Gill v Minister for Immigration
[2020] FCCA 1759
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1759 |
| Catchwords: MIGRATION – Regional Employer Nomination (subclass 187) visa – decision of the Administrative Appeals Tribunal – where no approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 360, 476 Migration Regulations 1994 (Cth), cls.187.223, 187.233 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 |
| First Applicant: | KAMALPREET SINGH GILL |
| Second Applicant: | SIMARDEEP KAUR |
| Third Applicant: | JASMINE KAUR |
| Fourth Applicant: | MANTAJ SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 289 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 June 2020 |
| Date of Last Submission: | 29 June 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 289 of 2019
| KAMALPREET SINGH GILL |
First Applicant
| SIMARDEEP KAUR |
Second Applicant
| JASMINE KAUR |
Third Applicant
| MANTAJ SINGH GILL |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant and the second applicant are husband and wife respectively. The third applicant is their daughter. The fourth applicant is their son.
The first applicant arrived in Australia on 20 August 2006 (Court Book (“CB”) 159). He has held a variety of visas since that time. On 30 May 2014, the second applicant and the third applicant arrived in Australia (CB 160-161).
On 29 February 2016, the first applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 1-14). The second and third applicants were members of the first applicant’s family unit. At that time, the fourth applicant was not born (he was born shortly thereafter (CB 29)). The first applicant indicated that he had been nominated for the position of “cook” (CB 8).
On 8 November 2016, the first respondent’s Department (the “Minister”) wrote to the applicants asking them to comment on information (CB 117-120) that the first applicant’s sponsor, Satinwood Nominees Pty Ltd ACN 111 589 229 ATF The Salatam Family Trust (the “sponsor”), had had their nomination refused and that, as such, the first applicant could not be granted the visa (CB 117-120).
On 12 December 2016, a Ministerial delegate refused to grant the applicants the visa (CB 139-141). The delegate found that the first applicant did not meet cl.187.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the first applicant was not the subject of an approved nomination. As the first applicant did not meet the primary criteria, it followed that his family failed to meet the visa criterion.
The applicants sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 22 December 2016 (CB 142-144).
On 27 March 2018, the first applicant emailed the Tribunal to request “priority processing” (CB 164). On 30 April 2018, the Tribunal advised the applicants that their matter did not fit the criteria for priority processing (CB 167-168).
On 3 May 2019, the applicants attended a hearing before the Tribunal (CB 192-197).
On 20 June 2019, the Tribunal wrote to the applicants inviting them to comment on or respond to information (CB 200-201) that the sponsor’s nomination had been refused and that this would be the reason, or part of the reason, that the Tribunal might refuse the visa.
The first applicant provided a response to the Tribunal and a number of supporting documents (CB 204-217).
On 15 July 2019, the Tribunal affirmed the delegate’s decision to not grant the applicants the visa.
The applicants have applied to this Court for judicial review of the Tribunal’s decision. They did so on 29 July 2019. The application for judicial review is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to succeed in this Court, the applicants must establish that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 6 pages long and spans 25 paragraphs.
The Tribunal commences by setting out the background to the application – including the type of visa applied for and the result of the delegate’s decision for the applicant and the sponsor – and notes that the applicants attended a hearing (at [1]-[7] and [11]).
The Tribunal then summarised cl.187.223 of the Regulations (at [9]-[10]) as follows:
9. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.
10. In addition, this criterion also requires that:
• the nomination has been approved and has not been subsequently withdrawn;
• there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information;
• the position is located in regional Australia (as defined in r.5.19);
• the position is still available to the applicant; and
• the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal then gave an overview of what was discussed at the Tribunal hearing (at [12]) and noted that, following the hearing, the sponsor’s nomination had been refused. As such, the first applicant could not satisfy cl.187.223 of the Regulations (at [13]).
The Tribunal then referred to a passage from Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (at [14]) and continued as follows (at [15]):
In this matter, the Tribunal notes that because there is no approved nomination for the primary applicant’s visa application, he cannot overcome his current inability to meet cl.187.233 in relation to his application. The nomination by Satinwood Nominees Pty Ltd as trustee for The Salatam Family Trust was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.
