Kaur v Minister for Immigration

[2014] FCCA 2321

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2321

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – application for employer nomination visa – applicant has failed to satisfy criterion attaching to grant of visa – privative clause decision – no error of law disclosed – no jurisdiction error established – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), ss.359A; 362B; 474; 476(1)

Plaintiff 157/2002 (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163

Applicant: JATINDERJEET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 126 of 2014

Judgment of: Judge Brown

Hearing date: 2 October 2014

Date of Last Submission: 2 October 2014

Delivered at: Adelaide

Delivered on: 10 October 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Shepherd

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 15 April 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 126 of 2014

JATINDERJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, in these proceedings, seeks to review a decision of the Migration Review Tribunal “the MRT” affirming an earlier decision of the Delegate of the Minister for Immigration & Border Protection not to grant her and members of her family Employer Nomination (Residence) (Class BW) Visas pursuant to the provisions of the Migration Act 1958 (Cth).

2. Mrs Jatinderjeet Kaur “the primary applicant” is a citizen of India.  On 20 June 2012, she applied for the visa in question.  Mr Satnam Singh is her husband.  Ms Navneet Kaur Gill is their four year old daughter.  They too are citizens of India.  If the primary visa is granted, Mr Singh and Miss Gill will be, in turn, granted visas. 

3. The primary applicant was engaged in tertiary studies, in Australia, between March 2010 and March 2012.  She has a certificate in horticulture; a certificate in business; and a diploma in management; all conferred by Australia Adelaide International College. 

4. In support of her application for an employer nominated visa, the primary applicant indicated that she had been offered a position, as farm operations coordinator, by Huynh Tan Co and Thi My Dung Ma.  The occupation relevant to this job was project or program administrator. 

5. In support of the visa application, Ms Ma, the employer nominated under the regional sponsored migration scheme, completed a nomination form, in respect of the primary applicant, which indicated that she had been offered the position in question. 

6. On 9 August 2013, a Delegate of the Minister wrote to the primary applicant in the following terms:

   “The nomination submitted to the department by Huynh Tan Co and Thi My Dung Ma listing you as their Nominee has been refused.  Unfortunately this means that your visa application cannot be approved.  There are two options you can now take in relation to this decision:”[1]

   [1]  See Case Book at page 39

7. These options were to either withdraw the application or let it proceed to formal refusal.  The significance of the latter course being that it preserved appeal rights to the MRT.

8. On 9 September 2013, the Minister’s Delegate declined to grant the visa sought by the primary applicant.  The basis for this refusal was that the nomination of the primary applicant’s prospective employers had been refused on 9 August 2013 and therefore Mrs Kaur did not satisfy the criteria for approval of the visa in question. 

9. As neither Mr Singh nor Miss Gill had applied for any other visas, other than those relating to being members of Mrs Kaur’s family unit, their applications for visas were also refused. 

10. On 27 September 2013, the primary applicant applied to the MRT for a review of this decision.  On 9 January 2014, the MRT invited Mrs Kaur and Mr Singh to appear before it to give evidence and put any arguments in support of their review application.  The date of the hearing nominated, for this purpose, was 26 February 2014. 

11. On 26 February 2014, the primary applicant’s representative sent an email to the Tribunal indicating that the applicant was unwell and would be unable to attend the hearing scheduled.  A medical certificate was provided, in generic terms, which indicated Mrs Kaur was “not fit for work from 25/02/2014 to 26/02/2014 inclusive.”  No more detailed diagnosis of the illness was provided. 

12. The applicant did not attend the hearing scheduled for 26 February 2014.  On the following day, a tribunal officer wrote to the applicants, in the following terms:

    “Your sponsoring employer Huynh Tan Co and Thi My Dung Ma applied to the tribunal for a review of the delegate’s decision to refuse the approval of the nominated position of program or project administrator.  On 26 February 2014 the tribunal affirmed the decision, finding the employer nomination was not approved.

    This information is relevant because in order for you to satisfy cl.857.221, an essential criterion for the grant of the visa, the nominated appointment made at time of visa application must be approved at time of decision.  This information would lead the tribunal to find the appointment has not been approved and you cannot satisfy cl.857.221.”[2]

    [2]  See Case Book at page 65

13. The primary applicant was invited to respond in writing to this situation.  Essentially, the applicant was asked to respond to a situation, which effectively rendered her application futile, as her potential employer’s nomination had not been granted. 

14. The applicant responded to this invitation by way of a letter dated 10 March 2014.   She submitted that she was able to discharge the responsibilities of a program and project administrator for her nominated employers.  However, she did not specifically address the issue arising from the rejection, by the department, of Mr Co and Ms Ma’s employer nomination. 

