KAUR v Minister for Immigration

[2016] FCCA 2235

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2235

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) visa application – review of decision of Migration Review Tribunal – whether the Tribunal erred in failing to allow the first applicant further time to find alternative sponsor – whether the Tribunal erred by failing to invite the first applicant to a hearing – whether s.359 of the Migration Act 1958 (Cth) was correctly applied – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 65, 140GB, 359, 360, 363, 379

Migration Regulations 1994 (Cth), cl.457.223 of Sch.2

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

First Applicant: NAVBINDER KAUR

Second Applicant: GURBIR SINGH

Third Applicant: KIRAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 836 of 2015

Judgment of: Judge Smith

Hearing date: 11 July 2016

Date of Last Submission: 18 July 2016

Delivered at: Sydney & Melbourne

Delivered on: 2 September 2016

REPRESENTATION

The first applicant appeared in person.

Counsel for the First Respondent: Mr Wood

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 836 of 2015

NAVBINDER KAUR

First Applicant

GURBIR SINGH

Second Applicant

KIRAT SINGH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant is a citizen of India who applied for a Temporary Business Entry (Class UC) (subclass 457) visa on 8 October 2013. The second applicant is her husband and the third applicant is their son. I will refer to the first applicant as the applicant.

2. In order to obtain her visa, the applicant had to satisfy the criterion in cl.457 in sch.2 to the Migration Regulations1994 (Cth), and in particular, cl.457.223(4) which provided:

   (a)each of the following applies:

   (i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)the approval of the nomination has not ceased as provided for in regulation 2.75;

   …

3. Section 140GB of the Act provided:

   (1)An approved sponsor may nominate:

   (a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

   (i)     the applicant or proposed applicant’s proposed occupation; or

   (ii)     the program to be undertaken by the applicant or proposed applicant; or

   (iii)   the activity to be carried out by the applicant or proposed applicant; or

   (b)a proposed occupation, program or activity.

Background

1. The applicant’s sponsor was KGN 29 Group of Companies Pty Ltd (“KGN”). KGN had applied for approval of a nomination in respect of the applicant but that was refused by a delegate of the Minister on 5 May 2014. As a consequence of that decision, a delegate of the Minister found that the applicant did not satisfy cl.457.223(4) of the Regulations and so did not grant the applicant a visa. Both KGN and the applicant applied to the Migration Review Tribunal[1] for review of the respective decisions.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. On 10 March 2015, the Tribunal affirmed the decision not to approve KGN’s nomination. The Tribunal then wrote two letters to the applicant on 11 March 2015. The first requested certain information from the applicant and the second referred to the decision to affirm the non-approval of KGN’s nomination. Both letters required a response by 7 April 2015. The applicant responded on 1 April 2015 effectively asking for time to find another sponsor. I will return in more detail to the Tribunal’s letters and to the applicant’s response in due course.

3. The Tribunal did not allow the applicant any further time and did not invite her to a hearing. Rather, on 8 April 2015, it made a decision to affirm the delegate’s decision. The reason for that decision was that there was no approved nomination of an occupation relating to the applicant and therefore she did not meet the requirements of sub-cl.457.223(4)(a). The applicant now seeks judicial review of the Tribunal’s decision.

Consideration

1. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error; that is, an error that affected the proper exercise of the Tribunal’s statutory duties.

2. The grounds raised by the applicant in her application are:

   1)I am a qualified hairdresser.

   2)I have the necessary experience to be nominated as a hairdresser under subclass 457.

   3)The business nominating me was an approved standard business sponsor.

3. Those grounds do not raise any jurisdictional error. While each asserted fact may have been necessary for the applicant to be granted a visa, whether or not that was the case was a question reserved for the Minister and, on review, the Tribunal. In any event, those facts while necessary for the grant of the visa, were insufficient as the nomination also had to have been approved and it was not.

4. In her written submissions to the Court, the applicant made similar statements that, for the same reasons, did not establish any jurisdictional error in the Tribunal’s decision.

5. As the applicant was unrepresented, the Minister quite properly raised the question whether the Tribunal’s decision to refuse the applicant’s request for further time exhibited some jurisdictional error. At the hearing, further issues arose and the parties were given further time to file written submissions in respect of them.

