Gill v Minister for Immigration

[2020] FCCA 2658

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2658

Catchwords:
MIGRATION – Judicial review– jurisdictional issue – skilled regional visa application – public interest criteria – reviewable decisions – error of law – jurisdiction to hear matter – no matters of principle – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth), s.18

Crown Proceedings Act 1992 (SA)

Migration Act 1958 (Cth), ss.65, 337, 338, 347, 476, Pt.V.

Migration Regulations 1994 (Cth), reg.4.02, cls.489.211(1), 1230(4)

First Applicant: HARJOT KAUR GILL

Second Applicant: AMIT SALUJA

Third Applicant: ASHNOOR SALUJA

Fourth Applicant: EKAMJOT KAUR SALUJA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2155 of 2015

Judgment of: Judge Riethmuller

Hearing date: 17 April 2020

Date of Last Submission: 23 June 2020

Delivered at: Townsville

Delivered on: 23 September 2020

REPRESENTATION

The Applicants appeared in person.

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2155 of 2015

HARJOT KAUR GILL

First Applicant

AMIT SALUJA

Second Applicant

ASHNOOR SALUJA

Third Applicant

EKAMJOT KAUR SALUJA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. In this matter the applicants seek judicial review of a decision of a delegate of the Minister made on 3 September 2015, refusing to grant the applicants a Skilled Regional Sponsored (Provisional) (Class SP) (subclass 489) visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first applicant is the primary applicant for the visa. The second, third and fourth applicants are members of her family unit. The applicant sought a subclass 489 visa in the ‘state and territory nominated’ stream.

3. The applicant was refused a visa by the delegate of the Minister on the basis of Public Interest Criteria (PIC) 4020, which is one of the criteria set out in regulation 489.211(1) of the Migration Regulations 1994 (‘the Regulations’).

4. The applicants abandoned their claim for review of the decision of the Administrative Appeals Tribunal (‘the Tribunal) dated 23 October 2015, which concluded that it did not have jurisdiction with respect to a review application by the applicants under section 347 of the Act.

Public Interest Criteria

1. One of the criteria for the grant of a subclass 489 visa set out in clause 489.211(1) of Schedule 2 to the Regulations requires the applicant satisfy the Public Interest Criteria (PIC) 4020. PIC4020(2) requires that the applicant has not been refused a visa in the period starting three years before the application is made and ending when the Minister makes a decision.

2. PIC 4020(4) also empowers the Minister to waive the requirements of PIC4020(2), factors which were considered by the delegate in this case. There is no challenge made to this part of the decision.

3. On 20 July 2015, the Department identified that the applicant was unable to satisfy the PIC4020(2) and the Department wrote to the applicant inviting her comment upon the information, namely that a delegate had previously refused a subclass 489 visa application on 4 September 2014, on the basis of PIC4020(1): see CB p.69. 

4. The delegate ultimately refused the visa, relying on PIC4020(2), on 3 September 2015. This refusal was notified to the applicant by a letter dated the same day: see CB p.99. The applicant sought review in the Tribunal on 14 September 2015. The Tribunal identified that it was not open to the applicants to seek review in the Tribunal, as they were offshore at the time of the application and noted that the only person who could bring a review application was the nominator. The Tribunal’s decision is not challenged in these proceedings. 

5. It appears from the court book (at CB pp.1 and 60) that the nominator was ‘South Australia’. There is no evidence before the court as to the precise terms of the nomination, nor whether the nominator was the Crown with respect to South Australia, a government agency, a corporation sole, or some other entity. Nor is it apparent from the materials precisely what job it was for which the applicant was nominated.  On the material before the Court I proceed on the basis that it is the Crown with respect of the State of South Australia that is the nominator, as no corporation sole, statutory office holder or agency has been identified as the nominator.

Application for Review

1. In her amended application, (which was not filed and instead provided to the court by way of email on 14 April 2020), the applicant sets out her ground for judicial review in the following terms:

   1. The first respondent's finding that the applicants had failed to satisfy Public Interest Criterion ("PIC") 4020(1) of Schedule 4 to the Migration Regulations 1994 in respect of the present visa application was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   Particulars

   (a) The delegate found on page 7 of the reasons that the application has been refused following an assessment that the criteria in PIC 40200) were not met.

   (b) The delegate found on page 7 that [an] "Exclusion period may now apply".

   (c) The delegate stated that this finding will affect any subsequent application made for a visa that contains the requirement that the applicant satisfies PIC 4020.

   (d) No finding that the applicants did not meet PIC 4020(1) in respect of the current visa application is open on the facts or even supported by logic, and no finding that an exclusion period could be imposed from the date of the decision can be supported by the act or the Regulations.

