Heenatigala v Minister for Immigration
[2020] FCCA 1055
•6 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEENATIGALA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1055 |
| Catchwords: MIGRATION – Regional Employer Nomination Visa – decision of the Administrative Appeals Tribunal – nomination withdrawn – no jurisdictional error –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359, 359A, 359AA, 476 Migration Regulations 1994 (Cth), cl.187.223 |
| Cases cited: Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267 |
| First Applicant: | PUBUDUNI NIROSHIMA HEENATIGALA |
| Second Applicant: | RAVISAD MALINDA WALPOLA KANKANAMALAGE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 36 of 2017 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 18 March 2019 |
| Date of Last Submission: | 18 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2020 |
REPRESENTATION
| Applicants: | The First Applicant in person and on behalf of the Second Applicant |
| Counsel for the First Respondent: | Ms A Briffa |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application dated 20 November 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 36 of 2017
| PUBUDUNI NIROSHIMA HEENATIGALA |
First Applicant
| RAVISAD MALINDA WALPOLA KANKANAMALAGE |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 20 November 2017, the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 18 October 2017. The Tribunal affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister) not to grant the Applicants a Regional Employer Nomination (Permanent) (Class RN) visa (Visa).
The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). Only if the Applicants establish that the Tribunal has fallen into jurisdictional error can the Court grant them the relief that they seek.
Background
The Minister’s submissions (at [2]-[10]), dated 14 March 2019 accurately summarise the factual background to this matter. The Court adopts that summary. With some amendments, it provides as follows.
The First Applicant and Second Applicant are married citizens of Sri Lanka (wife and husband respectively)[1].
[1] Court Book (CB) 16-30.
On 9 May 2016, the First Applicant applied for the Visa. The Second Applicant was included as a member of the First Applicant’s family unit in the Visa application[2]. The First Applicant’s nominated occupation was as a “Retail Manager (General)”.
[2] CB 16-30.
On 2 May 2017, the Delegate wrote to the Applicants to inform them that the sponsorship nomination submitted by Raminea Pty Ltd ATF the Ian Duncan Family Trust, who had listed the First Applicant as their nominee had been refused[3]. The Applicants were advised that this meant that they could not be granted the Visa and the Delegate invited them to withdraw their Visa application or to respond within 28 days. No response was received.
[3] CB 54-57. This was incorrect. The sponsorship nomination had in fact been withdrawn (CB 97). Nonetheless, nothing turns on this point as the effect of a withdrawal or refusal was the same.
On 12 June 2017, the Delegate refused to grant the Visa to the Applicants[4] (Delegate’s Decision). The Delegate found that the First Applicant did not meet cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and the sponsorship nomination had been withdrawn. As the First Applicant did not meet the primary criteria for the Visa, the Second Applicant could not meet the criteria to be granted the Visa.
[4] CB 65-73.
On 26 June 2017, the Applicants lodged an application for review of the Delegate’s Decision with the Tribunal[5]. The Applicants were assisted by a migration agent.
[5] CB 74-75.
On 16 October 2017, the Applicants attended a hearing before the Tribunal[6].
[6] CB 88-89 and 104-105.
On 18 October 2017, the Tribunal affirmed the Delegate’s Decision to refuse the Applicants the Visa[7].
[7] CB 111-114.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 111-114 of the Court Book.
The Tribunal set out the background to the information under review. It noted the type of visa the Applicants had applied for, why the Delegate had refused the Visa and that the Applicants had attended a hearing before the Tribunal[8].
[8] CB 112, at [1]-[9].
After noting that the issue in the case was whether the First Applicant met cl.187.233 of the Regulations, the Tribunal summarised the required criterion[9].
[9] CB 112-113, at [10]-[12].
At [13]-[14] of its decision, the Tribunal writes as follows:
13. The Tribunal explained to the applicant that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to her. As recorded in the primary decision, a copy of which she provided to the Tribunal, this position nomination was withdrawn and therefore is no longer available to her. The applicant agreed this is the case but said she lodged another 187 visa 3 months ago and has another nomination with a different employer.
