Ghale v Minister for Immigration and Border Protection

[2014] FCCA 1292

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHALE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1292

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13
Migration Regulations 1994 (Cth), reg.2.75

Applicant: TIKA RAM GHALE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 554 of 2014

Judgment of: Judge Emmett

Hearing date: 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Sydney

Delivered on: 19 June 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 554 of 2014

TIKA GHALE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Migration Review Tribunal dated 10 February 2014 (“the MRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 7 March 2014, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Nepalese interpreter.

2. On 27 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicant confirmed that he wished to continue with the application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 9 June 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 9 June 2014.

6. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.

7. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was also provided to the applicant.

8. On 6 June 2014, the applicant filed an amended application and an affidavit affirmed by him on 4 June 2014 annexing a copy of the hearing transcript dated 15 October 2013. The applicant was unrepresented before me this morning, although had the assistance of an interpreter. The applicant was invited to say whatever he wished in support his application.

9. The applicant told the Court that on 1 July 2013, the (then) Department of Immigration and Citizenship had changed the rules relating to whether takeaway cafés are capable of being restaurants, and that the MRT had ignored the fact that he had a copy of an IELTS English report dated 14 June 2008.

10. The grounds of the applicant's amended application are as follows:

    “1. The MRT had an approved sponsor, approved nomination and a qualified cook prior to the notification of refusal which was based on competent English

    2. The MRT requested a fresh nomination and ignored adverse information appearing in Court Book p.125-127. The MRT was aware that the occupation of cook has been removed from the instrument in writing within fast food or take away food service establishment. Yet the MRT ignored my sponsor’s evidence that I cook all the food as required and that my work is essential for successful running of the business.

    3. The MRT was aware that the position of the business is excluded from fast food or take away type services since 1 July 2013 and yet failed to waive such requirement which affected the sponsor and the visa requirement.

    4. The decision of the MRT and the fact that a current and approved nomination in respect of the applicant was unobtainable. The MRT erred in its request as well as in its concern for a fresh nomination.”

11. The grounds of the application do no more than cavil with the findings and conclusions of the MRT. The background of this matter and the MRT’s decision record are accurately summarised in the written submissions of the solicitor for the first respondent as follows:

    “Background

    2. The applicant is a male citizen of Nepal born on 17 September 1984. 

    3. The applicant applied for a subclass 457 Business (Long Stay) visa on 15 November 2011. 

    4. The applicant sought to satisfy the requirements of subclause 457.223(4) of schedule 2 of the Migration Regulations 1994 (Cth), which relates to standard business sponsorship. Subclause 457.223(4) requires, inter alia, as follows:

    ‘(4) The applicant meets the requirements of this subclause if:

    (a) each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii) the approval of the nomination has not ceased as provided for in regulation 2.75’

    5. In short, this requires first that there be an approved standard business sponsor, and second that a nomination with respect to the visa applicant made by that sponsor be approved.   It also requires that the nomination has not ceased as provided for in regulation 2.75.  Regulation 2.75(2)(b) provides that the approval of a nomination ceases 12 months after the day on which the nomination is approved.

    6. The delegate refused the application on the basis that the applicant had not provided evidence of his English language ability.  The MRT affirmed the decision on the basis that the applicant did not meet the requirements of clause 457.223(4)(a) as there was no current approved nomination with respect to the applicant.

    7. The applicant's proposed sponsor was Kebab Deluxe Pty Ltd.    The applicant did not provide any evidence that a current nomination made by Kebab Deluxe Pty Ltd had been approved. 

    8. In a letter dated 8 August 2013 the MRT invited the applicant to provide information regarding both his English ability and whether he was the subject of a current approved nomination.    On 1 September 2013 the MRT received a response from the applicant's authorised recipient.    In relation to the nomination, the letter stated that the applicant's employer's sponsorship approval remained valid.  The letter stated that a previous nomination had been approved in 2012 and that a fresh nomination application would be lodged by the employer in the next few weeks. 

    9. On 23 September 2013 the MRT received a further letter from the applicant's authorised recipient which attached  evidence of a nomination application which had been lodged by Kebab Deluxe Pty Ltd on 20 September 2013. 

