Jaspreet v Minister for Immigration
[2019] FCCA 3562
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JASPREET & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3562 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of employment visas – no approved sponsor – whether the Tribunal should have adjourned the review pending a fresh sponsorship nomination by the first applicant’s employer – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.359A Migration Regulations 1994 (Cth) |
| Cases cited: Kaur v Minister for Immigration & Anor [2017] FCCA 564 |
| First Applicant: | JASPREET JASPREET |
| Second Applicant: | MAMTA RANI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1730 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 21 June 2018 is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1730 of 2018
| JASPREET JASPREET |
First Applicant
| MAMTA RANI |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The first applicant, Mr Jaspreet, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 June 2018. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants Employer Nomination (Permanent) visas. There were two applicants, Mr Jaspreet and his wife, Mamta Rani before the Tribunal. Likewise, there are two applicants in the proceedings before me, although I understand Mr Jaspreet’s wife has returned to India with their infant child.
Background facts relating to this matter are otherwise conveniently set out in the Minister’s outline of submissions filed on 20 September 2019.
Mr Jaspreet and Ms Rani applied for Employer Nomination (Class EN) visas on 24 May 2017.[1] Mr Jaspreet sought to satisfy the primary criteria for the grant of the visa. The application was lodged in relation to Mr Jaspreet’s employment as a Customer Service Manager (ANZSCO:149212) by his sponsor KP Sidhu Investments Pty Ltd (the sponsor). Mr Jaspreet claimed to satisfy the criteria for the Subclass 186 visa under the Temporary Residence Transition stream.
[1] Court Book (CB) 1
On 27 October 2017, Mr Jaspreet and Ms Rani were invited to comment on information that the nomination submitted to the Minister’s Department by the sponsor listing Mr Jaspreet as their nominee had been refused.[2] Mr Jaspreet and Ms Rani provided a response to the effect that their nominator would lodge a new nomination application.[3] By email dated 5 December 2017, the Minister’s Department replied to Mr Jaspreet and Ms Rani informing them that the relevant provisions of the Migration Regulations 1994 (Cth) (Regulations) did not provide scope for new nominations to be lodged against visa applications already lodged, referring to paragraph 186.223(1)(c) of Schedule 2, and paragraph 1114B(3)(d) of Schedule 1.[4]
[2] CB 15
[3] CB 19
[4] CB 22
The delegate refused the visa application on 5 December 2017.[5] The delegate set out clause 186.223, relevantly as follows:
[5] CB 28
186.223
(1)The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The Minister has approved the nomination.
(3)The nomination has not subsequently been withdrawn.
…
The delegate found that on 22 August 2017, the sponsor’s nomination application was refused. Therefore, clause 186.223(2) was not met.
Mr Jaspreet and Ms Rani sought review by application to the Tribunal made on 24 December 2017.[6] They attached to their application form a copy of, relevantly, the delegate’s reasons for decision.[7]
[6] CB 34
[7] CB 40
On 27 August 2018 the Tribunal wrote to Mr Jaspreet and Ms Rani under s.359A of the Migration Act 1958 (Cth) and invited them to comment on or respond to information, particularised as follows:[8]
Your application was based on a position which was nominated by your sponsor, K & P Sidhu Investments Pty Ltd, which must be approved by the Minister for you to meet the criteria for the grant of the visa. On 26 October 2016 the application for approval of the nomination for the appointment was refused by the Department. An application for a review of that decision by the sponsor was unsuccessful and the decision of the Department refusing the nomination application was affirmed by the Tribunal on 26 April 2018. The decision of the Department to refuse the nomination now stands and you are not subject to an approved nomination.
[8] CB 50
The Tribunal explained the relevance of the information and invited Mr Jaspreet and Ms Rani to comment or respond.
Mr Jaspreet and Ms Rani attended a hearing before the Tribunal on 1 June 2018[9] at which dispositive issues were traversed.
[9] CB 67
On 1 June 2018 the Tribunal affirmed the delegate’s decision.[10] The Tribunal stated, at [13], that it had explained to Mr Jaspreet the issue that arose on the review. At [14], the Tribunal recorded that Mr Jaspreet asked the Tribunal to delay any decision until the nomination application filed in November 2017 had been finalised.
