Kaur v MIBP
[2017] FCCA 564
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 564 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – refusal of Regional Employer Nomination (Permanent) (Class RN) visa – whether compliance with requirement to give information orally or in writing – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 359AA, 359A, 476, 478(a) Migration Regulations 1994 (Cth), Sch.1. para.1114C(3)(d), Sch.2, cl.187.233, reg.5.19 |
| Cases cited: Dhawan v Minister for Immigration & Anor [2016] FCCA 3359 Hasan & Ors v Minister for Immigration & Anor [2016] FCCA 1049 Islam v Minister for Immigration & Anor [2016] FCCA 304 |
| Applicant: | MANPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 332 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 March 2017 |
| Date of Last Submission: | 21 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with an interpreter made available) |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 332 of 2015
| MANPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 17 July 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) to affirm a decision of a delegate (“Delegate”) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Regional Employer Nomination (Class RN) Subclass 187 visa (“Subclass 187 Visa”).
Background
The background to the Judicial Review Application is as follows:
a)on 29 May 2014 Blueshell Holdings Pty Ltd as trustee for the Hillarys Unit Trust (“Blueshell”) lodged a Regional Employer Nomination (Permanent) (Class RN) nomination application in respect of the applicant for the position of “Cafe and Restaurant Manager” at Blueshell’s Toscanini’s on Quay restaurant at Hillarys Boat Harbour (the “Employer Nomination”). That application was assigned Nomination Application ID EG05SIORB8: CB 223 and 227;
b)on 30 May 2014 the applicant applied for a Subclass 187 Visa in the “direct entry” visa application stream. The application was in respect of the nominated occupation “Cafe and Restaurant Manager’’, and included the applicant’s spouse and the applicant’s mother-in-law as secondary applicants. Under the heading “Nomination details”, the application recorded the related nomination Transaction Reference Number (“TRN”) as EG05SIORB8, being the Nomination Application ID for the Employer Nomination: CB 1-22;
c)the applicants made a number of declarations in their Subclass 187 Visa application, including relevantly:
that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.
CB 21;
d)on 3 September 2014 the Delegate decided to refuse to grant the Employer Nomination (“the Delegate’s Nomination Decision”). On the same day, the Delegate informed the applicant that, as a consequence of the Delegate’s Nomination Decision, her Subclass 187 Visa application could not be approved, and that she could withdraw her application. The Delegate further advised that if the applicant did not respond to the letter within 28 days and the application had not been withdrawn, then the Subclass 187 Visa application would be refused: CB 230 and 139-143;
e)Blueshell sought review of the Delegate’s Nomination Decision by the Tribunal: CB 259; and
f)on 22 September 2014 the applicant’s representative requested that the Delegate refuse the applicant’s Subclass 187 Visa application. Later that day the Delegate made a decision refusing to grant the applicant and her spouse and mother-in-law Subclass 187 Visas on the basis that the applicant did not satisfy the time of decision requirement in cl.187.233(3) of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) because the Minister had not approved the Employer Nomination, and the applicant’s spouse and mother-in-law as secondary applicants therefore could not satisfy the criteria for the Subclass 187 Visa (“Delegate’s Visa Decision”): CB 144 and 159-162;
g)on 26 September 2014 the applicant and her spouse and mother-in-law sought review of the Delegate’s Visa Decision by the Tribunal: CB 168-170;
h)on 10 April 2015 the applicants for review in the Tribunal were invited to appear before the Tribunal on 22 June 2015 to give evidence and present arguments relating to the issues arising in their case: CB 189-193;
i)on 22 June 2015 the applicant and her spouse appeared before the Tribunal to give evidence and present arguments at a combined hearing of the applications for review of the Delegate’s Nomination Decision and the Delegate’s Visa Decision: CB 200-202; and
j)on 26 June 2015 at 4.25pm the Tribunal affirmed the Delegate’s Nomination Decision (“Tribunal Nomination Decision”), and at 4.30pm the Tribunal affirmed the Delegate’s Visa Decision (“Tribunal Visa Decision”): CB 258-263 and 219-222. Further detail of the Tribunal Visa Decision is set out below.
Tribunal Visa Decision
In the Tribunal Visa Decision the Tribunal set out the procedural background to the application for review of the Delegate’s Visa Decision, and identified the key issue as whether the visa applicants met the criteria for grant of Subclass 187 Visas: CB 220 at [1]-[9].
