Gulati v Minister for Immigration

[2016] FCCA 2263

FEDERAL CIRCUIT COURT OF AUSTRALIA

GULATI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2263

Catchwords:

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

ADMINISTRATIVE LAW – Whether administrative decision to refuse a visa was an “MRT-reviewable decision”.  

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.5, 140E, 140GB, 338, 474

Migration Regulations 1994, regs.2.56, 2.58, 2.75, 4.02, cl.457.223 of sch.2
Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SAHIL GULATI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2480 of 2014

Judgment of: Judge Cameron

Hearing date: 19 July 2016

Date of Last Submission: 19 July 2016

Delivered at: Sydney

Delivered on: 19 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J. Pinder of Minter Ellison

THE COURT DECLARES THAT:

1. The Administrative Appeals Tribunal, as successor to the Migration Review Tribunal, did not have jurisdiction to review the decision of the delegate dated 16 May 2014 in Department of Immigration and Border Protection file number BCC2014/909931.

ORDERS

1. Orders 1 and 2 made on 16 May 2016 be set aside.

2. A writ of certiorari issue bringing into this Court to be quashed the decision of the Administrative Appeals Tribunal, as successor to the Migration Review Tribunal, dated 7 August 2014.

3. The first respondent pay the applicant’s costs of the proceeding as agreed or assessed.

4. The applicant pay the first respondent’s costs thrown away by reason of order 2 as agreed or assessed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2480 of 2014

SAHIL GULATI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a citizen of India, applied for a Business (Long Stay) subclass 457 visa on 27 January 2012. On 22 February 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the English language requirements for the grant of the visa. The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. On 11 March 2014 the Tribunal remitted the applicant’s matter to the Department of Immigration and Border Protection (“Department”) for reconsideration. On 16 May 2014 a second delegate of the Minister refused the applicant’s application on the basis that he did not satisfy cl.457.223(4)(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he was not the subject of an approved nomination by an approved sponsor. The applicant again sought review with the Tribunal and on 7 August 2014 the Tribunal, differently constituted, affirmed the second delegate’s decision to refuse the applicant a visa.

2. On 4 September 2014 the applicant commenced proceedings in this Court seeking judicial review of the second decision made by the Tribunal: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. The applicant’s application was listed for its first court date on 29 September 2014. The applicant appeared at that first court date and the matter was listed for callover on 29 January 2015. The applicant was also present at the callover and on that occasion the parties were advised that the matter would be listed on a future date which would be notified to them administratively. By letter dated 6 April 2016 the parties were advised that the matter had been listed for a further callover on 16 May 2016. That letter was sent to the applicant at the address for service which appeared on his originating application. The applicant did not appear in court on 16 May 2016 and on the application of the Minister the proceedings were dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

3. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders made by this Court on 16 May 2016 on the basis that they were made in his absence.

4. In deciding whether to grant the current application, consideration must be given to whether the applicant’s explanation for his non-attendance on 16 May 2016 is a satisfactory one and whether, nevertheless, he has reasonable prospects of success on the principal application. 

5. In the absence of reasonable prospects of success, an application is liable to be dismissed. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant will not have demonstrated that his substantive case has reasonable prospects of success unless he can demonstrate that he has reasonable prospects of demonstrating that the Tribunal’s decision is affected by jurisdictional error.

SATISFACTORY EXPLANATION

1. Turning first to whether the applicant has provided a satisfactory explanation for his non-attendance, in his affidavit of 27 May 2016 in support of his application in a case, the applicant deposed that he had failed to attend the callover because the letter advising him of the listing had been misplaced.  He deposed that the letter might have been delivered to a nearby address which was almost identical to his own.  In his address to the Court at the hearing of this application in a case, the applicant repeated that assertion by way of submission.  The applicant’s submissions to the Court did not relevantly take the matter further than the material to which he deposed in his affidavit of 27 May 2016. 

2. The substance of the applicant’s affidavit and his submissions to the Court were that he had not received the Court’s letter.  His explanation for how that might have happened can be taken to be no more than speculation and an attempt to explain why the letter was not received.  Nevertheless, notwithstanding that no evidence was adduced that the letter actually did go astray in the manner deposed to by the applicant, I am prepared to accept that the applicant did not receive the letter from the Court.  Very shortly after the matter was dismissed on 16 May 2016, the applicant applied to the Court for its reinstatement.  The speed of his action tends to bear out his assertion that he did not receive written notification from the Court about the callover in May.  That being so, I am also prepared to accept that he did not receive a letter sent at about the same time by the Minister’s solicitors.  I find that he has provided a satisfactory explanation for his failure to attend on the last occasion. 

