Kang v Minister for Immigration

[2017] FCCA 1697

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1697

Catchwords:
MIGRATION – Visa – regional employer nomination visa – natural justice – whether applicants afforded a fair hearing by Tribunal – failure to consider relevant material – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), rr.1114C(3)(d) of sch.1, 5.19(4)(h)(ii) & cl.187.233 of sch.2

First Applicant: SATINDERPAL SINGH KANG

Second Applicant: NAVJYOT KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 443 of 2016

Judgment of: Judge Heffernan

Hearing date: 9 May 2017

Date of Last Submission: 9 May 2017

Delivered at: Adelaide

Delivered on: 10 August 2017

REPRESENTATION

The Applicants: The First and Second Applicants in person

Solicitors for the Respondents: Ms Helsdon for the Australian Government Solicitors

ORDERS

1. The application dated 28 December 2016 is dismissed.

2. The applicants do forthwith pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 443 of 2016

SATINDERPAL SINGH KANG

First Applicant

NAVJYOT KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 29 November 2016.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the first applicant a Regional Employer Nomination (Class RN) (Subclass 187 – Regional Sponsored Migration Scheme) Visa (‘the visa’). 

2. There are two grounds of application as follows:

   “1.The AAT Member failed to consider all the aspects of the appeal, and observe principles of natural justice.

   PARTICULARS

   a.In considering whether the visa applicant met the visa grant criteria required by the regulations, the Tribunal Member failed to fully consider the fact that the circumstances of the case were beyond the applicant’s control.

   b.The closure of the business that had nominated the applicant was forced by government decision – compulsory acquisition by the government – relate to the new road/urban traffic infrastructure development (expansion of South Road) that were beyond even the nominating business.

   c.The visa applicant was not at fault and yet was affected by the external circumstances.

   2.The AAT Member failed to give consideration to relevant factors in the decision.

   PARTICULARS

   a.In considering whether the visa applicant met the regulation related to the visa 187 requirements, the Tribunal Member did not give sufficient weight to the circumstances beyond the applicant’s control.

   b.I (the primary applicant) have advised the Tribunal member that in the meantime I lodged a new nomination with a different employer.  The Tribunal member has initially indicated that lodging a new nomination will be of material importance to the outcome of the appeal and requested me (the applicant) to provide the relevant evidence.  The evidence was subsequently provided but not considered favourably by the Member.”

3. The applicants were self-represented before me.  The second applicant is the wife of the first applicant, and her application is dependent upon his.  On 3 February 2017, the Registrar made orders that the applicants file and serve any outline of submissions 14 days prior to the hearing.  No written outline was received.  The applicants rely on the affidavit of the first applicant, dated 28 December 2016, which annexes a copy of the Tribunal decision.  The body of the affidavit in effect amounts to the written submissions of the applicants and I will refer to them later in these reasons.

Background

1. The circumstances leading up to the Tribunal hearing are not the subject of dispute between the parties.  They have been helpfully summarised in the written submissions of the first respondent and I paraphrase them below.

2. The first applicant is a citizen of India.  He applied to the first respondent for a visa on 9 June 2015.  The second respondent was included on the visa application as a member of the first applicant’s family unit.  The visa applied for was part of the ‘Direct Entry’ stream.

3. It was necessary for the first applicant to be successfully nominated by his employer.  At about the time the first applicant filed his application for the visa, his then employer, K S Flinders Pty Ltd, trading as Kwik Stix, lodged an application for nomination.  This nomination application was refused by the first respondent on 24 March 2016. 

4. On that day, the first respondent wrote to the first applicant advising him of adverse information, namely that his employer’s nomination application had been refused and inviting him to comment.  The first applicant’s registered migration agent responded to that request on 30 March 2016.  The response informed the first respondent that the first applicant was the subject of a second nomination application from his new employer, Marie Chutney Pty Ltd trading as the Spice Kitchen (the second nomination application).  The registered migration agent asked that this second nomination application be utilised for the purpose of the first applicant’s existing visa application. 

5. A delegate of the first respondent refused to grant the visa on 10 May 2016.  The first applicant sought review of the delegate’s decision on 26 May 2016 and the first applicant attended a hearing before the Tribunal on 14 October 2016.

Tribunal decision

1. The Tribunal identified the issue before it as being whether the applicant had been subject to an approved nomination in accordance with cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).  The first applicant told the Tribunal that his employment with the employer who filed the first nomination application had been negatively affected by the South Road extension project which had caused the premises in which the building was situated to be acquired and demolished in December 2015.  Regrettably, he had been unable to obtain employment in another branch of the franchise.  He told the Tribunal that he had been advised that he could simply request his new employer to lodge a nomination application, which could be linked to his existing visa application.

2. The Tribunal concluded that at the time of his visa application, the first applicant had been the subject of a nomination application by his original employer but that this had been refused and no review of that refusal had been sought before the Tribunal. The Tribunal found that a position in the nominated business was no longer available to the first applicant, and for that reason, he did not have an approved nomination, and accordingly did not meet the requirements of cl.187.233. With respect to the second nomination application, the Tribunal found that it had not been made by the same employer who made the original nomination, and once again the first applicant could not satisfy cl.187.233 of Schedule 2 to the Regulations.