14. The applicant said she had the nomination and worked at the hotel as a Retail Manager for 13 months and asked if there was any possibility of looking at whether or not visas can proceed earlier. The Tribunal said the consideration of visa applications is the department’s responsibility and it has no influence as to when matters are decided. The applicant said that 3 days after her employer withdrew her nomination the visa was refused. It was withdrawn because she had some medical and personal issues which she has evidence of and could not lift any weights and had difficulty with a previous manager. The applicant came to Australia at age 18 and studied here for 4 years. She came from Darwin for the hearing. She wants to stay in Australia and it took 13 months to get a decision from the department. It was a very hard time and she has medical expenses she cannot meet as her Medicare card has been withdrawn. She does not have health Insurance because she lodged her last visa offshore. The applicant asked the Tribunal if it could help her to get a decision on her new application sooner. The Tribunal repeated that has no influence as to when matters are decided. The applicant fears the same thing might happen again with her new nomination if she has to wait another 13 months and said she is feeling depressed and anxious. She was visibly upset throughout the hearing. The Tribunal repeated that it has no influence in relation to when her new 187 will be determined but suggested that if she has relevant medical evidence she could provide this to the department. The second named applicant declined the opportunity to give evidence.
Noting that the First Applicant had confirmed in her evidence that she was not the subject of an approved nomination, the Tribunal found that cl.187.233 was not met[10].
[10] CB 114, at [15]-[16].
Being satisfied that the First Applicant did not meet the criterion for any other stream, the Tribunal affirmed the Delegate’s Decision not to grant the Applicants the Visa[11].
[11] CB 114, at [17]-[19].
Judicial Review Application
The Applicants’ judicial review application contains six grounds of review:
1. The Administrative Appeals Tribunal fell into jurisdictional error when it did not consider that on 9 June 2017 when the decision of the delegate for Minister for Immigration was made to refuse the application, there was employment dispute between the applicant and Raminea Pty Ltd the Nominator.
2. Administrative Appeal Tribunal fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359 of the Migration act, when it did not get any information relevant to the employment dispute between the applicant and the Raminea Pty Ltd the Nominator before coming to the decision to affirm the decision not to grant the applicants Regional Employer Nomination (Class RN) visas.
3. The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359AA (1)(b) of the Migration Act 1958 (Cth) in that it did not
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;
4. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to ask itself the correct questions in relation to the review;
5. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to adequately and/or properly assess the evidence before it;
6.Such further and/or other and/or additional grounds as the Applicant may submit in due course.
(Errors and omissions in original)
The Applicants, while represented for a period of time, were not represented when the matter came on for hearing. Despite an opportunity to file written submissions or further affidavit evidence, the Applicants filed no further materials.
The matter came on for hearing on 18 March 2019. During the course of the hearing (after the First Applicant had made her submissions), the Minister advised the Court that the First Applicant had written to the Minister’s solicitor seeking an adjournment of the hearing. The Minister tendered correspondence (the email requesting the adjournment) which was marked as Exhibit 1. The Minister also tendered two further documents: a medical certificate dated 17 March 2019 and a psychological assessment dated 4 March 2019. These were marked as Exhibit 2 and Exhibit 3 respectively.
The Court then asked the First Applicant whether she was still wanting an adjournment of the hearing. The First Applicant indicated that she did not need any adjournment and she was able to participate and say everything that she wanted to say[12]. On that basis, the matter proceeded to be heard in its entirety.
Consideration
[12] Transcript from hearing 17.05.2018 (Transcript): P11, L18-19, L28-19.
Ground 1
The Administrative Appeals Tribunal fell into jurisdictional error when it did not consider that on 9 June 2017 when the decision of the delegate for Minister for Immigration was made to refuse the application, there was employment dispute between the applicant and Raminea Pty Ltd the Nominator.
At the hearing, the First Applicant submitted that after a dispute with her sponsor, they withdrew her nomination without advising her. She submitted that she did not do anything wrong. This situation caused her great distress.
Unfortunately, the reason why the sponsor’s nomination came to be withdrawn was irrelevant to the Tribunal’s task when determining whether the Applicants met the criterion to be granted the Visa. It was a mandatory requirement that the First Applicant be the subject of an approved nomination that had not been withdrawn.
The First Applicant confirmed at the Tribunal hearing that she was not subject of an approved nomination. On that basis alone, the Tribunal was required to refuse to grant the Visa notwithstanding any compelling or unfair reasons why the First Applicant did not meet the criterion.
Ground 1, accordingly, is dismissed.
Ground 2
Administrative Appeal Tribunal fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359 of the Migration act, when it did not get any information relevant to the employment dispute between the applicant and the Raminea Pty Ltd the Nominator before coming to the decision to affirm the decision not to grant the applicants Regional Employer Nomination (Class RN) visas.
At the hearing, the First Applicant appeared to concede that from a legal perspective, without a nomination she cannot be granted the Visa. However, the First Applicant said that from a human side, there should be a way “someone can think of me”[13].
[13] Transcript: P4, L39-44.
