KAUR v Minister for Immigration
[2017] FCCA 3169
•30 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3169 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Regional Employer Nomination Permanent (Class RN) (Subclass 187) visa – application without merit – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.259, 359, 359A, 359C, 360. Migration Regulations 1994 (Cth), sch.2, cls. 187.233, 187.311. |
| Cases cited: Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. Manna v Minister for Immigration and Citizenship [2012] FMCA 28. Singh vMinister for Immigration and Border Protection [2014] FCCA 1403. |
| First Applicant: | SUKHNEET KAUR |
| Second Applicant: | HARDEEP SINGH |
| Third Applicant: | EVNEET KAUR |
| Fourth Applicant: | SIMRAT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1026 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 30 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the First Respondent: | Mr Young |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1026 of 2016
| SUKHNEET KAUR |
First Applicant
| HARDEEP SINGH |
Second Applicant
| EVNEET KAUR |
Third Applicant
| SIMRAT KAUR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
By their application filed 15 May 2016, the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 29 April 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants a Regional Employer Nomination Permanent (Class RN) (Subclass 187) visa (‘the visa’).
The grounds of application are as follows:-
“1. The decision of the Tribunal is affected by jurisdictional error for the following reasons;
(i) I was not given a chance to attend the hearing at the Tribunal.
(ii) The Tribunal failed to take into account my employment with Leonti Investments Pty Ltd for a continuous period from July 2014 to March 2015.
(iii) The Tribunal did not give me time to lodge new sponsorship of my new employment after my employment with Leonti Investments Pty Ltd.”
The Respondent, by response filed 2 June 2016, seeks that the application be dismissed and that costs follow that event.
On 26 October 2016 Registrar Buljan made orders by consent including that the Applicants file and serve any amended application, including any additional grounds of review with complete particulars of each ground, and written submissions. The Applicants have not amended their application filed, nor were any written submissions relied upon by the Applicants.
There is before the Court the First Respondent’s written submissions dated 20 December 2016 and the evidence as contained in the Court Book.
This application is unmeritorious and shall be dismissed for the following reasons.
Consideration
This background is as adopted from the First Respondent’s written submissions.
Background
On 17 July 2014 the First Applicant (‘the Applicant’) applied to the Department of Immigration and Border Protection (‘the Department’) for the visa. The Second, Third and Fourth Applicants were included in the visa application as members of a family unit.
The application for the visa was sought by the Applicant in the “direct-entry stream” to work in the nominated position of “pastry cook” with the sponsor Leonti Investments Pty Ltd (‘the nominator’).
In order to be granted the visa, the Applicant had to meet a range of criteria, which included cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly cl.187.223 required 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
(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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 made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(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.”
On 19 February 2015 the Department wrote to the Applicant via email sent to her appointed representative, inviting her to comment on adverse information before it, being that the nominator’s application for approval of a position under the direct-entry stream in respect of the Applicant had been refused. No response was received by the Department.
On 24 March 2015 the delegate refused to grant the visa, as the Applicant did not meet the criterion in cl.187.233 of Schedule 2 to the Regulations. The nominator’s application for a nomination had been refused.
On 2 April 2015 the Applicants applied to the Tribunal for review of the delegate’s decision. The Applicants retained the same migration agent as before the Department to represent them and provided a copy of the delegate’s decision with the application for review.
On 12 April 2016, the Tribunal wrote to the Applicants via their representative at the email address provided in the application and pursuant to ss.359A and 259(2) of the Migration Act 1958 (Cth), (‘the Act’) inviting them to comment and/or provide information in relation to information the Tribunal had received. That information was that on 8 April 2016 a differently constituted Tribunal had affirmed a decision of a delegate of the First Respondent to refuse the approval of the related nomination application made by the nominator for the position to which the Applicant was proposed to be employed. The Tribunal’s letter indicated that, if comment or information was not received by 26 April 2016, the Tribunal may make a decision without taking any further action to enable the Applicants to appear before it and that the Applicants would lose their entitlement to appear before the Tribunal to give evidence and present arguments.
No response was received from the Applicants by the Tribunal.