REASONABLE PROSPECTS OF SUCCESS

Relevant legislation

1. The criteria for the grant of a subclass 457 visa are found in pt.457 of sch.2 to the Regulations. One of the primary criteria which the applicant had to satisfy at the time a decision was made on his application was cl.457.223(4). At the time the decisions of the second delegate and the reconstituted Tribunal were made, cl.473.223(4) provided:

   Standard business sponsorship

   (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 ...

2. The Act and the Regulations provide for a scheme under which employers who wish to employ overseas employees may apply to the Minister to be approved as sponsors for such a purpose. Section 5 of the Act relevantly defines an “approved sponsor” as:

   (a)     a person:

   (i)who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

   (ii)whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class ...

3. Section 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more prescribed classes of sponsorship if the person satisfies the prescribed criteria. Regulation 2.58 of the Regulations prescribes a number of classes of sponsors, among which is a “standard business sponsor”.

4. By operation of s.140GB(1) of the Act and reg.2.56(k) of the Regulations, an approved sponsor is able to nominate an applicant for a subclass 457 visa. Section 140GB(2) provides that the Minister must approve an approved sponsor’s nomination of an applicant if the prescribed criteria are satisfied. An approved nomination ceases twelve months after the day on which it is approved: reg.2.75(2)(b) of the Regulations.

Background facts

1. In his application form lodged on 27 January 2012 the applicant indicated that he was sponsored by a business named Jai Sachidanand Pty Ltd for the position of Cook.  On the same day the applicant’s proposed sponsor also applied to the Department for approval as a standard business sponsor.  At some undisclosed point, the applicant’s proposed sponsor was approved as a standard business sponsor and it also obtained an approved nomination in favour of the applicant.  As already noted, on 22 February 2012 a delegate of the Minister refused the applicant’s application on the basis that he did not satisfy the English language requirements for the grant of the visa. 

2. On 20 March 2012 the applicant filed with the Tribunal an application for review of the delegate’s decision.  While the applicant’s application for review was still pending, on 22 February 2013 the approved nomination which had been obtained by his sponsor in his favour expired.  On 6 May 2013 the Tribunal wrote to the applicant requesting, amongst other things, evidence that he was the subject of an approved nomination by a standard business sponsor which had not ceased.  In a written response dated 3 June 2013 the applicant’s representatives submitted that although the applicant’s approved nomination had lapsed, his sponsor was willing to file a new nomination application once the applicant had received the results of an English language test he had undertaken.  Accompanying the submission was a letter from the director of Jai Sachidanand Pty Ltd confirming that Jai Sachidanand Pty Ltd intended to lodge a new nomination in favour of the applicant.  The applicant’s representatives later provided to the Tribunal a copy of the applicant’s sponsor’s further nomination application in relation to the applicant made on 5 September 2013.  The outcome of that nomination application is unknown to the Court.

3. On 11 March 2014 the Tribunal found that the first delegate’s decision concerning the applicant’s English language ability was erroneous and remitted the applicant’s application to the Department for reconsideration.  Following that remittal, on 3 April 2014 the Department wrote to the applicant advising him that he was required to provide evidence of a new nomination because his approved nomination had expired.  On 16 April 2014 the applicant’s migration agent responded and stated that the applicant was looking for a new sponsor and required some time for that.

4. On 16 May 2014 a second delegate of the Minister refused to grant the applicant a visa. In reaching that decision, the second delegate noted that the approved business nomination which had been lodged by the applicant’s sponsor had expired on 22 February 2013 and that despite being asked to provide evidence of an approved nomination the applicant had not done so. The second delegate therefore found that the applicant did not meet the requirements of cl.457.223(4)(a).

5. The applicant then sought review of the second delegate’s decision with the Tribunal.  On 7 July 2014 the Tribunal wrote to the applicant in the following terms:

   You are invited to provide the following information in writing:

   ·Information to demonstrate that you are the subject of an approved nomination of an occupation, which has not ceased, as required by cl.457.223(4)(a);

   OR

   ·Information to demonstrate that you will meet this requirement in the near future and before a decision is made on your review application – for example, information to demonstrate that your sponsoring employer is an approved business sponsor and has made a nomination application relating to you which is currently being processed by the Department of Immigration and Border Protection.

6. On 18 July 2014 the applicant responded stating that his previous sponsor had diversified its business into the transport sector and was no longer able to sponsor him.  He stated that one of his prospective employers was taking steps to lodge a nomination application in his favour.  At a hearing before the reconstituted Tribunal on 7 August 2014 the applicant said that he had ultimately been unable to secure the support of the employer referred to in his letter dated 18 July 2014 and asked for more time to find another sponsor.  He also said that he had had difficulties securing a position as a Cook because he suffered from asthma.