The Tribunal accepted that the applicant met the requirements in cl.187.233(1), (2), (4) and (5) of Sch.2 to the Migration Regulations: CB 221 at [12] and [13]. The Tribunal then stated that it had affirmed the Delegate’s Nomination Decision on 26 June 2015, that it had put to the applicant at the hearing on 22 June 2015 that without an approved appointment she and the other Subclass 187 Visa applicants would not meet the essential criteria to satisfy cl.187.233 of Sch.2 to the Migration Regulations, and that the applicant told the Tribunal that they understood and accepted that in those circumstances their Subclass 187 Visa applications could not be successful: CB 221 at [14]-[15].
The Tribunal then stated that it was satisfied that the position of Cafe and Restaurant Manager was the subject of the relevant Employer Nomination application for the purposes of reg.5.19 of the Migration Regulations, but that there was no evidence before it that the Employer Nomination was approved so as to satisfy the requirement of cl.187.233(3) of Sch.2 to the Migration Regulations. The Tribunal therefore found that cl.187.233(3) of Sch.2 to the Migration Regulations was not satisfied, and that cl.187.233 was therefore not met overall: CB 221 at [16]-[17]. The Tribunal also found that no claims had been made in respect of the other Subclass 187 Visa streams, and affirmed the Delegate’s Visa Decision: CB 221-222 at [18] and [19].
Grounds of the Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The Tribunal made a point under section 5.19(4)(f) that nominator got a fine of $40000 which comes under adverse information but section 5.19(4)(f) also says that it is reasonable to disregard the adverse information. The Municipal city of Joondalup fined the business but that was cleared by the nominator and council check the premises of the business on regularly basis and there was no objection after that and business was running successfully. So I think it was unfair to refuse the application on this basis.
2. The Tribunal also mentions the regulation 5.19(4)(g) that the application has a satisfactory record of compliance with the laws of the commonwealth. The Tribunal mention about the monitoring department in adverse information regarding 457 visa's and employer having issues with the wages of three employees but as a nominee i was not involved in that case and my employer rectified the situation and monitoring department did not put any sanctions on my employer. So i think this is unfair to refuse my nomination on this basis.
(Transcribed from original without amendment).
Consideration
The Tribunal Visa Decision can only be set aside by the Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76]-[78] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
The grounds of Judicial Review Application do not:
a)allege jurisdictional error in the Tribunal Visa Decision; or
b)challenge the Tribunal’s key finding that there was no evidence before it that Employer Nomination was approved at the time of its decision so as to satisfy cl.187.233(3) of Sch.2 to the Migration Regulations.
The conclusion in the Tribunal Visa Decision at CB 221 at [16] and [17] that there was no evidence before the Tribunal that the Employer Nomination had been approved, that the nomination of the position to which the application relates was not approved, and therefore that as cl.187.233(3) of Sch.2 to the Migration Regulations was not satisfied, and that cl.187.233 of Sch.2 to the Migration Regulations was therefore not met overall, was therefore correct. The Tribunal Visa Decision to affirm the Delegate’s Visa Decision not to grant a Subclass 187 Visa to the applicant was the only decision legally open to the Tribunal and does not involve jurisdictional error: there are many prior decisions of this Court to this effect, including Uddin v Minister for Immigration & Anor [2015] FCCA 1591 at [9] per Judge Street; Islam v Minister for Immigration & Anor [2016] FCCA 304 at [6] and [11] per Judge Street; Hasan & Ors v Minister for Immigration & Anor [2016] FCCA 1049 at [22] per Judge Smith (“Hasan”); Yeap v Minister for Immigration & Anor [2016] FCCA 1173 at [14] and [17] per Judge Heffernan (“Yeap”); Wadhwa v Minister for Immigration & Anor [2015] FCCA 1409 at [10]-[11] per Judge Lucev; Dogra v Minister for Immigration & Anor [2016] FCCA 1936 at [19]-[20] per Judge Lucev.
The grounds of the Judicial Review Application seek to contest the merits of the Tribunal Nomination Decision to affirm the Delegate’s Nomination Decision. The concluding statements in each ground relate to each aspect of the reasoning of the Tribunal Nomination Decision for affirming the Delegate’s Nomination Decision referred to, namely that the applicant thinks that:
a)“it was unfair to refuse the application on this basis”; and
b)“this is unfair to refuse my nomination on this basis.”
These grounds cannot succeed. The merits of the Tribunal Nomination Decision to affirm the Delegate’s Nomination Decision have no relevance as to whether the Tribunal Visa Decision to affirm the Delegate’s Visa Decision is affected by jurisdictional error. The Tribunal Nomination Decision to affirm the Delegate’s Nomination Decision is not the decision which the applicant seeks to have reviewed by this Court, and the applicant has no standing to challenge the Tribunal Nomination Decision in this Court because the applicant was not the applicant in the Tribunal Nomination Decision: Migration Act, s.478(a); Yeap at [14] and [18] per Judge Heffernan.
