Kaur v Minister for Immigration

[2014] FCCA 528

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 528

Catchwords:

MIGRATION – Judicial review – Migration Review Tribunal – Employer Nomination (Residence) (Class BW) visa – Migration Regulations 1994 (Cth) – clause 856.213 – validity of application where a new employer is sought to be substituted after the time of visa application – election of nominating employer restricted to time of visa application – application dismissed – costs awarded.

Legislation:  

Migration Regulations 1994 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

First Applicant:

Second Applicant:

RAJBIR KAUR

MANJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 452 of 2013

Judgment of: Judge Burnett

Hearing date: 13 February 2014

Date of Last Submission: 13 February 2014

Delivered at: Brisbane

Delivered on: 13 February 2014

REPRESENTATION

The applicants appeared on their own behalf.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 4 June 2013 be dismissed.

2. That the Applicants pay the Respondents’ costs fixed in the sum of $7246.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 452 of 2013

RAJBIR KAUR

First Applicant

MANJOT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The applicants are citizens of India. They lodged an application for an Employer Nomination (Residence) (Class BW) visa on 23 June 2011. The first applicant, Ms Kaur, was nominated by Hot Az Pty Ltd for the position of hairdresser. On 21 March 2012, a delegate of the Minister refused to grant a visa to the applicants. They lodged an appeal for review with the Migration Review Tribunal (“the Tribunal”), and ultimately it determined the matter following hearing on 10 May 2013. The Tribunal issued its decision on 14 May 2013.  Commencing at paragraph 9, it stated:

   “9.     As explained to the applicant at the hearing the nomination by Hot Az Pty Ltd was refused by the department and that decision was the subject of an application for review before the Tribunal. Unless the nomination were set aside by the Tribunal the applicant could not meet the requirements of cl.856.221(a).

   10.    However at hearing, the applicant provided a letter from Hot Az stating that the business ceased to operate in 2012 due to family commitments and the applicant being unable to work full time because her visa was refused. The applicant also informed that she had worked in two salons in 2011, Hot Az and Sylvia’s, but she ceased working for Hot Az Pty Ltd in 2012 and had been working for the salon Sylvia’s. She informed that Sylvia’s salon wished to nominate her and have her work for them full time. The Tribunal discussed with the applicant and her agent that the review application related to her nomination by Hot Az Pty Ltd and the Tribunal could not consider any new employment with a possible new employer. The Tribunal discussed its concerns that the applicant was no longer employed by the nominating employer, Hot Az Pty Ltd and the employer had ceased business and that position was no longer available to her. 

   11.    Clause 856.213 requires that, at the time of application, the first named applicant be nominated by an employer in respect of an appointment. Clause 856.221 in turn requires that, at the time of decision, the appointment be approved and be still in force. In particular, cl.856.221(d) requires that the appointment be still available to the applicant. 

   12.    Based on the evidence given by the applicant at hearing, the Tribunal finds that the applicant has not been employed with the nominating employer, Hot Az Pty Ltd since 2012 and that the applicant’s employment ceased in 2012 and the position is no longer available to her. As a consequence of this, the Tribunal finds that the appointment is no longer available to the applicant and that she therefore does not meet the requirements of cl.856.221(d).

   13.    For the same reasons, the Tribunal is not satisfied that the appointment will provide the employment referred to in the employment nomination, being a hairdresser with Hot Az Pty Ltd. 

   14.    Accordingly the applicant does not meet the requirements of cl.856.221 or cl.856.222.

   15.    Further, in any event, as discussed at hearing (and pursuant to s.359AA procedures) the nomination was refused by the department in February 2012 and there was no evidence that any nomination in respect of the applicant had been approved. The Tribunal finds the appointment by Hot Az Pty Ltd has not been approved. Accordingly, the applicant does not meet the requirements of cl.856.221(a).”

2. The applicants seek judicial review of the Tribunal’s decision. They rely upon two grounds:

   “(1) My application was refused based on the fact that my business nominator has ceased to operate and position was no longer available to me. In making decision Tribunal Member failed to put weight on the fact that my business nominator ceased operating because of lack of availability of staff.  The main reason I was being sponsored by the local business was that my skills were needed by business to operate.  It is hard to find skilled hairdresser to work full time in local market.  Due to my visa refusal I was unable to work full time and business had to shut down due to unavailability of staff. Tribunal failed to put weight on these circumstances which were beyond my control and hence made “jurisdictional error” in its decision.
   