The Tribunal then noted that the applicants had provided a response to the invitation to comment and summarised the content of that response (at [17]-[21]). In particular, the Tribunal noted that the applicants’ response had caused it to have some concern (noting the statements made by the first applicant about the difficult situation he is in). Unfortunately, the Tribunal had no discretion to waive the relevant criteria. The Tribunal explained:
20.Of concern to the Tribunal, the applicant states: “I am finished, I am in depression sometimes I am thinking about suicide. Please tell me what is my fault. Maybe this is my life’s last letter.” The Tribunal acknowledges that the applicant is in a very difficult position at present, but notes that it does not have any discretion to take the applicant’s personal circumstances into consideration in assessing whether or not he can satisfy the criteria for the grant of his Subclass 187 visa.
21. However, the Tribunal does wish to note that at the hearing, the Tribunal found the applicant to be a genuine and credible witness who has worked diligently for his nominating employer for a number of years. The Tribunal notes that Mr Salamone indicated his strong support for the applicant to continue working for the nominating employer for the long term, and notes that Mr Salamone believes the applicant is an important person within his business. The Tribunal acknowledges that the applicant is in a vulnerable position due to his reliance on his migration agent in respect of his visa application.
The Tribunal concluded that, as the first applicant could not satisfy cl.187.223 of the Regulations, the visa must be refused (at [22]-[23]). As the first applicant did not meet the criterion for the visa, the Tribunal found that the other applicants also could not be granted the visa (at [24]).
The Tribunal affirmed the decision under review.
Proceedings in this Court
The applicants’ judicial review application dated 29 July 2019 contains one ground of review as follows:
The Assessment was unfair because at time of the lodgement I provide all the documents even my business nomination was approved for three years.
Despite an opportunity to provide an amended application, affidavit evidence and an outline of submissions, no further documents were filed by the applicants. However, shortly prior to the hearing on 29 June 2020 Chambers received a number of emails from the applicant attaching various documents (including a decision of the Administrative Appeals Tribunal relating to the sponsor, documents that appear to have been submitted to the Tribunal in relation to the sponsor’s decision and correspondence from the Minister’s Department, migration agents and other organisations).
The materials before the Court include the application for judicial review, a Court Book numbering 235 pages (marked as Exhibit 1), the documents provided to Chambers numbering 62 pages (marked as Exhibit 2), an outline of written submissions filed by the Minister on 12 June 2020 and an outline of submissions provided by the applicants prior to the hearing on 29 June 2020.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the other applicants. At the start, of the hearing the Court confirmed with the applicants that they had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to elaborate on, and further particularise, the sole ground of review as well as explain if there was anything else that he thought the Tribunal “did wrong”. This is now the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to the first applicant that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant them the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that the Tribunal took almost 30 months to complete the review. He explained that when the applicants lodged the documents, they “had everything ready”. The first applicant also referred to another employee who had his related nomination approved within one month using the same documents used in the application. Finally, the applicant referred to his “legal adviser” (his migration agent) as not providing documents until “late”.
Consideration
Ground 1 states:
The Assessment was unfair because at time of the lodgement I provide all the documents even my business nomination was approved for three years.
In the response to the request for information, the first applicant stated:
Firstly, when i logged my file on 26 feb 2016 my nomination was valid till 7 April 2018
It is not clear what the applicant is stating in relation to the sole ground of review. In his written submissions, the first applicant stated that he was talking about the “standard business sponsor” which had been approved for three years.
There is nothing in the materials before the Court that indicates that the first applicant was the subject of a valid and approved nomination in relation to this particular visa.
In his visa application for the visa, the first applicant specifically identified the “related nomination” details and provided the transaction reference number of “EGOAUUXKTH” (CB 1). That transaction number matches the transaction reference number of the sponsor (CB 208). It was that nomination which had to be approved (not a previous nomination). Hence, as identified in the applicants’ own application, the first applicant was not the subject of an approved nomination as the “related nomination” for this particular visa was not approved.
Hence, on the materials before the Court, the first applicant was never, in the context of this particular application, the subject of an approved nomination.
Ground 1 is, accordingly dismissed.
Otherwise
In his capacity as a model litigant, the Minister addressed a number of further matters. In particular, the Minister addressed:
a)whether the decision was “fair”; and
b)the applicant’s suggestion to the Tribunal that he was “wrongly guided” by his migration agent.
In relation to whether the Tribunal gave the applicants’ procedural fairness, the Court finds:
a)the Tribunal adhered to the obligations in s.359A of the Act when sending the applicants the invitation to comment on 20 June 2019. The first applicant responded to that information;
b)the applicants were invited to a hearing and the first applicant attended a hearing. There is nothing to suggest that the first applicant was unable to meaningfully engage with the Tribunal at that hearing. As such, the obligations in s.360 of the Act were adhered to;
c)the Tribunal had no reason to exercise its discretion to adjourn at any stage. Nor does it appear that any request was made; and
d)there is nothing on the face of the decision to indicate that the Tribunal displayed actual or apprehended bias. As the Minister notes, the Tribunal’s considerate statements at [20]-[21] indicate that the Tribunal was sympathetic to the applicants’ situation and thought highly of the first applicant.