For the reasons expressed above in relation to ground 1, ground 2 must also fail.
There was no reason for the Tribunal to “get” (pursuant to s.359 of the Act) any information about the employment dispute as such was irrelevant to the Tribunal’s consideration. The only relevant information was whether there was or was not an approved nomination.
Ground 2 is dismissed.
Ground 3
The Administrative Appeals Tribunal erred in law and/or in fact and/or fell into jurisdictional error when it breached and/or failed to follow and/or adhere to s 359AA (1)(b) of the Migration Act 1958 (Cth) in that it did not
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;
When asked to comment on ground 3 at the hearing, the Applicant’s submissions related to a different visa application and are therefore irrelevant.
There was no requirement for the Tribunal to follow or adhere to s.359A or s.359AA of the Act in the Applicants’ case. The only “information” that was before the Tribunal was the information that the sponsor had withdrawn the nomination. The Applicants were invited to comment on this by the Delegate prior to the Delegate making their decision. The basis of the Delegate’s Decision was that the nomination had been withdrawn. The Applicants were on notice of the determinative issue and the fact that the sponsor had withdrawn the nomination was not “information” that was required to be put to the Applicants under s.359AA of the Act.
Ground 3 is dismissed.
Ground 4
That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to ask itself the correct questions in relation to the review;
At the hearing, the First Applicant submitted no oral submissions relevant to this ground.
In relation to ground 4 substantively, it is apparent that the Tribunal did not fail to ask itself the correct question. The Tribunal correctly noted the issue that was before it[14]. It then set out the legislative provisions relevant to determining that issue[15]. It then determined whether the criterion was met. It did so having regard to the First Applicant’s own concession that she was not the subject of an approved nomination.
[14] CB 112, at [10].
[15] CB 113, at [11]-[12].
The Tribunal did not consider the wrong question. Ground 4 is dismissed.
Ground 5
That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to adequately and/or properly assess the evidence before it;
The First Applicant advanced no oral submissions relevant to this ground.
Without the Applicants identifying what evidence was not adequately assessed, it is difficult to determine whether an error has arisen.
Here, it was not in dispute that the First Applicant’s sponsor had withdrawn the nomination. This was the only relevant evidence that the Tribunal needed and the First Applicant herself verified it.
If the First Applicant is stating the Tribunal failed to properly assess the dispute with the sponsor that led to the withdrawal, for the reasons already given this was not relevant. If the First Applicant is stating that the Tribunal did not properly assess her evidence that she had lodged a new visa with a new nomination and that she was suffering hardship because she had medical expenses, again it was not relevant for the Tribunal to consider this. The Tribunal did acknowledge these matters in its decision[16]. It is not the case that the Tribunal could have assessed the Visa on the basis of the nomination that was lodged with the Applicants’ new application. The review had to be considered with regard to the specific nomination identified in the Visa application, the Tribunal could not substitute a new nomination[17].
[16] CB 113-114, at [14].
[17] Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267.
The simple fact is that the only relevant evidence that was required to be assessed was whether the specific nomination that is the subject of this Visa application had been approved and not withdrawn. That was not the case here.
Ground 5 is dismissed.
Ground 6
Such further and/or other and/or additional grounds as the Applicant may submit in due course.
At the hearing, the First Applicant made a statement about the issues and hardship that she has faced in relation to her immigration status. The First Applicant explained the circumstances regarding the dispute with the sponsor who withdrew her nomination. She explained that the subsequent nomination by a different employer for a different visa was refused because the employer had made a mistake and not her. The First Applicant also submitted that the time in which it took to process the visa was “unhuman”[18]. She has become depressed and lost hope.
[18] Transcript: P8, L9.
The matters referred to in the First Applicant’s submissions do not identify any jurisdictional error in the Tribunal’s decision. The fact that the Minister’s department took a period of time to process the Visa and that the First Applicant considers this unfair is not a matter for the Court in a judicial review application. While the Applicants have had difficulty with their ability to obtain a visa of this sort, the Court cannot take this into consideration.
The Applicant also made some comments about how her migration agent could have allowed this to happen - referring to the conduct of her employer[19]. The Court notes that there is no identifiable error on the part of the Applicant's migration agent. Nothing submitted by the Applicant gave rise to any suggestion of fraud. Rather, the Applicant was more aggrieved at the way this situation was allowed to occur.
[19] Transcript: P7, L39 – P8, L9.
Conclusion
The Applicants’ application for judicial review has failed to identify any jurisdictional error.
The application will be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Associate:
Date: 6 May 2020
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