   (2) Cl.856.213 requires that, at the time of application. The first named applicant be nominated by an employer in respect of an appointment.  Clause 856.221 in turn requires that, at the time of decision, the appointment be approved and still in force. In particular cl.856.221(d) requires that the appointment be still available to the applicant. Cl.856.221(d) does not state that appointment which should be still available to the applicant has to be from the same employer which was mentioned at the time of visa applicant. Cl.856.221(d) is constructed in such a way that applicant should be sponsored by an nominator which is approved and at the time of decision nomination is still to applicant. I am working for new business which is ready to sponsor me. Tribunal failed to interpret cl.856.221(d) hence made a “Jurisdictional error” in its decision.”

Failure to take into Account a Relevant Consideration

1. In summary, the first complaint by the applicant is that the Tribunal failed to take into account a relevant consideration. The asserted relevant consideration is the fact that the business nominator had ceased operating owing to a lack of availability of staff. Such a consideration is not provided for in the legislation. The relevant regulations were provided for in clauses 856.213 and 856.221 of the Migration Regulations 1994 (Cth). Clause 856.213 provided:

   “Each of the following is satisfied (at the time of application): 

   (a) the applicant has been nominated by an employer, in accordance with subregulation 5.19(2), for an appointment in the business of that employer;

   (b) either:

   (i) both of the following are met:

   (A) an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;

   (B) unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or

   (ii) the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph; or

   (iii) the applicant:

   (A) holds a Subclass 418, 421, 422, 428, 444, 457 or 461 visa; and

   (B) has worked full-time in the occupation to which the appointment relates in Australia, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 2 years immediately before making the application; and

   (C) has worked full-time for the employer mentioned in paragraph (a), and in the occupation to which the appointment relates, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 1 year immediately before making the application;

   (c) either:

   (i) in the case of an applicant mentioned in subparagraph 1114A(2)(a)(iii) or (iv) of Schedule 1 – the applicant:

   (A) is less than 45 at the time of the application for a Skilled (Residence) (Class VB) visa or a Skilled (Migrant) (Class VE) visa; and

   (B) has competent English; and

   (C) has a diploma (within the meaning of subregulation 2.26A(6)) or higher qualification; or

   (ii) in any other case – unless exceptional circumstances apply, the applicant:

   (A) is less than 45; and

   (B) has vocational English.”

2. Relevantly, clause 856.221 provided:

   “The appointment mentioned in paragraph 856.213(a):

   (a) has been approved; and

   (b) has not been withdrawn; and

   (c) continues to satisfy the criteria for approval; and

   (d) is still available to the applicant.

   Note:  See regulation 5.19 for the criteria for approval of the appointment.”

3. Clause 856.222 is also relevant. It provides:

   “The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination.”

4. When regard is had to the relevant criteria, it is plain, as was contended for by the respondent, that the question for the Tribunal was simply whether the appointment was still available. The answer on the evidence was plainly in the negative. There were no other relevant matters which the Tribunal was required to consider, and accordingly it could not be said, having regard to the general test provided for in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, that there has been a failure by the Tribunal to consider a relevant consideration. This ground must necessarily fail.

Jurisdictional Error

1. The second ground contends that there was jurisdictional error because of a misconstruction by the Tribunal in respect of clause 856.221.  In particular, the applicant’s contention is that clause 856.221(d) does not state that the appointment which should be still available to the applicant is to be from the same employer mentioned at the time of the visa application. That assertion is simply incorrect. It is plain by reference to the terms of clause 856.213(a) that at the time of application the applicant has been “nominated by an employer” for “an appointment in the business of that employer.” As such, the nomination by an employer for an appointment in their business is a requirement to be strictly satisfied at the time of application. 

2. As the Tribunal concluded in its reasons, while the applicant may have had the prospect of new employment, the new employer was not the relevant nominated employer referred to in the application. Therefore, while that employer may well have been in a position to offer the first applicant employment, that was not the employer proffered at the time of application, and the prospect of that employment was not open for consideration. There was no error in the construction of the clause by the Tribunal and this ground must also fail. 

3. There being no basis demonstrated by the applicant for judicial review of the decision made by the Tribunal, the application is dismissed.

4. The applicants state that they are unable to pay the respondents’ costs.  Impecunity is not sufficient disqualification for the imposition of a costs order. There is no reason the usual order ought not be made. I will order that the applicants pay the respondents’ costs. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  18 March 2014