Kaur v Minister for Immigration

[2020] FCCA 2539

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2539

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a regional employment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

First Applicant: TARANDEEP KAUR

Second Applicant: HARINAM SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 153 of 2020

Judgment of: Judge Driver

Hearing date: 28 August 2020

Delivered at: Sydney

Delivered on: 28 August 2020

REPRESENTATION

The First Applicant appeared in person by telephone

Solicitors for the Respondents: Mr A Bicknell of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 153 of 2020

TARANDEEP KAUR

First Applicant

HARINAM SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Ms Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 18 December 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant’s regional employer nomination visas.  There are two applicants, who are Ms Kaur and her partner, Mr Singh.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 12 August 2020, which I adopt.

2. The applicants are citizens of India. On 29 August 2016, Ms Kaur applied for the visa in the direct entry stream in relation to the nominated position of “office manager”.[1]  Included in this application as a migrating family member was Mr Singh, who is the second applicant in this proceeding.

   [1] Court Book (CB) 16–104

3. On 2 August 2018, the delegate refused the associated nomination lodged by the nominating company, Rizq Pty Ltd (the nominating employer) (the employer nomination decision).[2]  On the same day, the delegate wrote to Ms Kaur to inform her of this refusal, and invited her to respond to this information within 28 days.[3]

   [2] see Annexure APD2 to the affidavit of Adrian Patrick Downie affirmed on 29 June 2020 (the Downie affidavit)

   [3] CB 109–113

4. On 14 August 2018, the nominating employer made an application to the Tribunal for review of the employer nomination decision.[4]

   [4] CB 157

5. On 5 October 2018, the delegate refused to grant the visa because Ms Kaur did not meet clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because the associated nomination had been refused and, therefore, there was no approved nomination.[5]

   [5] CB 114–124

6. On 10 October 2018, Ms Kaur applied to the Tribunal for review of the delegate's decision.[6]

   [6] CB 125–131

7. On 15 October 2019, the nominating employer withdrew its review application and the Tribunal accepted the withdrawal on 8 November 2019.[7]

   [7] see Annexure APD2 to the Downie affidavit

8. On 25 November 2019, the Tribunal invited Ms Kaur to appear before it by telephone at a hearing scheduled for 18 December 2019 (the invitation letter).[8]

   [8] CB 142–153

9. On 29 November 2019, the Tribunal wrote to Ms Kaur inviting her to comment on or respond to information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review (the s.359A letter).[9]  That information was that Ms Kaur was not subject of an approved nomination, and although the nominating employer had applied for review of the employer nomination decision, this application had been withdrawn.

   [9] CB 154–157

10. On 18 December 2019, Ms Kaur attended a hearing before the Tribunal by telephone.[10] On the same day, the Tribunal made its decision to affirm the delegate's decision not to grant the visa. On 19 December 2019, the Tribunal wrote to the applicants to inform them of the decision.[11]

    [10] CB 177–179

    [11] CB 180–189

Tribunal decision

1. The Tribunal summarised the procedural background of the application,[12] and outlined the requirements of clause 187.233 of the Regulations, which formed the basis of the delegate's decision.[13]

   [12] CB 186, [1]–[7]

   [13] CB 186–187, [10], [12]–[15]

2. The Tribunal noted that on 29 November 2019 it wrote to Ms Kaur, by way of a s.359A letter, and outlined the information it considered would form part or all of the reason to affirm the decision under review.[14]

   [14] CB 187, [16]

3. The Tribunal recorded that it explained to Ms Kaur at the hearing that the nominating employer had withdrawn its review application related to the employer nomination decision, and reminded Ms Kaur that the criteria for the visa could not be met in the absence of an approved nomination.[15]  Although Ms Kaur asserted an expectation that the nominating employer would employ her once her visa was approved, the Tribunal reiterated Ms Kaur’s inability to meet the visa criteria in the absence of an approved nomination.[16] The Tribunal invited Ms Kaur to say anything she wished to contribute to her oral evidence, and was satisfied that she had done so before the hearing was concluded.[17]

   [15] CB 187 [17]–[18]

   [16] CB 187, [19]

   [17] CB 187, [19]

4. Having considered Ms Kaur’s evidence, the Tribunal was satisfied that there was no evidence before it that proved Ms Kaur was the subject of an approved nomination, and found that the requirements of clause 187.233 of the Regulations were not met.[18]  The Tribunal affirmed the decision under review in relation to the applicants, noting that Mr Singh spouse was resultantly unable to satisfy clause 187.311 of the Regulations.[19]

   [18] CB 188, [20]–[21]

   [19] CB 188, [22]–[23]

The present proceedings

1. These proceedings began with a show cause application filed on 21 January 2020.  The applicants continue to rely upon that application.  There is one ground in it:

   1.       Jurisdictional Error as Tribunal did not consider all the facts.

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence, the affidavit of Adrian Patrick Downie made on 29 June 2020 which relates to the fate of the nomination application related to the visa application.  I also received the court book filed on 31 March 2020. 

3. I invited oral submissions from Ms Kaur this afternoon.  She well understood the problem that confronted her before the Tribunal.  She considers that she was misled by her sponsor which resulted in her visa application being refused.  She may well be right, but the reality of the situation was and remains that Ms Kaur was ineligible for the visa she sought without an approved sponsor.  That was an insuperable problem and the Tribunal came to the only decision that was, in my view, open to it in the circumstances.  The Minister’s submissions deal with the ground of review raised.  I agree with those submissions and adopt them. 

4. Ms Kaur appeared before the Tribunal by telephone and did not tender any documentary evidence at the hearing. Accordingly, the only material before the Tribunal consisted of her visa application and supporting documents, and the oral evidence provided at the hearing. Relevant to the Tribunal's task, Ms Kaur’s oral evidence consisted of two specific matters: the first being that she had been unaware that the nominating employer had withdrawn its review application and it was not her fault that she did not have a nomination, and the second being an expectation that the nominating employer would employ her once she received her visa.[20]

   [20] CB 187, [17], [19]

5. The Tribunal expressly referred to, and considered, each of these matters in its decision.[21] However, neither of these matters were found to overcome the fact that Ms Kaur could not meet an essential criteria for the grant of the visa as her nomination application had been refused.[22] 

   [21] at CB 187, [17], [19]

   [22] CB 187–188, [18]

6. This finding was plainly open to the Tribunal on the material and evidence before it. Neither the fact of the employer's intentions, nor Ms Kaur’s awareness of, or responsibility for, the status of her nomination application were to the point. For these reasons, the contention that the Tribunal failed to consider “all the facts” does not raise an arguable case for the relief claimed.

7. I conclude that Ms Kaur is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

8. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Ms Kaur did not wish to be heard on costs.

10. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 September 2020