Julakanti v Minister for Immigration

[2014] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

JULAKANTI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1255

Catchwords:
MIGRATION – Employer nomination under Regional Sponsored Migration Scheme – whether withdrawn – whether applicant invited to attend hearing – power of the Tribunal to proceed in the absence of the applicant – whether independent basis for decision – discretion to refuse relief.

Legislation:

Federal Circuit Court Rules 2001, r.15.03

Migration Act 1958 (Cth), s.65, 362B, 379A(4), 477

Migration Regulations 1994, Sch.2, cl.857.221, cl.857.213(a), r.5.19(4)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant: SANTHOSH REDDY JULAKANTI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1847 of 2013

Judgment of: Judge F. Turner

Hearing date: 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Melbourne

Delivered on: 30 May 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application for Judicial Review filed 31 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,100.00.

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1847 of 2013

SANTHOSH REDDY JULAKANTI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 4 October 2013. That decision affirmed the decision of a delegate to the Minister not to grant the applicant an Employer Nomination (Residence)(Class BW) visa.

2. The grounds for the application for judicial review:

   (1)S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised.

   (2)I am not happy  with tribunal decision, applying for judicial review for legitimate decision

   (3)I do have exceptional circumstances beyond the application lodgement previously, as circumstances changed my employer has withdrawn the nomination

   (4)I have received on the decision but I did not receive the hearing invitation to attend by email or mail.

3. By orders dated 22 January 2014, the applicant was ordered to file and serve written submissions, but no submissions have been filed or served. The Court invited the applicant today to make submissions in support of his application for judicial review. The Court sought the consent of the representative of the Minister to deal with the matter pursuant to r.15.03 of the Federal Circuit Rules 2001 (the “Rules”) without hearing oral submissions. That consent was given.

4. On reading the papers in the file, there are documents provided to and from the company which was to be the employer, stating that the company did not seek an employee to perform the position alleged and that the application for employer nomination was filed or was made through fraud. The applicant alleges today that the company manager offered him the job.

5. By letter dated 31 October 2013 which is attached to the Affidavit of the applicant filed on 31 October 2013, the applicant states that he applies for judicial review because he received an unfavourable decision and that he still wants to find an employer in Australia.

6. From the material on file, the Court finds that on 25 June 2012 the applicant lodged his application for employer nomination migration to Australia, with Bryant Concepts Pty Ltd named as the nominating business (Court Book “CB” p.22).

7. The court finds that there is a file note dated 5 March 2013 on the Departments file that the:

   “… person who nominated the position not authorised to do so as not employed in the business – now in custody for fraud.” (CB p.118)

8. In the Supplementary CB filed in Court today (at p.1) there is a letter from the administration officer of Bryant Concepts Pty Ltd addressed to ‘Nicki’ (who the Court is advised is an officer of the Department). That letter states:

   “Further to our telephone conversation, Bryant Concepts Pty Ltd was NOT aware that an application had been completed for a “pre press worker”.

   As stated Bryant Concepts Pty Ltd has not advertised for a

   
   

   pre press worker position as we are Building Designers & Structural & Civil Engineers. 

   Please see attached letter from Mr Bryant advising the Immigration Department to withdraw the fraudulent application.”

9. The letter dated 5 March 2013 from Bryant Concepts states:

   “Please note Siva Selva never worked for Bryant Concepts Pty Ltd nor had any position at Bryant Concepts Pty Ltd or any authority to submit any applications on behalf of Bryant Concepts Pty Ltd.

   Please withdraw the fraudulent application.” (Supplementary CB p.2).

10. That material was before the Tribunal and the Tribunal was entitled to act on it. On 5 March 2013, the Department wrote to Mr John Bryant of Bryant Concepts Pty Ltd acknowledging the company’s withdrawal of its application for a Regional Sponsored Migration Scheme nomination. (CB p.119). The nomination of the applicant was therefore withdrawn on 5 March 2013 (CB p.119).

11. On 6 March 2013, a delegate to the Minister refused to grant the applicant a visa, because the applicant did not satisfy cl.857.221 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) (CB pp.123 to 128).

12. The Tribunal found that:

    “The primary criteria to be satisfied at the time of application for a Subclass 857 visa as set out in the then Subdivision 857.21 of Part 857 of Schedule 2 to the Regulations includes that the applicant has been nominated by an employer, in accordance with r.5.19(4), for appointment in the business of that employer: cl.857.213(a).” (CB p.149 [9]).

13. The Tribunal found that:

    “The primary criteria to be satisfied at the time of decision includes that the appointment mentioned in cl.857.213(a) has been approved and has not been withdrawn: cl.857.221.” (CB p.149 [10]).