2. There are two issues that must be determined in this matter: firstly, whether or not the court has jurisdiction and secondly, whether or not the delegate erred in concluding that the applicants had failed to meet PIC4020(1).

Issues before the Court

Jurisdiction

1. In support of the claim that the court has jurisdiction, the applicants refer to section 476 of the Act which provides this court with the same original jurisdiction as the High Court of Australia, in relation to migration decisions. Section 476 of the Act provides as follows:

   476 Jurisdiction of the Federal Circuit Court

   (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

   (2)  The Federal Circuit Court has no jurisdiction in relation to the following decisions:

   (a)  a primary decision;

   ….

   (4)  In this section:

   “primary decision” means a privative clause decision or purported privative clause decision:

   (a)  that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

   (b)  that would have been so reviewable if an application for such review had been made within a specified period; or

(c)  that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

1. The general grant of jurisdiction set out in section 476(1) is considerably restricted by the operation of section 476(2) which sets out that the court does not have jurisdiction to review ‘primary decisions’, which are ‘reviewable’ under Part V, part VII or s. 500 of the Act. This forms part of a legislative scheme whereby decisions that are reviewable by a Tribunal, should be reviewed in that forum, rather than be the subject of judicial review applications in the court.

2. Section 338 (contained in Part V of the Act) sets out that decisions ‘prescribed for the purpose of this section’ are ‘reviewable decisions’ under Part V: see section 338(9). The relevant Regulation is reg.4.02(4)(la) which provided (at that relevant time) that:

   4.02  Part 5‑reviewable decisions and who may apply for review

   […]

   (4) For subsection 338(9) of the Act, each of the following decisions is a Part 5‑reviewable decision:

   […]

   (la)  a decision to refuse to grant a Subclass 489 (Skilled--Regional (Provisional)) visa or a Subclass 491 (Skilled Work Regional (Provisional)) visa to a non-citizen if:

   (i)  the non-citizen is outside Australia at the time of application; and

   (ii)  the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

   (A)  an Australian citizen; or

   (B)  a company that operates in the migration zone; or

   (C)  a partnership that operates in the migration zone; or

   (D) the holder of a permanent visa; or

   (E)  a New Zealand citizen who holds a special category visa;

3. This legislation has since been amended, placing the list into a new sub-regulation, reg.4.02(4AA), which now includes ‘a State or Territory government agency’: see reg.4.02(4AA)(g).

4. In the list of categories of nominators or sponsors (at the relevant time), there is a notable absence of any reference to a State. It is apparent that South Australia could not be an Australian citizen, a partnership, or the holder of a permanent visa or a New Zealand Citizen.  The question then arises as to whether or not the State of South Australia is ‘a company that operates in the migration zone’.

5. The restriction is curious given that this particular category of visa has a requirement that the nominator be a State or Territory government agency: see Item 5, sub-cl.1230(4) of Schedule 1 to the Regulations. However, there are many curious provisions in the Act and Regulations, which have become so long, technical and complex that they are impossibly opaque to any average reader.

6. Counsel for the Minister submitted that the phrase ‘a company that operates in the migration zone’ should be read broadly so as to include what Counsel described as a ‘polity’, a term broad enough to include South Australia. Counsel referred to section 337 of the Act which provides a definition for the term ‘company’ as follows:

   “company” includes any body or association (whether or not it is incorporated), but does not include a partnership.

7. The ordinary meaning of the word ‘company’ would not include the State of South Australia or any of the other Australian States, but could easily include corporations with the sole set up as separate entities for the purpose of carrying on the business of providing services or regulation within the State. 

8. To categorise the State of South Australia as a ‘company’ would be to ignore its constitutional structure.  It remains her Majesty’s government for the people of South Australia, formally administered by the Governor of South Australia, as appointed from time to time by her Majesty.  Whilst democracy is soundly entrenched in Australia, South Australia formally remains a dominion of Queen Elizabeth II and has not become a republic. Indeed the right to sue South Australia is based upon the Crown Proceedings Act 1992 (SA). If South Australia were a republic, then perhaps Counsel’s argument could lead to a finding that South Australia may be within the extended definition of ‘company’ in the Act, as a republic (although being a State) is a ‘body’ of people and not the Crown. I am not persuaded that the term ‘company’ includes a State or Territory, even in the context in which it is used in the Regulations.

