Kalakuntla v Minister for Home Affairs

[2019] FCCA 3663

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALAKUNTLA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3663

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Employer Nomination visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Home Affairs not to grant Employer Nomination (Class EN) (Subclass 186) visas to the applicants – first applicants’ employer’s nomination was refused by the Minister for Home Affairs and therefore the applicants could not meet and satisfy cl.186.223(2) of the Migration Regulations 1994 (Cth) – no jurisdictional error otherwise established by the applicants – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 359A, 359C

Migration Regulations 1994 (Cth)

Cases cited:

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

First Applicant: SRINIVAS KALAKUNTLA

Second Applicant: ROHINI TUMMA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 845 of 2019

Judgment of: Judge Dowdy

Hearing date: 29 November 2019

Delivered at: Sydney

Delivered on: 29 November 2019

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second Applicant.

Counsel for the First Respondent: Mr H. Gao

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 4 April 2019 is dismissed.

2. The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $6,000.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 31 January 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 845 of 2019

SRINIVAS KALAKUNTLA

First Applicant

ROHINI TUMMA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicants in this proceeding are as follows:

   a)the First Applicant is a male citizen of India aged 36 years, having been born on 14 April 1983; and

   b)the Second Applicant is a female citizen of India aged 31 years, having been born on 8 April 1988 and is the wife of the First Applicant.

   (and collectively the Applicants). 

2. By Application filed in this Court on 4 April 2019 they seek to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 22 March 2019 affirming the decision of the Delegate (Delegate) of the Minister for Home Affairs (Minister), dated 1 December 2016 refusing to grant to them Employer Nomination (Class EN) (Subclass 186) visas (Employer Nomination visa(s)) under s.65 of the Migration Act 1958 (Cth) (the Act).

Background

1. The First Applicant was the primary applicant for the Employer Nomination visa and sought it on the basis of his employment as a cook in a nomination lodged by his employer, being All Seasons Aust Gourmet NSW Pty Ltd (the employer).

2. The Second Applicant was a secondary applicant for the Employer Nomination visa on the basis of being a member of the family unit of a person who met the primary criteria for the grant of the Employer Nomination visa.

3. It was necessary for the First Applicant to satisfy cl.186.223 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), and in particular cl.186.223(2):

   186.223

   (1)  The position to which the application relates is the position:

   (a)    nominated in an application for approval that:

   (i)     identifies the applicant in relation to the position; and

   (ii)    is made in relation to a visa in a Temporary Residence Transition stream; 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.

   (3A)  Either:

   (a)  there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)  it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (4)  The position is still available to the applicant.

   (5)  The application for the visa is made no more than 6 months after the Minister approved the nomination.

   (emphasis added)

Decision of Delegate

1. In his Decision Record the Delegate recorded that on 28 September 2016 the nomination of the First Applicant by the employer, being the nomination under cl.186.223(1) of the Regulations (All Seasons Nomination application), had been refused by a Delegate of the Minister and accordingly the First Applicant could not meet and satisfy cl.186.223(2).

2. The Delegate noted that by letter dated 2 November 2016 the Department of the Minister had invited the Applicants, through their migration agent, to comment on the refusal of the All Seasons Nomination application, but no response had been received.

3. Accordingly, the Delegate refused to grant the Employer Nomination visas to the Applicants. 

Decision of Tribunal

1. The Applicants lodged an application for merits review of the Delegate’s decision with the Tribunal on 6 December 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.

2. On 3 May 2018 the Applicants and their migration agent attended a hearing before the Tribunal, which was combined with a hearing of the review by the Tribunal of the Delegate’s decision to refuse the All Seasons Nomination application. The evidences establishes that the hearing extended for approximately 40 minutes.

3. At the hearing in this Court the First Applicant, who appeared for himself and the Second Applicant who has returned to India, asserted from the Bar Table that he had not had, in truth, a hearing before the Tribunal and he had not been asked to speak at the hearing by the Tribunal member. Other than that assertion, the only evidence of what happened at the Tribunal hearing on 3 May 2018 is the Tribunal Hearing record and the Decision Record of the Tribunal itself.

4. The Applicants had accepted by consent order 5 made on 17 May 2019 that the onus of supplying a transcript of the Tribunal hearing lay upon them and no such transcript has been tendered in evidence. It is of course the case that one of the reasons that applicants for visas employ migration agents is to attend Tribunal hearings where the migration agent will make the submissions and, in particular, where an applicant may, as here, have less than a completely full facility in the English language. In any event, I am not prepared to find on the basis of the assertion from the Bar Table that a proper and meaningful Tribunal hearing was not given to the Applicants on 3 May 2018.

5. At [6] of its Decision Record the Tribunal noted that the Applicants had appeared before it at joint hearings held with the employer on 3 May 2018, 12 December 2018, 10 January 2019 and 24 January 2018, of which latter date I find to be a typographical error for 24 January 2019. I find that the three hearings subsequent to the first combined hearing of 3 May 2018 were in fact hearings held in relation to the review of the Delegate’s refusal of the All Seasons Nomination application and there is no evidence one way or the other whether the Applicants attended the last three hearings.

6. From [11] – [15] of its Decision Record the Tribunal recorded as follows:

   [11] The Tribunal [1616001] refused to approve the nomination, of the applicant, by All Seasons Aust Gourmet Produce NSW Pty Ltd for the occupation of Cook on 6 March 2019.

   [12] On 4 March 2019 the Tribunal sent to the applicant a letter pursuant to s.359A of the Act stating as follows: [(s.359A letter)]

   You were nominated for the purposes of your Subclass 186 visa application, by an employer, All Seasons Aust Gourmet Produce NSW Pty Ltd in accordance with r.5.19(3) of the Migration Regulations 1994 (the Regulations).

