Gurung v Minister for Immigration
[2016] FCCA 2184
•1 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GURUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2184 |
| Catchwords: PRACTICE & PROCEDURE – New ground raised in oral submissions at hearing. |
| Legislation: Migration Act 1958 (Cth), ss.348, 349, 360 Migration Amendment Regulation 2012 (No. 2) (Cth), sch.1, item 41 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Islam v Minister for Immigration & Border Protection [2015] FCCA 617 |
| First Applicant: | DEEPAK GURUNG |
| Second Applicant: | MANILA SHAKYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 731 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 August 2016 |
| Date of Last Submission: | 1 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2016 |
REPRESENTATION
| The applicants appeared in person. |
| Solicitors for the Respondents: | Mr T. Galvin, Minter Ellison |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 731 of 2015
| DEEPAK GURUNG |
First Applicant
| MANILA SHAKYA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
The applicants are citizens of Nepal. On 30 January 2012, they applied for an Employer Nomination (Residence) (Class BW) subclass 856 visa. The application was made on the basis that the first named applicant satisfied the primary criteria for the visa and that the second named applicant satisfied the secondary criteria namely, that she was a member of the family unit of the first applicant. For that reason, I will refer to the first applicant as the applicant in these proceedings.
Background
There were two relevant criteria for the grant of the visa at the time of the visa application. The first, which was to be satisfied at the time of the application for the visa was set out in cl.856.213(a) in sch.2 of the Migration Regulations 1994 (Cth), which provided:
The applicant has been nominated by an employer, in accordance with subregulation 5.19(2), for an appointment in the business of that employer.
…
The second relevant criterion was in cl.856.221, which was to be satisfied at the time of the decision. That criterion provided:
856.221The appointment mentioned in paragraph 856.213(a):
(a)has been approved; and
(b)has not been withdrawn; and
(c)continues to satisfy the criteria for approval; and
(d)is still available to the applicant.
The Tribunal described the relevant factual matters concerning those two criteria in its decision at [15] as follows:
As indicated above at the time of application, the applicant had been nominated in accordance with the regulations by the nominator, the Trustee for Pillay Family Trust for an appointment in the business of that employer. On 26 September 2013 the Department refused the employer nomination, and accordingly the appointment was not approved. On 11 December 2014 the Tribunal affirmed that decision.
…
On 13 November 2013, a delegate of the Minister made a decision to refuse to grant the applicants a visa on the basis that their employer nomination had not been approved. I note that the decision record wrongly records the date as 24 September 2013 on the first page, but the last page of the decision record properly records that it was made on 13 November 2013. The applicants then applied to the Migration Review Tribunal[1] for a review of the delegate’s decision. By letter dated 16 December 2014, the Tribunal set out particulars of certain information and invited the applicant to comment on that information by 30 December 2014.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The information in question was effectively that the application for approval of the nomination had been refused by the Department and that that decision had been affirmed by the Tribunal on 11 December 2014. The Tribunal extended the time for complying with that request and on 19 January 2015 (although the letter is wrongly dated 19 January 2013) migration agents acting for the applicant wrote to the Tribunal. The response by the agent included the fact that the decision about sponsorship had been made because the sponsor had been barred for a particular time, but in fact the sponsor had recently received an approval of a nomination under reg.2.63 of the Regulations.
In light of that, the agents requested the Tribunal to consider the nomination application by the Pillay Family Trust again, and allow the applicant’s nomination, so that the application for a visa by the review applicant would not be jeopardised. It will be seen that this request was the focus of the applicant’s oral submissions to the court. By letter dated 5 February 2015, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments on 6 March 2015.
The applicant sought a postponement of that hearing upon the basis that he and his partner would be returning to Nepal to visit the applicant’s partner’s mother who was at the time very ill. The Tribunal did not postpone the hearing but amended the date of the hearing to bring it forward to 25 February 2015. Prior to that day, the applicant’s agents again wrote to the Tribunal by letter dated 13 February 2015. This time they submitted that the employer had submitted a new nomination for the applicant under reg.5.19 of the Regulations on 12 February 2015 and they asked that, as the nomination application was still pending, the Tribunal allow additional time until a decision had been made on that application and that the Tribunal postpone the hearing until such a decision had been made.