6. There are two general issues, each of which gives rise to several other issues. The first general issue arises from the fact that the Tribunal did not invite the applicant to attend a hearing. The second general issue is that the Tribunal did not allow the applicant further time to find another sponsor.

First issue: no hearing invitation

1. Section 360(1) of the Act requires the Tribunal to invite an applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. Failure to comply with that obligation constitutes jurisdictional error; however, the obligation does not arise in a number of circumstances, including where ss.359C(1) or (2) apply to the applicant.

2. Section 359C(1) provides that, if a person is invited in writing under s.359(1) to give information and does not give the information before the time for giving the information has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.

3. Section 359C(2) is to similar effect in relation to an invitation for comment given to an applicant under s.359A.

4. Section 360(3) provides that “if any of the paragraphs in subsection(2) of this section apply, the applicant is not entitled to appear before the Tribunal”.

5. Section 363A provides that:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

6. The Tribunal explained the procedure it took in the following way:

   [6]By letter dated 11 March 2015 the tribunal invited the applicant pursuant to s.359(2) to provide information demonstrating that she was the subject of an approved business nomination that had not ceased.

   …

   [9]The applicant responded on 1 April 2015 and advised that she did not know that the nomination in relation to her was not approved, wrote of her personal circumstances, and requested more time to “find another employer who is willing to employ me”.

   [10]The tribunal considers that the applicant has not provided the information sought by the tribunal in its letter pursuant to s.359(2).

   [11]In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

   (Citation omitted)

7. The Tribunal was correct, for the reasons it gave, to say that if s.359C applied, it had no power to invite the applicant to a hearing and so made no error in failing to do so. The question is whether s.359C applied and, in particular, whether the applicant was invited to provide information under s.359(2). There are two questions here: first, whether the letter dated 11 March 2015 requested information, and secondly, whether it was “given” to the applicant in the manner required by the Act.

8. The first letter dated 11 March 2015 explained that the Tribunal required the applicant “to demonstrate that you are currently the subject of an approved nomination made by an Australian standard business sponsor”. The letter further explained that an approval only lasted 12 months, set out cl.457.223(4) and stated that if an approval had ceased the applicant would not meet that criterion. The letter then stated:

   …

   The Tribunal now invites you under s.359(2) to provide the following information in writing:

   ·Information which demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased, in accordance with cl. 457.223(4)(a).

   The information should be received by 7 April 2015.

   …

   If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

   (Emphasis in original)

9. The apparent difficulty with this invitation arises from the fact that it identifies the information sought as that which “demonstrates that a nomination … has been approved.” The difficulty arises because of the consequences of a failure by the applicant to provide the information within the required time, namely, the loss of a right to attend a hearing. Suppose, for example, that the applicant had provided some information that was relevant to the issue of approval but the Tribunal was not satisfied that this information established the approval; that would mean that the Tribunal’s view of the information, would be determinative of whether or not the applicant had the right to a hearing. Such a result would involve significant unfairness and suggest against a construction of s.359 that would allow it.

10. However, as counsel for the Minister submitted, the resolution lies in a proper understanding of the letter, bearing in mind that it is, like the reasons of the Tribunal, not to be too closely scrutinised for error. On that basis, the letter sought information that could objectively demonstrate approval of the nomination. Once the invitation is read in that way, there is no unfairness and, in my view, it was an invitation under s.359(2).

11. The second issue concerning the s.359(2) invitation is that it was sent under cover of a letter addressed as follows:

    Mrs Kamlesh Singh
    Maypal Migration
    16 Rosebank Avenue

    SOUTH CLAYTON VIC 3169

12. Those details were given to the Tribunal by the applicant as those of her representative for the purposes of the review. In light of that, the Tribunal was obliged to give any document to Mrs Singh instead of to the applicant and if it did so, the applicant was taken to have received the document: s.379G. Further, the invitation was required to be given to the applicant’s representative by one of the methods prescribed in s.379A: sub-s.359(3)(a).

13. Relevantly, s.379A(4) provided that a document could be given to a person by dating the document and then dispatching it within 3 working days of the date of the document by prepaid post to the last address for service or last residential address provided to the Tribunal by the recipient in connection with the review. It is at this point that the issue arises.

