GURUNG v Minister for Immigration

[2015] FCCA 998

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 998

Catchwords:
MIGRATION – Migration Review Tribunal – Employer Nomination (Residence) (Class VW) visa – procedural fairness – 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, s.476
Migration Regulations 1994 reg.5.19

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

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 Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

ORDERS

1. The proceedings be summarily dismissed.

2. The First and Second Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

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

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 25 February 2015 affirming a decision of the delegate not to grant the applicant an Employer Nomination (Residence) (Class VW) visa. 

2. The application identified the following grounds:

   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.

   Particulars

   a) The Applicant was in the process of receiving further information from his sponsor however was denied the opportunity to present this information at the hearing.

   b) The Applicant applied for an adjournment as he was travelling overseas, however the Second Respondent decided to bring the hearing forward, limiting significantly the time he had to provide information regarding the nomination.

   3. The Applicant was denied procedural fairness by the Respondent.

   Particulars:

   a) The Applicant had no control over application for nomination which had already been refused by the Respondent.

   b) The Applicant was not given opportunity to comment on the information as to why the subsequent nomination filed by the sponsor would not be accepted.

3. The application identifies under the first return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Response identifies grounds as to why there was no jurisdictional error and the first respondent indicated that there was no reason why the matter should not be dealt with summarily. The Court then raised with the applicants that it was concerned that, having looked at the decision in the application, that it was not disclosed any arguable jurisdictional error.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118.

5. The first applicant sought to identify that he was the victim of circumstances beyond his control in this case, and that he was the only person who had been treated this way in relation to his employer.  The applicant sought to maintain that there was an error by reason of the refusal to grant the applicant an adjournment.  It was open to the Tribunal to decide that there was no utility in granting an adjournment in circumstances where it was clear that the criteria could not be satisfied by the applicant. 

6. There was no utility in those circumstances in granting an adjournment.  It cannot be said in those circumstances that the decision by the Tribunal lacked an evident and intelligible justification. There is no substance in relation to ground 1 of the application and it does not disclose an arguable jurisdictional error.  For the same reasons, there is no substance in relation to ground 2 of the application and it does not disclose an arguable jurisdictional error.  It was open to the Tribunal to determine the matter, as the further steps being taken by the applicant could not give rise to a satisfaction of the criteria that had not been met. 

7. The first applicant complained that the Tribunal had not given the applicant further time so that he could pursue the nomination.  In the reasons given by the Tribunal, that course was not going to meet the requirements under the criteria, and would not have assisted the applicant.  There is no utility in granting an adjournment or providing further time to the applicant in those circumstances as it will only unnecessarily increase the costs of the parties.  I understand the first applicant’s frustration in that he had no control over the nomination. 

8. That does not mean that there is substance in relation to there being any jurisdictional error by the Tribunal. There is no substance in relation to ground 3 and it does not disclose an arguable jurisdictional error. The Tribunal identified that the applicant has applied for a visa on 30 January 2012 on the basis that the first applicant proposed employment in the position of a cook. The position had been nominated for approval as an approved appointment under reg.5.19 of the Migration Regulations 1994.  At the time of the application, class VW contained two subclasses: 856, Employer Nomination Scheme, and 857, Regional Sponsored Migration Scheme. 

9. The Tribunal pointed out that the nominated position for which the visa was sought is the subject of an employer nomination that was made on the basis of meeting the requirements of reg.5.19. The relevant subclass in the present case was subclass 856. The Tribunal pointed out that the criteria for this visa subclass is set out in part 856 of schedule 2 to the Regulations. The Tribunal identified that the primary criteria must be satisfied by at least one applicant. The Tribunal noted that the delegate refused to grant the visa because the applicant did not meet cl.856.221 of Schedule 2 of the regulations, because the appointment mentioned in cl.856.213(a) had not been approved.

10. The Tribunal noted that the applicants were represented by their migration agent, and that the applicants sought an adjournment while the hearing date was fixed to 6 March 2015 and the Tribunal adjourned the date to 25 February 2015.  On 13 February 2015, the applicants’ representative informed the Tribunal that the sponsor had made a new nomination application on 12 February 2015 and sought a postponement of the application being progressed.  The Tribunal noted the applicants appeared before the Tribunal to give evidence and present arguments on 25 February 2015. 

11. The Tribunal squarely identified that the relevant issue was whether the applicants met the criteria under cl.856.221, which required at the time of the decision the appointment in the business of the employer for which the applicant had been nominated has been approved and not withdrawn. The Tribunal noted that the appointment must continue to satisfy the criteria for approval in reg.5.19(2) of the Regulations and still be available to the applicant. The Tribunal noted that the nominator had been refused by a letter on 26 September 2013 and that the Tribunal affirmed in that decision on 11 December 2014.

12. It was following this that the Tribunal wrote to the applicants, inviting their comments in respect of that changed position.  The applicants’ representative requested an extension of time to provide a new nomination, and the representative provided a fresh employer nomination under the current employer nomination scheme that had been lodged in February 2015.  The Tribunal explained to the applicants that it had formed the preliminary view that the applicant could not satisfy clause 851.221 on the basis of the new nomination because the appointment to which the new nomination relates is not the appointment mentioned in cl.856.213(a). 

13. The Tribunal tried to explain to the applicants the significance of that nomination scheme.  In para.18, the Tribunal noted that it was not permissible for the applicant to rely on a post-1 July 2012 employer nomination if one was to be approved in order to meet cl.856.221.  The Tribunal carefully set out its reasons in that regard.  The Tribunal concluded that the appointment mentioned under cl.856.213(a) was not approved, and on the material before the Tribunal, the Tribunal found that the applicant did not meet clause 856.221(a) and did not meet clause 856.221 as a whole.  It was in those circumstances the Tribunal concluded:

    24. The applicant has only sought to satisfy the criteria for a Subclass 856 visa. No claims have been made in respect of the other visa subclass in the class. As the applicant has not met the criteria for a Subclass 856 visa, the decision under review must be affirmed.

    25. The second named applicant claims to be a member of the first named applicant’s family, and as there is no evidence that she meets the primary criteria for the grant of the visa sought, the Tribunal must also affirm the decision in relation to her.

    26. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.

14. The findings of the Tribunal were clearly open findings and cannot be said to lack an evident and intelligible justification.  It was not necessary for the Tribunal to grant any adjournment as an adjournment would have been of no utility to the applicants in the circumstances.  In relation to these proceedings, I am clearly satisfied that they are doomed to failure.  There is no utility in granting any adjournment of these proceedings in these circumstances as it will only unnecessarily increase the cost to the parties and utilise limited Court time.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015