The Tribunal did not postpone the hearing but proceeded to conduct a hearing on 25 February 2015 and made its decision on the same day. In its statement of reasons it explained the basis for which it refused to postpone the hearing in accordance with the request made by letter dated 13 February 2015. At [16] to [22] of its reasons, the Tribunal explained:
[16]At the hearing the Tribunal explained to the applicants that it had formed the preliminary view that the applicant could not satisfy cl.856.221 on the basis of the new nomination, because the appointment to which the new nomination relates is not, in the Tribunal’s view, the appointment mentioned in paragraph 856.213(a). The Tribunal explained that the employer nomination scheme was overhauled from 1 July 2012 and that the amendments completely revised r.5.19 by dividing employer nominations into different streams with different requirements, and that visa subclasses 856 and 857 were replaced by visa subclasses 186 and 187. It explained that the employer nomination lodged by the Trustee for Pillay Family Trust under r.5.19, in February 2015, after 1 July 2012, would be assessed against the post 1 July 2012 version of r.5.19, where the related visas would be subclasses 186 or 187 and not subclasses 856 or 857.
[17]The applicants indicated that they had been told by Mr Pillay that their subclass 856 visa applications would be unsuccessful because the related nomination application had not been approved. They indicated that they understood they would need to make new visa applications relating to the new nomination application. They asked that the Tribunal postpone making its decision while the Department considers the new nomination application. The Tribunal has considered this request, however as it explained to the applicants at the hearing, it does not consider there is any utility in waiting for the Department’s decision in relation to the new nomination application because, for the reasons discussed below, the outcome of that application will not affect the outcome of this review.
[18]Having considered all of the evidence and the relevant regulations, the Tribunal has formed the view that is it not permissible for the applicant to rely on a post 1 July 2012 employer nomination, if one were to be approved, in order to meet cl.856.221, for the following reasons.
[19]Part 856 refers to the concept of ‘approved appointment’ and the note to cl.856.111 provides that ‘for approved appointment, see r.5.19’. The term ‘approved appointment’ is defined in r.1.03 to mean ‘a nominated position that is approved under subregulation 5.19(1B)’.
[20]Unlike the pre 1 July 2012 version of r.5.19, the current version of r.5.19 does not contain r.5.19(1B), nor does it use the term ‘approved appointment’. Therefore, even if the new nomination is approved, it appears that it cannot be relied upon to satisfy cl.856.221(a) given that the approval of the new nomination cannot be described as an approval of ‘the appointment’ in the relevant sense.
[21]Also, reading cl.856.221 and cl.856.213(a) together, the reference to ‘the appointment mentioned in paragraph 856.213(a)’ in cl.856.221 means the appointment ‘nominated…in accordance with subregulation 5.19(2)’ at the time of application. This suggests that the reference to r.5.19(2) in cl.856.213(a) should be the pre 1 July 2012 version of r.5.19(2), rather than the post 1 July 2012 version of r.5.19(4). As the new nomination was not made in accordance with the pre 1 July 2012 version of r.5.19(2), it cannot be said that it is ‘the appointment mentioned in paragraph 856.213(a)’ as required by cl.856.221.
[22]For above reasons, the Tribunal is of the view that the new nomination, if approved, cannot be used to meet cl.856.221 in this case.
In effect, the Tribunal did not postpone the hearing because there had been a change in the scheme relating to business nominated visas with effect from 1 July 2012, such that the new nomination could not lead the applicant to satisfy the criteria for the grant of his visa. The Tribunal then concluded that the appointment mentioned in cl.856.213(a) was not approved and therefore that the applicant did not satisfy cl.856.221(a), and therefore did not meet cl.856.221 as a whole. For that reason, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of the visa and so affirmed the decision not to grant the applicants the Employer Nomination (Residence) (Class BW) visa.
Proceedings in this Court
The applicant appeared unrepresented at the hearing and while he did not address the grounds in the application, he raised an argument which requires some consideration. I will deal with the oral ground first. Essentially, the argument is that the Tribunal erred by not looking at the Tribunal’s previous decision to affirm the decision not to approve the appointment nominated by the employer, which decision had been made on 11 December 2014. There are a number of difficulties facing the applicant in this respect.