7. The reconstituted Tribunal found that there was no evidence before it indicating that the applicant was the subject of an approved nomination which had not ceased. It considered the applicant’s request for additional time to locate an employer who was willing to nominate him but declined his request. In that regard, it noted that its letter of 7 July 2014 had invited the applicant to provide information in relation to an approved nomination but he had been unable to provide evidence which indicated that a prospective employer was willing to support him and had lodged a relevant nomination or was preparing to do so. The reconstituted Tribunal found that the applicant did not meet cl.457.223(4)(a) and therefore affirmed the second delegate’s decision to refuse him a visa.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal erred in law by misconstruing the provisions of the Migration Regulation 1994 relating to the sub class 457 visa regulations.

   Particulars

   The applicant’s sponsor was initiating the process to nominate him but was not granted time to produce the records.

   2.The Tribunal failed to provide adequate opportunity to the First applicant to adduce additional evidence and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The Tribunal failed to consider that the applicant’s nomination was initially approved by the DIBP and the nomination validity period had lapsed while the review was pending before the MRT on the first occasion.  The applicant’s sponsor was once again initiating the process to nominate him.  The applicant requested for some more time on the date of hearing before the Tribunal so that the applicant can adducing additional evidence regarding his nomination by the sponsor which was rejected by the Tribunal.

2. Intending no disrespect to the applicant, the outcome of this matter does not turn on the allegations made in his application. 

3. The Minister’s case responding to the application to reinstate turned on s.338(2)(d) of the Act which at all relevant times provided:

   338  Decisions reviewable by Migration Review Tribunal

   …

   (2)  A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:

   …

   (d)  where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)      the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)     an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

4. At all relevant times, reg.4.02(1A) of the Regulations prescribed subclass 457 visas for the purposes of s.338(2)(d) of the Act. In that connection, although when the applicant made his application, subclass 457 visas were entitled “business (long-stay) visas”, and in more recent times have been known as “temporary work (skilled) visas”, the substance of the criteria for the grant of the visas set out in pt.457 of sch.2 to the Regulations is much unchanged over the period relevant to this matter. The most significant change to subclass 457 criteria in the relevant period, the deletion of portions relating to independent executives, service sellers, persons accorded certain privileges and immunities and IASS agreements which were formerly found in subclauses (7A), (8), (9) and (10) of cl.457.223, was of no relevance to the applicant’s application. I am satisfied that at all relevant times subclass 457 visas, however described and defined, were prescribed for the purposes of s.338(2)(d). That being so, s.338(2)(d) applied to the applicant’s application to the Tribunal.

5. There is no evidence before the Court concerning the applicant’s sponsorship status other than what appears in the Court Book and the relevant facts as found by the Tribunal were ones which were conceded by the applicant before the Tribunal.  In that regard, in para.12 of its reasons, the Tribunal recorded that the applicant stated that he had not, at that time, been able to find a sponsoring employer.  He further indicated to the Tribunal that he had been unable to secure the support of the employer whom he had earlier thought might sponsor him. 

6. As the Tribunal observed, there was no evidence before it which indicated that there was an approved nomination of an occupation relating to the applicant made by a standard business sponsor which had not ceased and no evidence has been placed before the Court that, at the time the application to the Tribunal was made, there had been an approved nomination of an occupation relating to the applicant made by a standard business sponsor which had not ceased.  Similarly, there was no evidence in the Court Book or otherwise provided to the Court to suggest that at the time the applicant made his application for review to the Tribunal, an application for a review of a decision to not approve a sponsor had been made and that a review of that decision was pending. 

7. For these reasons, the applicant did not, at the time he sought from the Tribunal review of the second delegate’s decision, satisfy the requirements of s.338(2)(d). That is to say, the second delegate’s decision was not an “MRT-reviewable decision” and, as a consequence, the Tribunal did not have jurisdiction to review the second delegate’s decision. That being so, the Tribunal’s decision is liable to be set aside, although, because the Tribunal would have no jurisdiction to re‑hear the matter were the applicant’s case to be remitted to it, the Court would not order a writ of mandamus issue directing the Tribunal to reconsider the review application.

8. In those circumstances, although no practical benefit could flow from setting the Tribunal’s decision aside, nevertheless, that is an order which the applicant has sought and which it has been demonstrated ought to be granted.  It is a regrettable fact that setting the Tribunal’s decision aside will not, in a practical way, improve the applicant’s position. 

1. I find that the arguments today have demonstrated not only that the applicant has reasonable prospects of demonstrating that the Tribunal’s decision ought to be set aside, but that it ought to be set aside, albeit on a basis completely different from the one which the applicant propounded in his application. 

2. I will therefore order that the orders made on the last occasion be set aside and, further, that a writ of certiorari issue to quash the decision of the Tribunal dated 7 August 2014.

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

Date: 2 September 2016