KANGOTRA and Ors v Minister for Home Affairs and Anor

[2018] FCCA 1553

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANGOTRA & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1553

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Business Entry (Class UC) visas – whether the Tribunal failed to perform its review function – whether the Tribunal failed to address the errors that were patent on the decision of the delegate – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 347, 362B, 379A, 476, 477.

Migration Regulations 1994 (Cth), cl. 457.223.

First Applicant: RONIKA KANGOTRA

Second Applicant: AMIT KANGOTRA

Third Applicant: RANVEER KANGOTRA

Fourth Applicant: ARSH KANGOTRA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 348 of 2018

Judgment of: Judge Street

Hearing date: 14 June 2018

Date of Last Submission: 14 June 2018

Delivered at: Sydney

Delivered on: 14 June 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The Court extends time pursuant to s 477 of the Migration Act 1958 (Cth) for commencing the proceedings up to and including 9 February 2018.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 348 of 2018

RONIKA KANGOTRA

First Applicant

AMIT KANGOTRA

Second Applicant

RANVEER KANGOTRA

Third Applicant

ARSH KANGOTRA

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal) made on 19 December 2017 affirming a decision of the delegate not to grant the first and second named applicants Temporary Business Entry (class UC) visas. The third and fourth applicants were found by the Tribunal not to be within the Tribunal’s jurisdiction.

Before this Court

1. The application in this Court was commenced on 9 February 2018. An extension of time was required under s 477 of the Act. The Court made an order extending time under s 477 of the Act.

2. The grounds of the application are as follows:

   1. After hearing but before decision the Tribunal contacted the applicant by telephone and sought from her what she proposed to do in circumstances where her registered migration agent's licence had lapsed and where neither she nor the former agent had appeared. The applicant said she was aware of the hearing date but wanted to retain her agent.

   2: Also, before decision the agent appeared to have regained his licence and notified the tribunal from which it may be reasonably implied that he was able provide representation. Notwithstanding, the tribunal seemed to have having gone to some effort to make contact after hearing but then ignored it and failed to give reasons why contrary to law.

3. The kernel of the argument advanced by Mr Newman, the solicitor on behalf of the applicants, was that the Tribunal had failed to perform its review function. Mr Newman submitted that it should be inferred that the Tribunal had not performed its review function as the Tribunal did not identify or address the errors that were patent on the decision of the delegate, in which the delegate referred to the nature of the visa being a Temporary Work Skilled visa for the position of a radiologist in respect of Better Foods Pty Limited. It is apparent that the nature of the application was one for a Temporary Business Entry (class UC) (subclass 457) visa for the position of customer service assistant manager with an employer called Darby Raj Pty Ltd. Mr Newman submitted that it should be inferred that the Tribunal had failed to correctly review the application.

4. Mr Newman accepted that the Tribunal had identified the correct provisions of the regulations, and it is apparent from the Tribunal’s decision that the Tribunal understood the nature of the application for review was one in relation to the Temporary Business Entry (class UC) (subclass 457) visa. The Tribunal correctly identified the date on which the visa was applied for. The Tribunal identified that the delegate had refused the application because the requirements of cl 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) were not met because the first named applicant was not the subject of an approved nomination.

5. There was no evidence of an approved nomination of an occupation relating to the first named applicant before the Tribunal, and the Tribunal identified that fact in its adverse findings. Following the receipt of the application for review of the delegate’s decision, the Tribunal wrote to the applicant on 3 October 2017, inviting the applicants to attend a hearing on 22 November 2017. The Tribunal’s records indicate that the applicant was sent SMS reminders in relation to the hearing on 15 November 2017 and on 21 November 2017. The Tribunal found there was no response to the hearing invitation and there was no appearance by or on behalf of the applicants on the hearing date intended for 22 November 2017. The Tribunal was satisfied the applicants were properly invited to attend a hearing in accordance with s 379A(5) of the Act. The Tribunal in the circumstances decided to make its decision on review under s 362B of the Act, without taking any further step to enable the applicants to appear before it.

6. There was no evidence before the Court to contradict the adverse finding by the Tribunal in respect of the fact that there was no nomination of an occupation relating to the first named applicant that had been approved. In those circumstances, it was open to the Tribunal to find that the first named applicant did not meet the requirements of cl 457.223(4)(a) of the Regulations. It was in those circumstances that the Tribunal affirmed the decision not to grant the first and second applicants the Temporary Business Entry (class UC) visas.

7. The second, third and fourth applicants had been included in the visa application as members of the family unit. In relation to the third and fourth applicants, the Tribunal was correct to find that it had no jurisdiction in circumstances where the third and fourth applicants were not in Australia at the time the application for review was made under s 347(2)(a) of the Act. The errors by the delegate in the delegate’s decision do not of themselves give rise to any jurisdictional error in the review by the Tribunal.

8. The review by the Tribunal on its face correctly identified the relevant visa application, and in circumstances where the applicant failed to appear at the hearing, the decision of the Tribunal to proceed to determine the matter cannot be said to lack an evident and intelligible justification and cannot be said to be an unreasonable exercise of power by the Tribunal. Mr Newman’s submission that the Court should infer that the Tribunal was making the same errors as been identified in the delegate’s decision, is not supported by any identified error in the Tribunal’s reasons.

9. There is no reference to the position of radiologist or the prospective employer Better Food Pty Limited in the Tribunal’s reasons. I do not accept that it should be inferred that the Tribunal made the same errors in determining whether or not the first applicant met the criteria under cl 457.223(4)(a) of the Regulations. Significantly, in the present case, no evidence has been pointed to that there was an approval in place at the time of the hearing before the Tribunal in respect of the entity Darby Raj Pty Limited for the position of customer service assistant manager. There is no logical basis to infer that the Tribunal made the same errors as the delegate. Accordingly, the Court does not accept the submission that the Tribunal failed to perform its duty to conduct the review. No jurisdictional error as alleged is made out.

10. Mr Newman has not taken the Court back to or developed any arguments in support of the two grounds in the application. The two grounds in the application do not make out any jurisdictional error. For the reasons given above, it is apparent that the Tribunal correctly invited the applicant to attend a hearing, and for the reasons earlier given, it was reasonable and open to the Tribunal to proceed to determine the matter in the circumstance of the present case. No jurisdictional error is made out by grounds 1 and 2 of the application.

Conclusion

1. As the application fails to make out any jurisdictional error and as the Court has not accepted that there is any jurisdictional error as contended by Mr Newman in respect of an alleged failure by the Tribunal to perform its duty to review, the application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 July 2018