On 29 April 2016 the Tribunal made a decision affirming the decision under review.
The Tribunal decision
The Tribunal correctly set out in paragraph 14 of its Statement of Decision and Reasons (‘the Decision Record) that the issue before it was whether there was an approved nominated position in respect of the Applicant.
The Tribunal found the application for approval of the nominated position that related to the Applicant made by her sponsoring employer, Leonti Investments Pty Ltd, was refused by the Department on 8 December 2014. That decision was affirmed on review by the Tribunal on 8 April 2016. The Applicant produced no evidence before the Tribunal that there was any approved appointment concerning her made by Leonti Investments Pty Ltd.
Therefore, on the evidence before it the Tribunal was not satisfied at the time of its decision that there was an approved nominated position in relation to the Applicant[1] The Tribunal concluded thus that cl.187.233 was not met.
[1] Migration Regulations 1994 (Cth) cl.187.233(3)
The Tribunal noted that there was no claim or any evidence before the Tribunal that the remaining Applicants met the primary criteria for the grant of the visa. In addition, to meet cl.187.311, the secondary Applicants had to be members of the family unit of a person who, having satisfied the primary criteria, was the holder of a subclass 187 visa. As the Applicant did not satisfy the primary criteria for a subclass 187 visa, or any other subclass, the Tribunal found that the secondary Applicants also did not satisfy cl.187.311, and therefore the criteria for a subclass 187 visas or any other subclass.
The Tribunal determined to affirm the decision not to grant the Applicants Regional Employer Nomination (Permanent) (Class RN) visas.
The Tribunal, did in the course of considering the Applicant’s application, as noted in paragraph 10 of the Decision Record, consider whether it should adjourn the review to allow the Applicants additional time in which to provide further evidence to support their review application. The Tribunal, however, took into account the directions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the courts had held that the Tribunal was not required to indefinitely defer its decision-making processes. The Tribunal also noted that the Applicants had the benefit of representation from a registered migration agent, who, it was reasonable to expect, had an understanding of the requirements of the legislation. The Tribunal noted that neither the Applicants nor their representative had provided the requested comment or response sought by the Tribunal within the prescribed period set for that purpose. Accordingly, the Tribunal determined not to exercise its discretion to adjourn the review any further to allow the Applicants more time in which to demonstrate that the Applicant met the requirements of cl.187.233(3) for the purposes of her subclass 187 visa application.
Conclusion
The grounds of review as set out in the Applicant’s application do not raise an arguable case or identify a jurisdictional error in the Tribunal decision.
The Applicant was invited by the Tribunal pursuant to ss.359A and 359(2) of the Act to comment on adverse information and provide information to the Tribunal. The Tribunal specifically sought the Applicant’s comment on information before it that she was not subject to an approved nomination by the sponsor. The Tribunal’s invitation to the Applicant complied with the legislative requirements set out in the Act. The Applicant did not respond to the invitation prior to the expiry of the prescribed period or at all. In those circumstances s.359C(1) and (2) of the Act applied, and the Tribunal was permitted to make a decision on the review without taking any further action to obtain the information or the Applicant’s comment or response. Further, as submitted by the First Respondent, as ss. 359C(1) and (2) applied to the Applicants, s.360(3) provided that in such circumstances the Applicants were not entitled to appear before the Tribunal. That is, the Applicant’s failure to respond to the s.359A invitation precluded the Tribunal from offering the Applicants a hearing.[2]
[2] Singh vMinister for Immigration and Border Protection [2014] FCCA 1403, 32-39.
There was no error on the part of the Tribunal in proceeding as it did.
In respect of the second ground as set out in the application, no error arises on the part of the Tribunal by failing to identify that ground in its decision. The issue for the Tribunal was whether at the time of its decision, on 29 April 2016, there was an approved nomination in place in respect of the visa application. The ground has no merit.
The third ground as set out in the Applicant’s application also cannot succeed. The Tribunal was correct to say that it was not required to indefinitely defer its decision-making process, and in the circumstances, the First Respondent’s submissions that the Tribunal’s actions were not unreasonable, is accepted by the Court.
The application will be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 14 December 2017
3
3