    10. The applicant attended a hearing before the MRT on 15 October 2013.   At the hearing, the applicant told the MRT that no decision had been made with respect to the nomination application lodged on 20 September 2013.  The MRT gave the applicant until 12 November 2013 to provide the outcome of that nomination.

    11. The applicant faxed a letter to the MRT on 13 November 2013.   That letter indicated that a nomination application had previously been approved, and attached a letter from the Department of Immigration and Citizenship to Kebab Deluxe Pty Ltd regarding the nomination application lodged on 20 September 2013.   The applicant made submissions regarding his employment and asked the MRT to take this into account.

    12. The applicant did not further contact the MRT and the MRT made its decision on 10 February 2014, affirming the decision under review.

    The decision of the Tribunal

    13. The MRT found that no evidence had been provided by the applicant to demonstrate that there was a current approved nomination in relation to him.

    14. The MRT acknowledged the applicant's submissions made in the letter of 13 November 2013 but found that the determination of the nomination application was a matter for the Department and that the MRT was concerned only with whether there was a current approved nomination in respect of the applicant.

    15. As there was no evidence that the applicant was the subject of an approved nomination which had not ceased, the MRT was not satisfied that the applicant satisfied clause 457.223(4)(a).   The MRT accordingly refused the application.”

12. Clause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires that the applicant have an approved nomination which has not ceased from a standard business sponsor.

13. The applicant attended a hearing before the MRT on 15 October 2013. The MRT heard from the applicant and the sponsor, a director of his sponsor company Kebab Deluxe. The MRT noted that it asked the applicant about the status of the nomination application and noted the applicant's response that it had been lodged but no decision had yet been made by the Department of Immigration and Border Protection.

14. The MRT gave the applicant until 12 November 2013 to provide the outcome of his nomination. The MRT had regard to the evidence of a witness called by the applicant to the effect that the applicant cooks all the food and is a reliable and honest person, and that the business could not operate without him.

15. The MRT noted that at the time of decision, being 10 February 2014, no further information had been received by the MRT in relation to a current nomination in respect of the applicant. The MRT noted the terms of cl.457.223(4)(a) of Schedule 2 to the Regulations.

16. The MRT noted that in August 2013 the applicant was invited to provide evidence to demonstrate that there is a current approved nomination in relation to him, but no such evidence had been provided at the time of decision.

17. The only issue before the MRT was whether there is a current approved nomination in respect of the applicant. The applicant told the MRT that he had been the subject of an approved nomination in 2012. However, pursuant to reg.2.75(2)(b) of the Regulations, that nomination had ceased by the time of the MRT’s decision.

18. The MRT noted that the applicant had lodged a new nomination application on 20 September 2013. The MRT noted that since November 2013, the MRT had not received any further information in relation to the outcome of the nomination. The MRT found that the applicant had had ample time to provide that evidence.

19. In the circumstances, the MRT found that there was no evidence of an approved nomination in respect of the applicant which has not ceased.

20. Accordingly, the MRT was not satisfied that the applicant met the criterion in cl.457.223(4)(a) of Schedule 2 to the Regulations, that being a mandatory criterion of his visa. The MRT affirmed the decision under review.

21. There is nothing on the face of the MRT’s decision record or anything said by the applicant this morning to suggest that the MRT’s findings were not open to it on the evidence of the material before it and for the reasons it gave.

22. In his affidavit, affirmed 4 June 2014 and filed on 6 June 2014, the applicant annexed a transcript of the MRT hearing. However, there was no particular aspect of that transcript referred to by the applicant. The applicant's affidavit also referred to matters relating to whether the applicant had competent English. In circumstances where the applicant was unable to satisfy the mandatory criterion in cl.457.223(4) of Schedule 2 to the Regulations, it was irrelevant whether or not the applicant had competent English.

23. In the circumstances, there is nothing in the grounds of the application filed on 7 March 2014 or the amended application filed on 6 June 2014 or in anything said by the applicant this morning that raises an arguable case for the relief claimed. Whilst I make no final finding as to whether or not the MRT’s decision is affected by jurisdictional error, none is apparent on the face of the MRT’s decision record and none has been identified by the applicant this morning.

24. Accordingly, the proceeding before this Court commenced by way of application filed on 7 March 2014 should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  26 June 2014