9. I note the argument that the review provisions would be particularly narrow and effectively exclude review by the Crown in respect of any of the states in sponsored visa applications. This pragmatic argument is appealing, but has no real support in the words of the Regulations. When considering the extremely technical and meticulous style of the Regulations it appears clear that Parliament did not intend that the provisions provide general legal principles to be moulded by the courts to the unusual facts of various cases. Rather, the provisions evidence an approach by Parliament intended to be a formal detailed regulatory scheme with limited scope for interpretation. The drafting is clearly designed to limit the development of common law jurisprudence that would otherwise grow to adapt a more general provision to the unusual (and often unforeseeable) facts of individual cases that come before the courts (one can see the stark contrast in Australian Consumer Law provisions such as s.18 of the of the Competition and Consumer Act 2010 (Cth) which simply prohibits ‘misleading and deceptive conduct’, leaving it to the courts to mould its application to the wide variety of circumstances that arise in trade and commerce). In these circumstances the very precise words of Parliament should be applied as drafted. I also note that it may well have been a public policy decision that it was not appropriate for the Crown in respect of the State of South Australia to bring a review application within the administrative structure of the Crown in relation to the Commonwealth.

10. Ultimately, the ordinary meaning of the term ‘company’ would not include a State and the context in this case does not persuade me that a significantly broader definition should be provided here. 

11. As the State of South Australia did not have the capacity to seek review of the decision in the Tribunal, the exception to the court’s general jurisdiction under s.476 does not arise. I am therefore persuaded that this court does have jurisdiction to hear and determine the judicial review application with respect to the delegate’s decision.

Decision of the delegate

1. In this case, the reasons of the delegate make clear that the delegate refused the visa application relying upon PIC4020(2), as a result of  an earlier decision made on 4 September 2014, refusing the applicant a visa under PIC4020(1).

2. After setting out these key facts, the delegate expressly stated that they were satisfied that the applicant’s circumstances were within the ambit of PIC4020(2) and therefore the applicant was unable to obtain the visa. Under the heading ‘Decision’ the opening line expresses that cl.489.211 ‘is not met due to failure to satisfy PIC4020(2)’: see CB p.112.

3. It does not appear to be disputed by the applicant that PIC4020(2) was not fulfilled, as a consequence of the previous visa refusal, relying on PIC4020(1). Rather, the argument is that the delegate may have undertaken the decision in this case in reliance upon PIC4020(1), rather than PIC4020(2). This argument arises from a section of the decision, which appears to have been a pro forma paragraph that was inserted, recounting the effects of a visa decision under PIC4020(1).

4. There are two significant reasons why this argument cannot be sustained:

   (1)First, the delegate has undoubtedly reached the correct conclusion, on the actual reasons given, according to law.  Even if the delegate were confused as to which provision operated, there is no doubt that the legal outcome, based upon the actual facts as found by the delegate, was correct and the outcome inevitable.

   (2)Secondly, it must be remembered that decisions in areas where there is a large volume of work will often be less than perfect in their structure and content. In this case, it is abundantly clear that the delegate properly addressed the correct matters of law and that the material concerning the operation of PIC4020(1) did not apply to the facts of the particular application, but explained the relevance of the outcome in the previous application to this application.  One is not to read the decisions of delegates with an eye keenly focused upon finding any error, but rather with a focus on considering the substantive reasons and fact-finding of decision-maker.  In this case, such an approach can lead only to the conclusion that the delegate was correct in the approach applied.

Application for Declaration

1. The final submissions raised by the applicant in the written materials  seek a declaration that the present decision was a refusal under PIC4020(2), so as to ensure that in any future decision-making by the Minister, a decision-maker does not assume that the three year preclusion period created by PIC4020 commenced again following the decision.

2. I am not persuaded that on a fair reading of the decision, a future decision-maker would conclude that the decision was made under PIC4020(1). For this reason, it is not appropriate to make a declaration.  In addition, the Minister has expressly stated in argument that the decision by this delegate was pursuant to PIC4020(2) and not PIC4020(1). 

3. In any event, the exclusion period only runs for a period of three years and the decision was made in 2015. Even if a future decision-maker erroneously thought that the decision was under PIC4020(1), the exclusion period would have expired by nearly two years and there is no argument that was put to the effect that it could have a further impact upon the applicant’s rights in this case. 

Conclusion

1. For the reasons set out above, I am persuaded that I have jurisdiction to deal with this matter. 

2. I am not persuaded that the delegate made any error of law in reaching the conclusion that was made in this case, nor am I persuaded that there is any reasonable prospect of a future decision-maker considering that the decision of this delegate was made on terms other than the operation of  PIC4020(2). 

3. In the circumstances, I therefore dismiss the application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 23 September 2020