First, the ground is based essentially upon what is perceived to be an unfairness forced upon them, namely, that the decision in the applicant’s instance was made on the basis that the employer had faced sanctions for some reason, and yet in other cases had in fact been approved in nominations. It may be that there was such an unfairness, although there is insufficient material before the Court for me to be satisfied of that. Even if there were such an unfairness, it would not be sufficient to ground any judicial review. As explained by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, the court is limited in judicial review to determining whether the administrative decision-maker has acted within the bounds of its legal authority and not whether that decision made by the decision-maker is unfair.
The next difficulty, is that the Tribunal’s authority in this case was limited to reviewing the decision of the delegate to refuse to grant the applicant an employer nomination visa. The duty under s.348 of the Migration Act 1958 (Cth) arose upon an application being made by the applicant in connection with that decision, and that decision alone. Perhaps, more importantly, the power that the Tribunal has on review is limited to that under s.349 and, as made clear by that section, does not extend to a decision other than the decision to refuse to grant the visa.
For that reason, even if the Tribunal could have looked at the earlier decision to affirm the decision not to approve the appointment, that would not have involved error. Principally, this was because even if that decision was wrong or affected by some jurisdictional error, the Tribunal had no power to set it aside, to vary it, to make some other decision. In light of that, the decision, even if void for some reason, would have left the applicant unable to satisfy the criterion in cl.856.221 simply because the appointment would still have not been approved.
For those reasons, the ground raised by the applicant at the hearing cannot succeed.
Consideration
First and Second Grounds
There are three grounds in the written application, the first two of which might be dealt with together and are set out below:
1.The Second Respondent made jurisdictional error by failing to consider the application of the principles expressed in Minister for Immigration and Citizenship v Li [2013] HCA 18, in relation to the exercise of the power and discretion under s363 (1) (b) to adjourn review of the decision.
2.The Applicant made a request to postpone the hearing to provide all relevant information and to have the hearing conducted after the nomination decision was finalised however the Second Respondent made a premature decision.
The reason for which the Tribunal did not accede to the request to postpone its review of the delegate’s reason pending the outcome of the new application for approval by the employer, was that the new nomination, even if approved, could not be used to meet cl.856.221.
The amendments to which the Tribunal referred were brought initially by the Migration Amendment Regulation 2012 (No. 2) (Cth) (“Amending Regulation”): see sch.1, item 41. The transitional arrangements were, according to those amendments, effected by sch.13 of the Amending Regulation, which provided that the amendments by those regulations applied in relation to:
…
(a)an application for a visa made on or after 1 July 2012; and
(b)an application for approval of a nomination made on or after 1 July 2012.
…
The application for approval of a nomination in this case was made in 2015. Thus, the amendments made with effect from 1 July 2012 applied to that application and the Tribunal was correct to find that the new version was, therefore, different. The next step in the reasoning was that cl.856.221 could not be satisfied. It will be recalled that that clause refers to:
The appointment mentioned in paragraph 856.213(a):
…
As the Minister points out, a number of decisions in this court have found that that reasoning is sound. See Salam v Minister for Immigration & Border Protection [2014] FCCA 1799 at [16] and Islam v Minister for Immigration & Border Protection [2015] FCCA 617 at [19]. In my view, those decisions were correct and therefore I am bound to follow them.
In light of that, the basis for the Tribunal’s refusal was not only reasonable, but it was correct, and thus unlike the decisions in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, relied upon by the applicant in these grounds, there was an evident logical foundation for the decision not to postpone the review. For those reasons, grounds 1 and 2 are rejected.
Third Ground
Ground 3 is that the applicant was denied procedural fairness by the respondent. The first particular is that the applicant had no control over the application for nomination which had already been refused by the respondent. In my view, that is not something which goes to whether or not procedural fairness was afforded by the Tribunal. That is particularly so in the circumstances that the Tribunal, as it was required to, gave the applicant the opportunity to respond in writing to information concerning the refusal of the approval of the nominated position.
The second particular is that the applicant was not given the opportunity to comment on the information as to why the subsequent nomination filed by the sponsor would not be accepted. It may be queried whether, that being a question of law, such an opportunity was required to be given. Even if it were, it appears from [17] of the Tribunal’s reasons that the Tribunal did raise that issue at the hearing and that the applicant was thereby given the opportunity provided for by s.360 of the Act in connection with that issue.
Conclusion
For those reasons, the grounds in the application are not made out. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 31 August 2016
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