14. On 23 February 2015 the Tribunal received a letter from the applicant in the following terms:

    I want all the correspondence about my MRT decision send to me via post and email. But I don’t want to cancel my authorised recipient. So I will be thankful if you send all the correspondence to me and my immigration lawyer as well.

    (Error in original)

15. Accompanying that letter was a Change of Contact Details form giving the applicant’s residential address and email address. The form included a section for cancellation of an authorised recipient and one for cancelling a representative; however, those sections were left blank.

16. The issue is whether the address given in the Change of Contact Details form was, for the purposes of s.379A, the “last address for service” or “last residential or business address provided to the Tribunal by the recipient in connection with the review”. The short answer is that while the form contained the last address for service for the applicant, that was not the address that mattered. Once the applicant had given the Tribunal the name and address of a person authorised to receive documents, the Tribunal was required to give documents to that person. In those circumstances, the relevant inquiry for the purposes of s.379A is to ask what the last address for service given to the Tribunal for the authorised recipient was. The answer to that, is the same address as was given in the application for review, which was the address used by the Tribunal in the letters of 11 March 2015.

17. For those reasons, the Tribunal invited the applicant to give certain information by 7 April 2015, she did not give that information by that time and so s.359C applied. This meant that she was not entitled to attend a hearing to give evidence and the Tribunal had no power to invite her. Accordingly, the Tribunal did not fall into error by not inviting the applicant to a hearing.

Second issue: failure to allow further time to find nominator

1. While the Tribunal had no power to invite the applicant to a hearing, it did have the power to adjourn the review as requested by the applicant: sub-s.363(1)(b). That power had to be exercised (or not exercised) reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. In order to determine whether the Tribunal’s decision not to adjourn the proceedings was reasonable, it is necessary to consider all of the relevant circumstances, including the applicant’s request for an adjournment and the reasons given by the Tribunal for its decision.

2. The applicant’s request was in her letter to the Tribunal dated 1 April 2015 in which she relevantly stated:

   …

   I have been nominated by KGN 29 Group of Companies Pty Ltd but I was not aware that the nomination wasn’t approved. I am a qualified hairdresser and have been working with the sponsor for some time now. I feel that the sponsor should have informed me about this as I have a family to support as well and my son is in year 12 and needs all assistance he can get. He cannot handle the stress and is going through a stage of depression and we are seeking medical help.

   I would like to get some time to find another employer who is willing to employ me and provide support for my Subclass 457 Visa application.

3. The Tribunal explained why it did not grant that request as follows:

   [19]The tribunal is not minded to delay its decision to await the outcome of a search by the applicant for a business sponsor. The search proposed by the applicant appears open-ended and has no definite timeframe.

   [20]Further, the tribunal observes that if the applicant succeeds in finding an appropriate sponsor, that sponsor may seek a nomination for her and, if approved, she may again apply for a Subclass 457 visa.

4. The first of these paragraphs provides an evident justification for the Tribunal not to adjourn the review. It was open to the Tribunal to think that the request was, in effect, speculative and that there was no basis for considering that there would be any positive outcome within an identifiable time frame.

5. The second paragraph is more difficult. Section 48(1) of the Act, read with reg.2.12 of the Regulations (in force at the time of the Tribunal’s decision) prohibited a non-citizen in the migration zone who does not hold a substantive visa and, who after last entering Australia, was refused a subclass 457 visa from applying for a further subclass 457 visa.

6. The question that arises is whether the Tribunal was wrong to take into account the applicant’s ability to apply for a further visa in the event that she could find another sponsor; if so, whether that affected its decision not to adjourn the review; and further, if it did, whether that amounted to jurisdictional error.

7. The answer to the question is that the Tribunal’s statement was correct. While the applicant may not be able to apply for another subclass 457 visa while in the migration zone (that is, roughly speaking, in Australia), there was nothing preventing her from applying for another subclass 457 visa from outside the migration zone. No doubt that would be much more inconvenient to the applicant and may require her to relocate her family, even if only for a short period. However, while those are matters that might lead another decision-maker to arrive at a different decision, that is not the point. It was open to the Tribunal to reason that a negative decision from it was not the end of all hope for the applicant. In other words, taken with the Tribunal’s reasons in [19], there was a reasonable basis for the decision not to adjourn and so the Tribunal did not fall into jurisdictional error by making the decision when it did.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     2 September 2016