No jurisdictional error is established in the Tribunal Visa Decision by the grounds of the Judicial Review Application.
Additional issue not raised in the application
The Minister has raised an issue not raised by the grounds of Judicial Review Application, namely whether the Tribunal may have failed to comply with either s.359AA or s.359A of the Migration Act. Sections 359AA and 359A provide as follows:
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) …
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies-by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) …
In the Tribunal Decision at CB 221 at [15] the Tribunal notes that:
a)it was put to the applicant at the Tribunal hearing on 22 June 2015 that without an approved appointment she and the other Subclass 187 Visa applicants would not be able to meet the essential criteria to satisfy cl.187.233 of Sch.2 to the Migration Regulations for the grant of the Subclass 187 Visas, and on that basis they would be unsuccessful; and
b)the applicants had said that they understood and accepted that in those circumstances, their Subclass 187 Visa applications would not be successful.
The Tribunal Nomination Decision could arguably be considered information of the type described in s.359A(1)(a) of the Migration Act, being information that the Tribunal considered would be the reason for affirming the decision under review, namely the Delegate’s Visa Decision: CB 221 at [16] and [17]. If the fact that the Tribunal affirmed the Delegate’s Nomination Decision constitutes “information” for the purposes of s.359A of the Migration Act, then the Tribunal did not comply with the requirements of s.359A(1) of the Migration Act in relation to the Tribunal Visa Decision to affirm the Delegate’s Visa Decision. That is because prior to making the Tribunal Visa Decision it did not advise the applicant that it had made the Tribunal Nomination Decision affirming the Delegate’s Nomination Decision, and did not explain the relevance of the Tribunal Nomination Decision or invite the applicant to comment on or respond to it.
Section 359A(3) of the Migration Act provides that the Tribunal is not obliged to comply with s.359A(1) of the Migration Act if it gives clear particulars of the information to the applicant, and invites comments or a response, under s.359AA of the Migration Act. It is possible that the Tribunal may not have complied with the requirements of s.359AA(1)(b)(ii) and (iii) of the Migration Act in relation to the possibility of it making the Tribunal Nomination Decision to affirm the Delegate’s Nomination Decision.
There is no evidence before the Court showing that the Tribunal did not comply with the requirements of s.359AA(1)(b)(ii) and (iii) of the Migration Act. The applicant apparently acknowledged at the Tribunal hearing that she and the other Subclass 187 Visa applicants understood and accepted that without an approved nomination their Subclass 187 Visa applications would not be successful: CB 221 at [15].
The Tribunal Visa Decision will only involve jurisdictional error if it involves an error of such a kind that the Tribunal’s exercise or purported exercise of power is thereby affected: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] and [84] per McHugh, Gummow and Hayne JJ.
The Tribunal was correct to conclude that the applicant could not satisfy the requirement in cl.187.233(3) of Sch.2 to the Migration Regulations at the time of the Tribunal Visa Decision. There was at that time no approved Employer Nomination, the Tribunal Nomination Decision having earlier affirmed the Delegate’s Nomination Decision. Having determined that the Delegate’s Nomination Decision should be affirmed, the Tribunal was legally required to affirm the Delegate’s Visa Decision because cl.187.233(3) of Sch.2 to the Migration Regulations meant that it was not open to the Tribunal to find otherwise. The inevitable outcome was based on the Subclass 187 Visa application being contingent upon there being an approved Employer Nomination, as was required by cl.187.233(3) of Sch.2 to the Migration Regulations. Therefore, the failure by the Tribunal to notify the applicant under s.359A(1) of the Migration Act that it had made the Tribunal Nomination Decision affirming the Delegate’s Nomination Decision could not, and did not, affect the Tribunal’s exercise of power in affirming the Delegate’s Visa Decision. The Tribunal Visa Decision to affirm the Delegate’s Visa Decision did not therefore involve jurisdictional error. Likewise, any failure by the Tribunal to comply with s.359AA(1)(b)(ii) and (iii) of the Migration Act does not lead to jurisdictional error, as the Tribunal Visa Decision to affirm the Delegate’s Visa Decision was the only decision legally open to the Tribunal where the Employer Nomination had been refused by the Delegate, and the Delegate’s Nomination Decision had been affirmed in the Tribunal Nomination Decision.
The Tribunal Visa Decision did not involve jurisdictional error and was correct, notwithstanding any non-compliance with ss.359AA(1)(b)(ii) or (iii) or 359A(1) of the Migration Act.
Futility of granting relief
Clause 187.233 of Sch.2 to the Migration Regulations (as at 30 May 2014) provided that:
(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.
Paragraph 1114C(3)(d) of Sch.1 to the Migration Regulations in relation to Subclass 187 Visas relevantly requires that:
(d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i) under regulation 5.19; or
(ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.
