Kalia v Minister for Immigration

[2016] FCCA 814

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALIA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 814

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – Temporary Business Entry Visa refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: RAJIV KUMAR KALIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 186 of 2015

Judgment of: Judge Vasta

Hearing date: 23 March 2016

Date of Last Submission: 23 March 2016

Delivered at: Brisbane

Delivered on: 23 March 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 27 February 2015 be dismissed.

2. That the Applicant pay the First Respondents costs fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 186 of 2015

RAJIV KUMAR KAILA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The applicant, Mr Kaila, is a citizen of India. 

2. He lodged an application for a Temporary Business Entry Visa on 25 June 2013. 

3. He nominated Raj and Kaila Trust, trading as Copping Service Station, as the sponsoring employer, and the nominated position that he would have was that of retail buyer. 

4. On 19 May 2014 the delegate of the Minister refused to grant such a visa to the applicant. 

5. The applicant then took the matter to the Administrative Appeals Tribunal (AAT).

6. On 6 February 2015, the Tribunal affirmed the decision of the delegate. 

7. On 27 February 2015, the applicant filed his application in this Court. 

8. The matter has taken until now to come to this court because the Minister was concerned that there was a pending decision before the Full Court of the Federal Court that may, in some way, affect this matter. 

9. It would seem that that decision, when it came down, had no bearing on this matter at all.

10. In short compass, for the applicant to have succeeded here, he had to show that he had an approved nomination; that is, that the employer, the Copping Service Station, had an approved nomination for the applicant.  And then he would then have to show that he had, to use the vernacular, ticked all the boxes so that he could then get the visa.  But the first part of the process really was having the Copping Service Station as an approved employer.

11. The service station was not an approved nominator. 

12. That separate decision was made by the delegate and the Copping Service Station themselves took the matter to the Administrative Appeals Tribunal. The Tribunal affirmed that decision that the employer would not be an approved nominator. 

13. Therefore, when the matter came before the AAT, the applicant could never have succeeded, because the Copping Service Station was not an approved nominator.  The Tribunal acted accordingly, and affirmed the decision of the minister.

14. The applicant brought the matter to this court, and there were quite a number of grounds of appeal, but they really had very little merit.  I will, for completeness’ sake, read those into the record:

    “ 1. The Department of Immigration and citizenship and Migration Review tribunal erred in determining on the basis that the applicant (Rajiv Kumar Kalia) didn’t satisfy the requirement of cl457.223(4)(a) of the Migration Act.

    2. That the Department of immigration and Tribunal erred in not taking into account that Mr Rajiv Kumar Kalia at all times substantially complied with his previous Tourist visa subclass 600.

    3.  The DIBP and Tribunal failed to give a genuine opportunity to provide the suitable documents by the applicant. DIBP and MRT failed to have regard to the applicant circumstances and failed to check whether there was no non-compliance from the applicant while holding his previous visa.

    4.  DIBP and MRT were absent of any consideration with respect to the applicant circumstances in accordance with the requirement.  While exercising its jurisdiction both DIBP and MRT erred in making a finding that were in direct conflict without explanation, of the reason being provided.

    5. MRT was failed to provide the instructions and directions to provide the further documents from the Applicant.

    6. Both DIBP and MRT failed to judge whether there was any non-compliance from the applicant while holding previous visa. They were unable to determine the compliance for previous visa.

    7.  The applicant seeks to be eligible for the grant of a subclass 457 Temporary Business Entry visa.

    8.  All facts and information provided are true and correct to the best of the applicant’s knowledge at the time of the application.”

15. Ground (1) of this application is simply an application for a merits review. 

16. There is nothing on the face of the record that would show any error.  Mr Kaila, the applicant, has also said that there is nothing that he can show to show that the Tribunal erred in their judgment.

17. Grounds (2), (3) and (6) are all to do with that the Tribunal did not take into account how he behaved on his previous via.  That is irrelevant.  Whether he had been very good on his visa, or very bad on his visa, really is of no interest at all to the Tribunal; it is whether the applicant satisfies the requirements of the visa for which he is applying.  Those matters are irrelevant, and there is nothing in those grounds.

18. Ground (4) talks about the delegate and the Tribunal making findings that were in direct conflict.  There was no direct conflict.  There was no conflict at all between the decisions of the delegate or the Tribunal, both in looking at the decision as to whether the nominating company was an approved employer, which is a matter that is not before me, compared with the finding that they have made with regard to the applicant’s application.  There is no conflict, and so there is no merit in ground (4).

19. Ground (5), that the Tribunal failed to provide the instructions and direction to provide the further documents from the applicant.  A perusal of the record shows that there was ample opportunity for the matters to be provided, and there was simply either a refusal or an ignoring of the requests made by the Tribunal.  The Tribunal really had no other choice but to find what it did on the evidence before it.

20. Grounds (7) and (8) are not true grounds, and I strike those out. 

21. Therefore there is absolutely no grounds upon which I could find there is a jurisdictional error. 

22. What the applicant has done today is come forward and say that he has, since the lodging of this application, been able to find employment from an approved employer.  That is, the Bhullar Trust, which on 24 July was successfully approved by the delegate for the Minister as an approved nominator.  Be that as it may, that has got nothing to do with this matter.  All I can do is review what was before the Tribunal at the time.

23. If it is that the applicant has to make another application with Bhullar Brothers Proprietary Limited as the approved nominator, then that is a totally different matter.  That is a matter for the applicant, and I am not giving any legal advice or legal direction as to what he can or should do.  The point is that such a matter is totally irrelevant. 

24. It comes nearly six months after the lodging of the application in this court, so was certainly not evidence that was before the Tribunal.

25. I dismiss the Application filed 27 February 2015 and Order that the Applicant pay costs to the First Respondent in the sum of $5,800.00.

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

Date:  12 April 2016