[10] CB 73
The Tribunal made its decision on the day of the hearing, namely 1 June 2018. It set out the relevant provisions of the Regulations, at [17], including stating that “the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.” The Tribunal found that the sponsor’s nomination application had been refused by the Minister’s Department, and that decision affirmed by the Tribunal. No application for judicial review had been lodged by the sponsor against the Tribunal decision. As Mr Jaspreet was not the subject of an approved nomination, he did not satisfy clause 186.223(2), at [18].
The current proceedings
These proceedings began with a show cause application filed on 21 June 2018. Mr Jaspreet continues to rely upon that application. It was prepared by his former solicitor, who is unfortunately deceased. There is one ground of review in it:
The Tribunal erred in law and in its jurisdiction when it appeared to have refused the visa applicant's request for an adjournment of a hearing pending a departmental decision on an already lodged nomination application of the employer/sponsor for a customer service manager. The Tribunal refused saying that as a different application by the same employer sponsor naming the same visa applicant had already been refused, there was no justification to wait upon the outcome of that application filed in November 2017. The applicant says that refusal was based an irrelevant consideration and was contrary to law.
An affidavit made by Mr Jaspreet’s former solicitor, accompanying the application, was not read.
I have before me as evidence the court book, filed on 5 December 2018. Mr Jaspreet denied receipt of the court book, which is explicable by the fact that it had been sent to his former solicitor. I took him through the documents and am satisfied that he has not been prejudiced today by the late receipt of the court book. Most of the documents in it would have been already familiar to him.
Only the Minister prepared written submissions in advance of today’s hearing. I invited oral submissions from Mr Jaspreet. He told me of his frustrations. He has apparently been in this country for about eight years and has been working for most of that time in Coffs Harbour, apparently for the same delivery company. He was successful in obtaining a temporary employment visa, in 2014, but his efforts to obtain the permanent visa were unsuccessful, due to the refusal of the sponsorship by the business.
Mr Jaspreet believes that he has been disadvantaged by dealing with an unregistered migration agent, against whom he has grievances. It does appear that, once notified of the absence of an approved sponsor and being invited to withdraw his visa application, Mr Jaspreet might have been better advised to take that option. He did not do so and is extremely reluctant to return to India to wait a period of apparently two years before he could reapply. His options are, at this point, quite limited. He may be eligible to apply for some other form of visa, or the same form of visa if he can obtain a sponsorship. Mr Jaspreet cannot understand why the sponsorship applications made by his employer were not successful because it seems the business is not only viable but successful, and Mr Jaspreet is not aware of anything adverse concerning the business. These are matters beyond the scope of these proceedings, but they are matters that could be considered by the Minister if he was so minded.
Consideration
Unfortunately for Mr Jaspreet, the legal issues in the case are quite clear. He could not obtain the visa he sought without an approved employer nomination. Neither could he substitute a fresh nomination in the visa application he made. It follows that the Tribunal made the only decision available to it.
Even if, on judicial review, some error was identified, it would, in my view, be futile to remit the matter to the Tribunal, as the same decision would have to be made. In that regard, I agree with the Minister’s submissions.
The Tribunal’s refusal to delay its decision (in effect, to adjourn the review) was based on cogent and rational reasons, and no jurisdictional error is otherwise disclosed. At [19], the Tribunal stated:
The applicant requested the Tribunal to delay any decision until after the Department had assessed the further nomination application filed by K P Sidhu Investments Pty Ltd in November 2017. The Tribunal does not consider it appropriate to delay making a decision in this matter until after the Department has finalised that nomination application. The Tribunal has not received any documentation or information as to the details of that application or the information provided by K P Sidhu Investments Pty Ltd in support of that application. It is speculative as to whether the Department would now approve that nomination application in light of previous nomination application having been refused. There is no information as to how long the Department requires before being able to finalise that application. Even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be relevant to the current visa application (see Kaur v MIBP [2017] FCCA 564).
It would have been an exercise in futility for the Tribunal to delay making its decision in relation to a nomination application that could not have assisted Mr Jaspreet in satisfying the criteria for grant of the visa.[11] The matters the Tribunal referred to at [19] were all permissible considerations.
[11] Kaur v Minister for Immigration & Anor [2017] FCCA 564 at [23]–[25] per Judge Lucev
Conclusion
I conclude that Mr Jaspreet is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $5,600. Mr Jaspreet indicated he may need to pay by instalments but did not oppose the making of a costs order.
I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 December 2019
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