3. The Tribunal correctly noted that the criteria for a subclass 187 visa are set out in Part 187 of Schedule 2 to the Regulations. It found that for applicants in the ‘Direct Entry’ stream, cl.187.233 required that the position to which the visa application relates must be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations. Pursuant to cl.187.233, the Tribunal found that the position to which the visa application relates must be the same one that was the subject of declaration that was required to be made at the time of that visa application. It was also a necessary criterion pursuant to cl.187.233 that the person who will employ the applicant is the person who made the nomination, that the nomination has been approved and not subsequently withdrawn, and that the position was still available to the applicant.

4. Having noted that, the Tribunal found that the applicants were the subject of a nomination application at the time that they lodged their visa applications but the nomination was refused by the Department on 24 March 2016 and was not subject to review before the Tribunal.

5. For that reason, the Tribunal found that the nomination made by the original employer, Kwik Stix, had not been approved and the position was no longer available to the first applicant. This led the Tribunal to conclude that the requirements of cl.187.233 could not be met. Whilst the Tribunal noted that the new employer, Spice Kitchen, had a pending nomination, that application had not been approved and even if it had been approved, it was not made by the same employer who made the original nomination application and for that reason, the first applicant could not satisfy cl.187.233.

6. The Tribunal affirmed the decision of the delegate and found that it had no alternative but to affirm the decision with respect to the second applicant as well, because it was not possible for her to meet the secondary visa criteria on the basis of being a family member of a person who met the primary visa criteria.

Submissions of the first applicant

1. The brief oral submissions made by the first applicant before me were consistent with the matters put to the Court in his affidavit.  He complains that the circumstances leading to the failure of his first employer’s nomination application were beyond both his control and that of his first employer.  It was hardly his fault that the very premises in which he was working had been the subject of a compulsory acquisition for the purposes of a road extension project.  In his submission, this was a relevant consideration to which the Tribunal should have had regard.  Further, he says that a relevant matter to which the Tribunal should have given weight was that his new employer had already lodged a nomination application. 

Submissions of the first respondent

1. The first respondent submits that the Tribunal did indeed have regard to the applicant’s circumstances but correctly found that he did not have an approved nomination and that it was not open for them to substitute a new employer to enable him to meet the requirements of cl.187.233.

Consideration

1. In order for the first applicant’s visa application to be successful, it was necessary for the ‘position’ or job identified in his visa application to be a ‘nominated position’ in an application for approval that had been made by his prospective employer (Kwik Stix) pursuant to r.5.19(4)(h)(ii) of the Regulations.  It was necessary for the Minister to have approved that nomination.

2. It was also necessary in order to satisfy a primary criteria for the grant of the visa for the first applicant to demonstrate that the position nominated in the visa application was the same position in relation to which he made the declaration required by r.1114C(3)(d) of Schedule 1 to the Regulations.[1]

   [1] Cl.187.223(1)(a), Schedule 2 of the Regulations.

3. Clause 187.233 of Schedule 2 to the Regulations provides as follows:

   “(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:

   (i)     subparagraph 5.19(4)(h)(ii); or

   (ii)     subregulation 5.19(4) as in force before 1 July 2012; and

   (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)The person who will employ the applicant is the person who was the nominator in the application for approval.

   (3)The Minister has approved the nomination.

   (4)The nomination has not subsequently been withdrawn.

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

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

4. I am not satisfied that the Tribunal failed to consider all aspects of the review before it as presented by the first applicant or that it failed to observe the principles of natural justice. The applicants were given an opportunity to attend and give evidence and make arguments in support of the review. The first applicant explained in some detail the reason for his original job no longer being available and pointed out quite reasonably, that that was through no fault of his or his former employer. I am satisfied that the Tribunal did take into account the submissions made by the first applicant that the matters he referred to were beyond his control, but I can find no error in the conclusion reached by the Tribunal that the matters put to it by the first applicant did not assist him in satisfying cl.187.233.

5. Similarly, I am satisfied that the Tribunal did give consideration to the submission made by the first applicant that his new employer had lodged the second nomination application.  Once again, however, that did not assist the first applicant in satisfying the criteria for the reasons I have identified above.  The Kwik Stix nomination was not approved by the Minister.  The Kwik Stix position was the one in relation to which the visa application had been made.  For the visa application to be successful, the Kwik Stix position had to have been approved by the Minister.  It was not open to the Tribunal to rely on the second nomination application made by Marie Chutney Pty Ltd.

6. In addition to the opportunity to attend at the hearing, the Tribunal invited the first applicant to make further written submissions should he choose to do so.  The first applicant did not take the Tribunal up on this offer, but it was clearly open to him to make further submissions if he thought that would assist his case.

7. I am satisfied that the Tribunal complied with its obligation to conduct a hearing and that it considered all that was put to it by the first applicant.  It correctly identified the issues before it and the relevant regulations and its application of the regulations to the facts of this matter was unexceptionable.  I can find no error in the approach taken by the Tribunal, or the conclusion that it reached.  This is deeply regrettable for the applicants as the first applicant has clearly done nothing negligent or deliberate that would have prevented him from satisfying the relevant criterion.

8. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 10 August 2017