GUPTA v Minister for Immigration

[2015] FCCA 642

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 642

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.353, 476

Migration Regulations 1994

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

First Applicant: RICHA GUPTA

Second Applicant: ROHIT GUPTA

Third Applicant: RUHANI GUPTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 425 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 23 February 2015, is summarily dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $1,367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 425 of 2015

RICHA GUPTA

First Applicant

ROHIT GUPTA

Second Applicant

RUHANI GUPTA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 seeking a Constitutional writ in respect of a decision of the Tribunal on 29 January 2015 affirming the decision of the delegate not to grant the applicant’s Temporary Business Entry (Class UC) visa.  The application identifies the Court may hear and determine all the interlocutory or final issues, or may give directions for the future conduct of the proceedings.  The grounds in the application are as follows:

   1. The Tribunal erred by not complying with Section 353(1) of the Migration Act.

   Particulars

   Tribunal has failed to fully comply with Section 353(1) of the Migration Act by not acting fairly and justly and denying the applicant sufficient time to organise a new nomination.

2. On the return date, the Court identified to the applicant that it was concerned that the ground identified appeared doomed to failure and invited the applicant to identify an error that this Court has jurisdiction to entertain.  The applicant identified that she wanted to get a lawyer and get further legal advice, and she said she had not seen the Court book.  It is not appropriate to grant an adjournment if it has no utility.  Nor is it appropriate to permit the filing of further material if there is no utility in respect of any arguable ground of error.

3. In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. I take into account, in this regard, that the applicants had applied for the visa on 20 November 2012. In that visa, the first applicant identified a particular entity as her sponsoring employer. The Tribunal identified that at the time of lodging the application, Class UC contained the following subclasses: subclass 456 and subclass 457. The Tribunal noted that it does not have jurisdiction in relation to subclass 456 visa, and that the criteria for subclass 457 visa are set out in part 457 of schedule 2 to the Migration Regulations 1994.

5. One of the criteria to be satisfied at the time of the decision was clause 457.223, which requires the visa applicant to satisfy one of the alternative streams for the visa.  One of these streams is contained in clause 457.223(4), which will be set out in the attachment to the decision:

   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; and

   (aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

   (ba) either:

   (i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii) each of the following applies:

   (A) the applicant is employed to work in the nominated occupation;

   (B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C) if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d) the Minister is satisfied that:

   (i) the applicant’s intention to perform the occupation is genuine; and

   (ii) the position associated with the nominated occupation is genuine; and

   (da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (ea) if:

   (i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

   (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

   (eb) if:

   (i) the applicant is not an exempt applicant; and

   (ii) subclause (6) does not apply to the applicant; and

   (iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

   the applicant:

   (iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec) if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f) either:

   (i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

6. The Tribunal said that, in the present case, specific claim is to be made against clause 457.223(4), which applies to sponsorship for employment in an occupation by a standard business sponsor.

7. The Tribunal noted that the delegate refused to grant the visa on 4 August 2014, on the basis that clause 457.223(4)(a) was not met, because the applicant did not have an approved nomination or an occupation that had not ceased.  The Tribunal noted that the Department had refused to approve the nomination application by the company, which was the entity identified by the applicant.  The applicant appeared before the Tribunal on 4 December 2014 to get evidence and present arguments.  The applicant was represented by a migration agent. 

8. The Tribunal correctly identified that the issue in the present case was whether the primary visa applicant met the requirements of clause 457.223(4)(a).  The Tribunal noted on 27 October 2014 the Tribunal invited the applicants to appear before the Tribunal at the hearing on 4 December 2014, where the applicant attended the hearing and gave evidence.  At that time, the Tribunal explained that it was also reviewing the decision to refuse the approval of the nomination and it make its decision on that first, regarding that nomination.

9. The Tribunal explained that it had not made that decision, but asked the applicant if she had any comment to make, and if it is the case that the Tribunal affirm the decision to refuse the nomination application.  The applicant indicated she had working for the sponsor for three and a half years.  The applicant indicated that she had been promoted, but has only been able to work 20 hours per week because of visa conditions.  The application said the business is growing and she is doing well. 

10. The Tribunal explained that if it affirmed the nomination decision it would write to the applicants in this case inviting any comments from the further information.  The Tribunal also explained that if it affirmed the nomination decision it may find the applicant does not have evidence that meets clause 457.233(4)(a) and it explained it may then affirm the decision to refuse the visas.  The Tribunal noted that, on 5 January 2015, it affirmed the decision not to approve the nomination lodged by the company for the position of customer service manager, for which the applicant was identified as the nominee.

11. On 9 January 2015, the Tribunal wrote to the applicants and invited them to comment on or respond to the information that the Tribunal had affirmed the decision not to approve the nomination lodged by the company for the position of customer service manager, which identified the applicant as the nominee.  The Tribunal expressly identified that the response was due by 23 January 2015.  On 23 January 2015, the applicant provided a response.  She said she needed some time to organise a new nomination. 

12. The applicant did not provide any details regarding her attempt to organise a new nomination, or identify a new sponsor.  She did not provide information indicating an application for approval of a nomination had been made, or was about to be made, by a standard business sponsor.  She merely requested some time to organise a new nomination.  The Tribunal noted that it considered the applicant’s request for further time and that the Tribunal was satisfied the applicant had responded to its letter of 9 January 2015.  It decided not to grant an extension.

13. The Tribunal noted that the applicant had sought some time to organise a new nomination, and that as there was no information before the Tribunal indicating that the applicant would be the subject for an approved nomination in the foreseeable future.  The Tribunal had not agreed to provide further time, and the Tribunal proceeded to make its decision on 28 January 2015.  It was clearly open to the Tribunal, in the circumstances identified, to proceed to make its decision.  It cannot be said that no reasonable Tribunal could have proceeded to make a determination, in the circumstances of the present case.

14. In particular, it was of significance that the request was unsupported by any evidence to identify a potential new sponsor, and it was, in my opinion, open for the Tribunal to come to the finding that it did.  It cannot be said that the decision to proceed to determination was in some way disproportionate in the circumstances of the case, particularly where the original application had been lodged on 20 November 2012 and in circumstances where there was no identified time in respect of the need for, or in respect of the possibility of providing some new nomination, and no evidence to support that such a nomination would be provided in the foreseeable future.

15. I am clearly satisfied that there was no error by the Tribunal, under s.353, in its obligation to ensure the review is fair, just, economical, informal and quick. In these circumstances, the proceedings are clearly doomed to failure. There is no utility in granting an adjournment or permitting the applicant to obtain further material, as it will only add to the cost for the parties and utilise limited Court time. I am clearly satisfied that the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 March 2015