   However, on 1 March 2019, the Tribunal refused the application for approval of the nominated position lodged by All Seasons Aust Gourmet Produce NSW Pty Ltd.

   This information is relevant to the review because it could lead the Tribunal to find that you do not satisfy the criteria for the visa because the relevant nomination to which your application relates has not been approved as required by cl.186.223(2) of the Schedule 2 to the Regulations.

   If we rely on this information in making our decision, we may affirm the decision of the delegate to refuse to grant the visa.

   [13] The Tribunal requested that the applicant give comments on or respond to the above information in writing by 18 March 2019.

   [14]On [10] March 2019 the applicant sent a request to the Tribunal. The applicant stated:

   I was informed by my boss that he completed their hearing and member has refused the application on 6th of March 2019.

   We are not sure about our visa refusal status at present, if it is refused we are unable to leave the Country within 28 days. At present my wife is 36+ weeks pregnant and our doctor told us that she can’t travel at this stage as she due in 2,3 weeks. When we tried to call Airlines they said they won’t allow after 36 weeks pregnancy.

   After delivery we need some time to apply passport and visa for our newborn baby to leave the country. I am attaching my wife’s yellow form and scan report. If you need any doctor certificate as a proof we are ready to submit. Can you please consider our situation and advise for proceeding.

   [15] The Tribunal has considered whether the email received from the applicant is a response to the s.359A invitation. The applicant did not refer to the s.359A invitation. The applicant did not address the adverse information provided by the Tribunal, the applicant did not suggest that the applicant still wanted an oral hearing. The merely sought information regarding his migration status. The Tribunal is not satisfied that the email of 11 March 2019 was a response to the s.359A invitation. On that basis the Tribunal finds that the applicant did not respond to the s.359A invitation. As the applicants failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant's comments/response or to obtain the information invited to be provided.

7. In the result, because of the Tribunal’s affirmation of the Delegate’s refusal of the review application with respect to the All Seasons Nomination application on 1 March 2019, the Tribunal found that the Applicants could not satisfy cl.186.223(2) of the Regulations and accordingly it affirmed the Delegate’s decision not to grant the Employer Nomination visas to the Applicants.

Ground of Attack on Tribunal Decision in this Court

1. The Applicants relied upon the following Grounds:

   1. The Administrative Appeals Tribunal unreasonably exercised its jurisdiction by not affording me an opportunity of a hearing.

   2. The Administrative Appeals Tribunal acted unreasonably by making a decision on my application simply on the grounds that my nominators application for a review was also affirmed.

Consideration

Ground 1

1. The Applicants were accorded a hearing before the Tribunal with their migration agent on 3 May 2018. I consider that the Tribunal was legally correct to find that the Applicants did not respond to its s.359A letter of 4 March 2019. The email of the First Applicant of 10 March 2019 (see [14(14)] above) in the first paragraph acknowledged the failure of the merits review of the Delegate’s decision to refuse the All Seasons Nomination application and establishes that the First Applicant knew and understood, at least by the date of the email, that the review of the All Seasons Nomination application had been refused by the Tribunal.

2. The balance of the email went to the issue of when the Applicants could be in a reasonable position and condition to leave Australia. A fair reading and construction of the email is that it is, in fact, an acceptance of the inevitability of the failure of their review of the Delegate’s decision to refuse them Employer Nomination visas. On no reasonable reading can the email be regarded as a giving of information or a response to or comment upon the s.359A letter, such that the Tribunal was not entitled to apply and proceed under s.359C of the Act, as it did.

3. In my view the Tribunal was entitled to proceed to its decision without any further hearing or receiving more information from the Applicants. Further, nothing the Applicants could have further meaningfully put to the Tribunal would have had any utility. The plain and simple fact was that the Tribunal, in the circumstances, could not have done anything else but affirm the decision of the Delegate under review in circumstances where it had affirmed the Delegate’s decision not to approve the All Seasons Nomination application.

4. For the same reason, it would be futile for this Court to remit the review application of the Applicants to the Tribunal, because the Tribunal would, again, necessarily have to affirm the Delegate’s decision because of the Applicants’ inability to be able to satisfy cl.186.223(2) of the Regulations: see generally the judgment of Mortimer J with Jagot and Bromberg JJ agreeing in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 and in particular on the issue of futility at 285 – 287 [81] – [90].

5. Accordingly Ground 1 fails to establish jurisdictional error.

Ground 2

1. This Ground must fail. It was essential and mandatory for the Applicants to satisfy cl.186.223(2) of the Regulations, but they could not. Their success in the Tribunal was dependent on the success of the review of the All Seasons Nomination application. The Tribunal having affirmed the decision refusing to approve the All Seasons Nomination application, it would have remained the case that the First Applicant was not the subject of an approved nomination and therefore could not satisfy an essential criterion for the grant of the Employer Nomination visa. Essentially, the only decision the Tribunal could make was to affirm the decision refusing the Employer Nomination visas because an essential criterion for the grant of the visas was not met.

Submissions at the Hearing

1. At the hearing the First Applicant complained that, in effect, he was not happy with the decision or justice of the Tribunal’s decision and he should be repaid the fee that he has apparently paid in the amount of some $1,600. He also complained about the delay of some two or two and a half years between the time he and his wife made the Employment Nomination visa applications and the delivery of the Tribunal’s decisions.

2. However, there is a rational explanation for the delay in, at least, the fact that the Tribunal heard a combined joint hearing on 3 May 2018 and then extended further opportunities for the employer to appear and make submissions at the hearings on 12 December 2018, 10 January 2019 and 24 January 2019. Further, the sheer number of review applications that have to be dealt with by the Tribunal must be had in mind. No delay has occasioned any injustice to the Applicants or jurisdictional error in the circumstances of this case.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  13 December 2019