) was not met, and therefore, the applicant did not satisfy the requirements of clause 187.233. Furthermore, as no correlating position was nominated by an employer under a labour agreement, the Tribunal was not satisfied that the applicant met the requirements of regulation 187.242. The applicant's application for the Subclass 187 visa was therefore refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The reasons indicated were Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. The legal requirement in clause 187.233 in Schedule 2 to the Regulations has not been met by the applicant on the date I made my decision. After setting out the provisions of clause 187.233, the letter continued: On 11/02/2013 the nomination lodged by C ASHTON & G.J ASHTON, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Citizenship. As the appointment has been refused, criterion 187.233 (3) is not met. As a result, I am not satisfied that the requirements of criterion 187.233 have been met. During my assessment of your application, I provided you with a reasonable opportunity to advise the department on how you would like to proceed with this application on 01/03/2013. On 05/03/2013, I received a reply from you that you will not be withdrawing your visa application. I have assessed your claims under the Direct Entry stream. Under regulation 187.233 the position to which a visa application relates must have been nominated and approved under sub regulation 5.19(3), I am not satisfied that you meet regulation 187.233. I have also assessed your claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, I am not satisfied that you meet the requirements of regulation 187.242. Therefore, I refuse your application for a Subclass 187 visa. DecisionAs clause 187.233 is not met by the applicant, I find the criteria for the grant of a Regional Employer Nomination visa are not met by the applicant. Therefore, I refuse the application by the applicant for a Regional Employer Nomination visa.[10][10] BRD, pages 139 – 140. On 18 July 2013 the applicant faxed an Application for Review to Migrant Review Tribunal to the MRT.[11] The accompanying letter from the applicant states at the top of the letter in handwriting faxed 45 pages and submission of representative of Applicant: Fritz Alipala Dulman. [11] BRD, pages 74-82. The accompanying letter quotes file number BCC2012/904967. The opening paragraph states, 1. Fritz Alipala Dulman has [sic] exhausted almost 7 years of his life training in the Philippines and serving Australia in the fishing industry. The letter continues the Minister has infringed s. 92 of the Constitution by refusing the Business Sponsorship, Authority: Cole v Whitfield (1988) 165 CLR 360 (‘Cole’) and later in the letter, the Minister refused the business C and GJ Ashton ABN 33 698 323 918 as a Sponsor-Nominator. The application for review to the Tribunal attached to the letter is completed as showing the applicant Fritz Alipala Dulman.[12] [12] BRD, page 76. On 25 July 2013, the Migration Review Tribunal acknowledged the application, with letters addressed to Mr Ashton as the authorised recipient of the applicant, with documents enclosed for the applicant.[13][13] BRD, pages 62-72.

Ratio Decidendi

Legal Principle Established

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