The first applicant’s oral submissions emphasised that it took 30 months for the Tribunal to determine his application. He stated that he made inquiries and the Tribunal told him that it would take 18-24 months and that the delay had an impact on his future. While the Court sympathises with the applicants, the fact that there was 30 months between the applicants filing the application and the Tribunal determining the application does not indicate jurisdictional error.
There is no statutory period within which the Tribunal must determine an application. Delay may be found to have caused jurisdictional error in circumstances akin to those canvassed by the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (“NAIS”). Those circumstances do not arise here. The delay between the Tribunal hearing and the decision was just over two months in duration. No issue of the kind that arose in NAIS is relevant here.
Simply put, the delay in attending to the application was a result of a system that suffers from an extraordinary work load and limited resources. The result (delay), while most regrettable, is not evidence of jurisdictional error.
Accordingly, no denial of procedural fairness arises here.
The first applicant further submitted that his migration agent had “wrongly misguided” him. It is unclear whether this is relevant to a previous migration agent who was assisting the first applicant with his permanent residency status. Attached to the applicant’s submissions were documents relating to the previous migration agent. If the applicant is referring to the previous migration agent, then such conduct cannot vitiate the present Tribunal’s decision. It did not have any bearing on the decision relevant here.
As to the migration agent who assisted the applicants in relation to the current application, on the materials before the Court there is nothing to indicate that the migration agent acted fraudulently. The applicants referred to the documents that were asked for and indicated that the migration agent did not provide relevant documents. At its highest, it appears that the migration agent was potentially negligent or inadvertent in his duties. This conduct does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501.
Should the applicants feel aggrieved by the conduct of either migration agent, they should consider contacting the Office of the Migration Agents Registration Authority. This agency is best equipped to deal with the sorts of concerns raised here.
At hearing and in the written submissions provided to the Court by the applicants just prior to the hearing, the first applicant also referred to the fact that a colleague had applied for “the same visa” and had been “nominated by the sponsor” and had his visa approved by the Minister’s Department “within two months”. Some of the documents in Exhibit 2 were relevant to this submission. The first applicant submitted that this was most unfair.
Again, this is unfortunate and is undoubtedly frustrating. However, the fact that another visa applicant was granted a visa (having been nominated in an almost identical position and by the same sponsor using the same documents) does not evidence jurisdictional error. The Court’s jurisdiction is limited to the Tribunal’s consideration of the applicants’ application. The Tribunal is not bound by the decisions of other administrative decision-makers. The Tribunal must arrive at its own independent conclusion. Hence, the fact that someone else was granted a visa and the applicants were not amounts to no higher than disagreement with the Tribunal’s decision.
The Minister also made submissions that the Tribunal correctly set out the applicable legislation and applied it. This, on its face, is incorrect. The Tribunal referred to cl.187.233 on three occasions during the course of its decision (at [13], [15] and [24]). Clause 187.233 was irrelevant to the Tribunal’s review. Clause 187.233 was relevant to the Direct Entry Stream. The Tribunal noted on a number of occasions that the applicants had applied for the Temporary Residence Transition Stream which, relevantly, meant that cl.187.223 was applicable and not cl.187.233.
While the Tribunal may have incorrectly referred to the relevant legislative provision, this is not material and does not demonstrate jurisdictional error. Clauses 187.223 and 187.233 are identical in terms. No different outcome could result from an “error” of this sort.
Finally, the Court notes that it has reviewed in detail the content of Exhibit 2. As the Minister submitted, the weight to be afforded to these materials is limited. Some of these materials were already in the Court Book, others were not before the Tribunal and, finally, most were relied upon for the purpose of seeking merits review.
The Court has remained astute to the possibility of error in the Tribunal’s decision: as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392). The Court has been unable to identify any “mistakes” that amount to jurisdictional error. While the Court has a great deal of sympathy for the applicants, the only decision open to the Tribunal here was to affirm the decision under review.
Conclusion
The applicants’ application for judicial review fails to identify any jurisdictional error. The Court (and the Minister) have also assessed the decision for any identifiable error. None arise.
The application is, accordingly, dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 July 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
0
13
3