Jaspreet v Minister for Immigration - [2019] FCCA 3562

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3562
Decision Date: 9 December 2019

CaseChat Overview and Summary

Jaspreet (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of her application for employment visas. The refusal was based on the fact that there was no approved sponsor for her employment. The applicant contended that the Tribunal erred by not adjourning the review to allow for a fresh sponsorship nomination by her employer.

The central legal issue before the court was whether the Tribunal committed a jurisdictional error by refusing to grant an adjournment. This required the court to consider the principles governing adjournments in administrative review proceedings, particularly in the context of migration law, and whether the Tribunal's decision to proceed without a fresh sponsorship nomination was legally sound.

Judge Driver found that the Tribunal had not committed a jurisdictional error. The court reasoned that the Tribunal was entitled to make its decision based on the information before it at the time of the hearing. The absence of an approved sponsor was a fundamental requirement for the visa application, and the Tribunal was not obliged to grant an adjournment to allow the applicant to rectify this deficiency, especially when there was no clear indication that a fresh nomination would be forthcoming or that it would satisfy the legislative requirements. The court affirmed that the Tribunal's decision was within its powers and did not involve an error of law.

Orders