14. The Court finds that the application by Bryant Concepts Pty Ltd for a Regional Sponsored Migration Scheme nomination, for the applicant was not approved and was withdrawn on 5 March 2013 (CB p.119).

15. The Court notes that the applicant stated today that the nomination was approved, he believes by somebody in South Australia.

16. The papers relevant to that appear from CB p.94 onwards. That approval, however, is not approved by the relevant Department of the Commonwealth. The Court finds that at the time of the decision of the delegate on 6 March 2013 (CB pp.127 to 128), the nomination had not been approved and had been withdrawn. The Tribunal was therefore not satisfied that the appointment mentioned in clause 857.213(a) had been approved and found that it had been withdrawn (CB p.149 [12]).

17. The Tribunal then found that the applicant did not satisfy the essential criterion for the grant of the visa and affirmed the decision of the delegate not to grant the applicant a visa (CB p.149 [12]).

18. Once the Minister or his delegate were satisfied the prescribed criteria had not been satisfied, the Minister is required by s.65 of the Migration Act 1958 (the “Act”) to refuse to grant a visa. That is what occurred in this case. No error of law has been established. 

19. By letter dated 6 September 2013, the applicant was invited to attend the hearing on 4 October 2013 (CB pp.140 to 141). The applicant did not attend the hearing (CB p.148 [5]). The applicant claims that he did not receive the invitation to attend, either by email or mail.

20. Section 362B of the Act provides that:

    (1)If the applicant:

    (a)is invited under section 360 to appear before the Tribunal; and

    (b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

    the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

21. The Tribunal here decided to proceed to review the decision without taking any further action to allow the applicant to appear before it (CB p.148 [6]).

22. The first respondent filed Contentions of Fact and Law in this matter on 26 May 2014. The Court finds that the invitation to attend was sent by registered post, as there is an imprint of a stamp recording that fact at the top of CB p.140. It was sent to the applicant’s address as nominated on his application for review to the Tribunal (CB p.130). That address was 3B Rosenthal Drive, Berri, SA 5343.

23. Section 379A(4) of the Act provides for service by prepaid post to the last address provided by the applicant. The Court finds that the invitation to attend was properly served and sent, and that the Tribunal was empowered to proceed with the hearing without taking any further action to allow the applicant to appear: s.362B of the Act.

24. Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].

25. The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:

    “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”

    [1] [1994] 1 SCR 202 at 228.

    [2]  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].

26. As stated by Kirby J in SZBYR at [88]-[89]:

    “In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”

27. Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:

    “… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].

    As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:

    ‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’ (emphasis added)

    See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).

28. The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:

    “Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”

29. The Court finds that even if the applicant did not receive the invitation to attend, no useful result could ensue from the grant of the relief sought by the applicant in this matter.

30. As to Ground 1 of the application, the review by the Tribunal was finalised by a decision dated 4 October 2013. The applicant applied for judicial review on 31 October 2013, which was within the 35 day time limit prescribed in s.477 of the Act.

31. Ground 1 has no relevance and is dismissed.

32. As to Ground 2, the applicant states that he is not happy with the decision of the tribunal. That statement is an attempt to have the Court review the merits of the Tribunal’s decision. A review of the merits is not available. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

33. Ground 2 is dismissed.

34. Ground 3 alleges exceptional circumstances as the employer withdrew the nomination. That issue has been considered above.

35. Ground 3 is dismissed.

36. Ground 4 relates to the non-receipt of the invitation. That has been considered above.

37. The court accepts the following submissions by the first respondent:

    (24)The Minister contends that the notice of hearing scheduled for 4 October 2013 (CB 140-141) was a valid notice for the purposes of s 360A of the Act. The invitation gave notice of the date, time and place of the scheduled hearing before the Tribunal. The invitation was sent by registered post to the Applicant’s last known address for communication between the Tribunal and the Applicant. The invitation contained a statement about what happened if the Applicant failed to attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. By the operation of s 379A(4) and 379C(4) of the Act, the Applicant was taken to have received the invitation by 17 September 2013. The Tribunal therefore complied with the requirements of giving at least the prescribed period of 14 days’ notice of the hearing.

    (25)There is no error in the Tribunal acting on the basis that it had notified the Applicant of the hearing time and date in accordance with the Act and, in particular, by sending the notice to the Applicant’s nominated address for correspondence. The Tribunal was not apprised of the Applicant’s change of address until 21 October 2013 (CB 150). By that time, the Tribunal was functus officio.”

38. By functus officio, the Court refers to the concept that the official duties of the Tribunal had ceased.

39. Ground 4 is dismissed.

40. The application for judicial review is dismissed. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 16 June 2014