KAUR v Minister for Immigration

[2015] FCCA 3434

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3434

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – employer nomination having been refused – position being no longer available to first applicant – show cause hearing – application dismissed.

Legislation:
Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Act 1958, ss.351, 359A
Migration Regulations 1994, Sch.2 cl.187.233, sub-cl.187.233(1)

First Applicant: SANDEEP KAUR

Second Applicant: AVTAR SINGH UPPAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 675 of 2015

Judgment of: Judge Riley

Hearing date: 9 December 2015

Date of last submission: 9 December 2015

Delivered at: Melbourne

Delivered on: 9 December 2015

REPRESENTATION

Counsel for the first applicant: The first applicant appeared in person

Solicitors for the first applicant: The first applicant was not represented

Counsel for the second applicant: The second applicant appeared in person

Solicitors for the second applicant: The second applicant was not represented

Solicitor advocate for the first respondent: Bromley Hornsby

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed on 1 April 2015 be dismissed.

2. The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 675 of 2015

SANDEEP KAUR

First Applicant

AVTAR SINGH UPPAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”).  The applicants applied for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas.  The matter comes before the court today as a show cause application.  As such, the question is whether the applicants have a reasonably arguable case in their substantive application. 

2. The applicants applied for the visas on 25 June 2013. The first applicant indicated that she was seeking the visa on the basis of a nomination from her sponsoring employer, Midland Café and Pizza Pty Ltd. The delegate refused the visa on the basis that the first applicant did not meet cl.187.233 of Schedule 2 of the Migration Regulations 1994 (“the regulations”), because the Minister had not approved the nomination.

3. The applicants applied to the tribunal on 23 January 2014, for review of the delegate’s decision.  The tribunal noted that the refusal of the nomination by Midland Café and Pizza Pty Ltd had been reviewed by the tribunal differently constituted and upheld. 

4. The tribunal wrote to the applicants under s.359A of the Migration Act 1958 (“the Act”) on 27 November 2014. The tribunal invited the applicants to comment on information that the department had refused the nomination application lodged by Midland Café and Pizza Pty Ltd on 13 December 2013 and the tribunal had affirmed the nomination refusal on 24 November 2014. The tribunal said in its letter to the applicants that the effect of that was that the first applicant did not meet cl.187.223 at the time of decision. The tribunal invited the applicants to provide information in response.

5. The applicants’ agent responded on 22 December 2014. The agent:

   a)acknowledged that the refusal of the nomination had been affirmed by the tribunal;  

   b)advised that the nominator had sold the business, due to the ill health of the proprietor; and

   c)said that the first applicant had been employed in the business until 15 March 2014, after which new owners had employed members of their own family to work in the business. 

6. The applicants appeared before the tribunal at a hearing on 19 February 2015.  The tribunal also heard oral evidence from a Mr Haskins, who was the former proprietor of the Midland Café and Pizza Pty Ltd. 

7. The tribunal concluded that the first applicant did not meet the requirements of cl.187.233 of Schedule 2 of the regulations. Specifically, the applicant could not show that the position in which the applicant had been employed had been an approved position for the purposes of the regulations. The tribunal noted that sub-cl.187.233(1) of Schedule 2 to the regulations required that:

   a)the person who will employ the applicant is the nominator;

   b)the nomination has been approved and not subsequently withdrawn;

   c)the position is still available to the applicant; and

   d)the visa application was made no more than six months after the nomination of the position was approved. 

8. As stated, the nomination was not approved and the tribunal, differently constituted, had affirmed the refusal.  The tribunal also noted, on the basis of the agent’s letter and also the oral evidence of Mr Haskins, that the position that the applicant had previously held at Midland Café and Pizza Pty Ltd was no longer available to her.  Consequently, the tribunal noted that the applicant did not meet the requirements of subclass 187.233(5).  The tribunal considered whether the applicant met any of the other streams of cl.187, but found that the applicant did not. 

9. The tribunal noted that the secondary applicant was not able to satisfy the primary criteria for the subclass 187 visa, as his claim rested on the primary applicant’s claim. 

10. The tribunal considered that it had no alternative but to affirm the decision under review. Nevertheless, the tribunal, over approximately three pages, dealt with various other matters raised by the applicants at the tribunal hearing. Those matters might be regarded as compassionate circumstances. In view of those circumstances, the tribunal considered whether to refer the matter to the Minister, pursuant to s.351 of the Act. However, ultimately, the tribunal concluded that it would not be appropriate to refer the matter. As stated, the tribunal affirmed the delegate’s decision.

11. The grounds in the application to this court are as follows:

    1. The Tribunal failed to consider the applicant’s individual and specific circumstances and apply the law accordingly.

    2. That a breach of the rules of natural justice occurred in connection with the making of the Decision

    3. That the applicant was denied procedural fairness in connection with the making of the Decision.

    4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed.

    5. That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.

12. The applicants were unable to elaborate on those grounds before this court.  However, it does seem to be clear that the tribunal did consider the applicants’ individual and specific circumstances and applied the law to them. 

13. I have been unable to detect any breach of the rules of natural justice.  The issues before the tribunal were clearly flagged to the applicants, both in a pre-hearing letter and in the hearing itself, according to the reasons of the tribunal.  The tribunal, by seeking comments by letter and by dealing with the matter at an oral hearing, clearly afforded the applicants natural justice. 

14. The applicants have said that procedures required by law to be observed were not observed. However, I have been unable to detect any manner in which the required procedures were not observed. The tribunal, as I have said, convened a hearing at which the applicants appeared and were represented. The reasons for decision seem to indicate that there was a fair and reasonable hearing process. The tribunal also sent the letter under s.359A of the Act, raising relevant matters for the applicants to respond to.

15. It is also alleged that the decision was an improper exercise of the power conferred by the Act. I am unable to see any basis upon which that could be true. The relevant subclause set out certain criteria for the visa. One was that there be an approved nomination. In this case, there had been such a nomination, but it was not approved. That refusal was affirmed by a separate tribunal prior to the tribunal in this case considering the matter.

16. The subclause also required that the nominated position still be available to the first applicant.  However, there was clear evidence from the former business owner that the position was no longer available.  In the circumstances, it does not seem to me that there is any prospect of the applicants being able to successfully argue the matters raised in their application.

17. There is also an affidavit in support of the application, sworn by the first applicant on 1 April 2015.  It alleges: 

    … the Tribunal Member failed to consider and correctly assess situation relating to sponsoring business my role as cook.

    However, as I have explained, the tribunal, in my view, did correctly consider and assess the situation.  It seems to me that, on the evidence, there was no other decision that the tribunal could have made.

18. The first applicant also said in the affidavit that:

    … the tribunal made a Jurisdictional error by not considering the essential facts of the case and by not giving correct weight to the matters that could have been crucial for the decision. 

19. It seems to me that the tribunal clearly did consider the essential facts of the case. Matters of weight are essentially for the tribunal. However, in any event, this was not a matter where weight was a consideration. The first applicant simply did not satisfy the mandatory criteria.

20. Before the court today, the first applicant said that the tribunal took a lot of time to come up with its decision and if the tribunal had been quicker, the business would not have been sold and she would still have had her position.  That may be so.  However, it does not alter the fact that, when the tribunal did come to make its decision, the position was no longer available to the applicant and therefore an essential criterion could not be met.  Additionally, there was the insurmountable difficulty that the nomination had been refused.

21. In all the circumstances, I do not accept that the applicants have a reasonable prospect of success, or any prospect of success, in the substantive application. Consequently, pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed on 1 April 2015 will be dismissed.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  21 December 2015