The Tribunal’s decision

1. Pursuant to section 362B of the Migration Act, the Tribunal elected to determine the application in the absence of the applicant, given that she had failed to attend the hearing scheduled for 26 February 2014.  The section in question reads as follows:

   “362B Failure of applicant to appear before Tribunal

   (1) If the applicant:

   (a) is invited under section 360 to appear before the Tribunal; and

   (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”

2. However, the Tribunal provided the applicant with an opportunity to comment on information, which was adverse to her application, namely the rejection of her nominated employer’s application. 

3. This obligation was incumbent on the Tribunal as a consequence of the provisions contained in section 359A of the Migration Act, which requires the Tribunal to provide an applicant with an opportunity to comment on adverse information. 

4. Thereafter, on 18 March 2014, the Tribunal proceeded to make a decision.  The Tribunal made the following findings:

   “Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn.  The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the applicant.

   The nomination of the application was refused by the delegate on 9 August 2013.  The employer applied to the Tribunal for a review of that decision.  On 26 February the Tribunal affirmed the decision, finding the nomination was not approved.

   As the applicants had not attended their hearing, the Tribunal wrote to them on 27 February 2014 pursuant to s.359A putting to them the adverse information that the nomination was not approved.  On 21 March 2014 the applicants responded.  The primary visa applicant stated that in her view the nomination should have been approved.

   The Tribunal finds that at date of decision the appointment in the business of the employer for which the applicant has been nominated has not been approved.  As the appointment mention in cl.857.213(1a) has not been approved, cl.857.221 is not met.

   The applicant has only sought to satisfy the criteria for a Subclass 857 visa.  No claims have been made in respect of the other visa in the class.  As the applicant has not met the criteria for a Subclass 857 visa, the decision under review must be affirmed.  As the primary visa applicant has not met essential criteria for the grant of the visa, it follows the secondary applicants cannot meet essential criteria as members of her family unit.”[3]

   [3]  See Case Book at page 72

5. Accordingly, the Tribunal affirmed the decision of the Minister’s delegate not to grant each of the applicants the relevant visas. 

The current application

1. The primary applicant commenced these proceedings on 15 April 2014.  She seeks an order that the relevant decision of the MRT be quashed.  The applicant has provided only one ground in support of her application, which is as follows:

   “The decision dated 20 March 2013 given by Migration Review Tribunal is not agreed to.  I wish to contest this attached decision and submit my case to Federal Circuit Court.”

2. The applicant has provided an affidavit, in similar terms, in support of her application.  She has declined to provide any further submissions in support of her case. 

3. The Minister has submitted written submissions and seeks the dismissal of the application filed on 30 April 2014 and that the applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

The legal principles applicable

1. Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.

2. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.

3. The decision of the MRT, which the applicant seeks to review in this case, is such a “privative clause decision” as defined by section 474 of the Act. 

4. Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ. 

5. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[4]

   [4]  See Plaintiff 157/2002 (2003) 211 CLR 476

6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[5]

   [5]  See Craig v South Australia (1995) 184 CLR 163

7. Jurisdictional error is a complex concept.  It does not entail a merits review or a re-hearing of the facts of the case concerned.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.

Conclusions

1. I appreciate that the applicant does not agree with the respective decisions of the Minister’s delegate and thereafter the MRT.  However, this disagreement is not sufficient to ground jurisdictional error, particularly as the applicant herself has not been able to particularise any specific example of such a form of error in her application to the court. 

2. I can find no jurisdictional error in the decision of the MRT.  The MRT was required, in the exercise of the jurisdiction conferred upon it, to consider whether the applicant did or did not satisfy the mandatory condition attached to the grant of the visa for which she applied.

3. The Tribunal was not invested with any discretion to dispense with the applicable criterion.  It was a question of fact whether the applicant did or did not satisfy it.  The Tribunal addressed this issue of fact.  In my view, it could not logically have reached any other conclusion to the one it did, given the rejection of the relevant employer nomination.   

4. In any event, given this is a privative clause decision, I am not authorised to embark upon any fact finding exercise or undertake a rehearing of the matter.  The court is only able to quash the relevant decision in the event that it is tainted by jurisdictional error.

5. In addition, in my view, the record of the MRT discloses no degree of procedural unfairness being accorded to the applicant.  She was invited to give evidence before the Tribunal and subsequently to comment on the rejection of the employer nomination.

6. As the decision of the MRT discloses no jurisdictional error, it follows that the application should be dismissed.  I will make the award of cost as sought by the first respondent in the sum of $6,646.00, which is the sum specified in the fixed event schedule to the Federal Circuit Court Rules.

7. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:         10 October 2014