The declaration required by para.1114C(3)(d) of Sch.1 to the Migration Regulations in the applicant’s Subclass 187 Visa application in relation to the position to which the application relates, was made in relation to Blueshell’s 29 May 2014 nomination application: Nomination TRN EG05SIORB8 is listed by the applicant at page 1 of her Subclass 187 Visa application: CB 1, and the Delegate’s Nomination Decision refers to Blueshell’s Nomination Application ID EG05SIORB8, and lists the nominated person as the applicant: CB 223. There is nothing to indicate that:
a)Blueshell has sought judicial review of the Tribunal Nomination Decision to affirm the Delegate’s Nomination Decision;
b)the applicant has been the subject of a further nomination application by Blueshell; or
c)the applicant would be able to secure a further nomination from Blueshell in respect of the position identified in Blueshell’s 29 May 2014 nomination application.
Even if the applicant were able to obtain a further nomination from Blueshell in respect of the position identified in Blueshell’s 29 May 2014 nomination application a further difficulty faces the applicant. On a proper construction of para.1114C(3)(d) of Sch.1 to the Migration Regulations and cl.187.233(1)(b) of Sch.2 to the Migration Regulations, the declaration in the applicant’s Subclass 187 Visa application in relation to the position to which the application relates was required to have been made in relation to a nomination by Blueshell for that position which was in existence at the time of the declaration. The declaration required by para.1114C(3)(d) of Sch.1 to the Migration Regulations cannot be made in relation to a position nominated by Blueshell or any other employer in any future nomination application. Thus, if this matter was to be remitted to the Tribunal it would remain the case that Blueshell’s nomination application the subject of the applicant’s declaration in her Subclass 187 Visa application has not been approved, and the applicant cannot meet the mandatory requirements in cl.187.233(3) of Sch.2 to the Migration Regulations: Hasan at [13]-[14] per Judge Smith. In Hasan at [15] per Judge Smith the Court observed that the Tribunal had explained in its reasons for decision that:
… it had taken that course because the relevant position [the position to which Mr Hasan’s Subclass 187 visa application related] had to be one that was in the visa application, and so the later nomination could not help the applicants satisfy the criteria for the grant of the visa.
In dismissing the application in Hasan at [22] per Judge Smith, the Court noted that:
a)the reason for the Tribunal decision was that the nomination made by the employer (whose application for nomination of a position was referred to in the subclass 187 visa application) was not approved; and
b)the consequence of that was, as the Tribunal had concluded, that the applicant did not satisfy cl.187.233 of Sch.2 to the Migration Regulations,
and the Court therefore concluded (at [22] per Judge Smith) that:
It was not possible for the applicant to do so by relying on the later application for approval because that was not in the visa application: sub-cl 187.233(1)(b). For that reason the Tribunal’s decision was not affected by jurisdictional error and the application must be dismissed.
Even if any failure by the Tribunal to comply with s.359AA or s.359A of the Migration Act did result in the Tribunal Visa Decision to affirm the Delegate’s Visa Decision being affected by jurisdictional error, it would be futile for the Court to award relief in these proceedings as the Tribunal’s future remittal decision on review of the Delegate’s Visa Decision would necessarily be the same as the Tribunal Visa Decision. It follows that relief should be refused on the basis of its futility or lack of utility: Dhawan v Minister for Immigration & Anor [2016] FCCA 3359 at [20] per Judge Lucev; SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J.
Applicant’s oral submissions
The applicant did not file any affidavits or written submissions prior to the hearing of the Judicial Review Application. An initial affidavit filed with the Judicial Review Application did not address any matters of relevance. An order had been made by a Registrar of the Court on 30 September 2015 permitting the applicant to file further affidavits by 25 November 2015 and an outline of submissions 42 days before hearing. On 2 November 2015, by consent, the Court extended the time for filing of the applicant’s further affidavits to 9 December 2015.
At hearing the applicant submitted orally that others in a similar position to her had not had their visa applications refused. In the absence of any evidence it is impossible for the Court to make any finding on the applicant’s assertion, but in any event such evidence would not have assisted the applicant because, for reasons set out above, she did not meet the criteria under cl.187.233 of Sch.2 to the Migration Regulations, and no decision other than to affirm the Delegate’s Visa Decision was legally open to the Tribunal: see [9] above and the authorities there cited.
Conclusion and orders
The Court has concluded that for the reasons set out above, the Tribunal Visa Decision does not involve jurisdictional error. Further, or alternatively, relief should be refused on the basis of futility, as upon remittal the Tribunal would be bound to again affirm the Delegate’s Visa Decision not to grant the applicant a Subclass 187 Visa. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 March 2017
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