Kaur v Minister for Immigration

[2015] FCCA 2138

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2138

Catchwords:
MIGRATION – Review of decision of Migration Review Tribunal – jurisdictional error – failure by Tribunal to ask itself correct question – allegation irrelevant consideration taken into account – no error found – application dismissed.

Legislation:

Migration Regulations 1994: schedule 2; 5.19(4);

Old Swanport Investments Pty Ltd As Trustee For The Ruggiero Family Trust v Minister for Immigration & Anor [2015] FCCA 2139
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] 144 FCR 1

First Applicant: HARPEET KAUR

Second Applicant: SUKHJINDER SINGH

Third Applicant: SAMARDEEP SINGH MANN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 299 of 2014

Judgment of: Judge Brown

Hearing date: 25 March 2015

Date of Last Submission: 9 April 2015

Delivered at: Adelaide

Delivered on: 31 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Clothier Anderson and Associates

Counsel for the Respondents: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 8 August 2014 and the amended application filed 3 March 2015 are dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of three thousand three hundred and twenty-three dollars ($3,323.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 299 of 2014

HARPEET KAUR

First Applicant

SUKHJINDER SINGH

Second Applicant

SAMARDEEP SINGH MANN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 19 July 2013, Ms Harpeet Kaur, “the first applicant” applied for a regional sponsored migration (class RN) subclass 187 visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. On 24 February 2014, a delegate of the first respondent refused to grant the first applicant the visa.  As a consequence, Ms Kaur applied to the Migration Review Tribunal “the MRT” for a review of the decision in question.

3. This is an application for the issue of constitutional writs to quash the resulting decision of the MRT made on 16 July 2014.  This decision confirmed the decision of the delegate of the first respondent not to grant the relevant visa.

4. Ms Kaur is to be regarded as the primary review applicant.  Mr Singh (the second applicant) is her husband.  Samardeep Singh Mann, born 17 October 2011, (the third applicant) is her son. 

5. There is no dispute that Ms Kaur had held a position, as a project administrator, for a company Old Swanport Investments Pty Ltd, which grows vegetables at a farm near Murray Bridge.  Old Swanport Investments nominated Ms Kaur, pursuant to the Regional Sponsored Migration Scheme, for the visa in question. 

6. As will become clear, the success or otherwise of Ms Kaur’s and her family’s visa applications depends on Old Swanport Investments nomination of Ms Kaur being successful, pursuant to the applicable administrative scheme for the grant of  visas. 

7. The Minister’s delegate declined Old Swanport Investments nomination on 24 January 2014.  This decision was subject to a review in the MRT.  The review took place on 3 July 2014, the same day as Ms Kaur’s application for review.  At the time, Ms Kaur was outside of Australia and was not available to give evidence in answer to an invitation from the Tribunal.

8. On review, the Tribunal concerned dismissed Old Swanport Investments application for review primarily because it was not satisfied that it had been satisfactorily established that the position in question could not be filled by either an Australian citizen or permanent resident in this country, which was an essential condition required to be satisfied before the nomination in question could be approved. 

9. Old Swanport Investments sought a review of this decision in this court.  It relied on two grounds for its review application, which were as follows:

   “1. The Second Respondent erred in its application of regulation 5.19(4)(h)(ii)(C) of the Migration Regulations 1994 (Cth) by:

   a.  asking itself the wrong question, namely ‘whether the relevant position cannot’ objectively or ever ‘be filled by an Australian citizen or an Australian permanent resident who is living in the same local area’;

   b.  alternatively, failing to ask the right question, namely ‘whether the relevant position cannot’ subjectively or in the immediately foreseeable future ‘be filled by an Australian citizen or an Australian permanent resident who is living in the same local area’;

   c.  taking into account an irrelevant consideration, namely, that:

   i.   an Australian citizen or permanent resident might exist who could fill the position; or

   ii. a ‘preferred’ job criterion was ‘bona fide’ and ‘counter to the objects of the legislation’.

   2. The Second Respondent erred by acting unreasonably in that it failed to adjourn the joint hearing on 3 July 2014 under s.362B of the Migration Act 1958 (Cth) to allow the visa applicant to return to Australia to appear at the Tribunal and make submissions to it at or in response to the hearing.”

10. For reasons provided in tandem with these reasons,[1] I found no merit in either of these grounds.  These reasons for judgment need to be read in conjunction with the reasons in which Old Swanport Investments Pty Ltd is the applicant.

    [1]  See Old Swanport Investments Pty Ltd As Trustee For The Ruggiero Family Trust v Minister for Immigration & Anor [2015] FCCA 2139

11. This is because each of the applicants in this case are represented by the same counsel as Old Swanport Investments, as is the Minister.  As a consequence, the arguments in respect of both matters were delivered concurrently by all the various applicants and the Minister. 

12. In addition, Ms Kaur relies on the same first two grounds for review, in her own review application.  For the reasons provided in the Old Swanport Investments case, I can find no merit in either of these grounds of review. 

13. However, that is not an end to the matter, as Ms Kaur has relied on a third ground of review, which is as follows:

    The Second Respondent erred in its application of clause 187.233(5) of Schedule 2 of the Migration Regulations 1994 (Cth) by:

    a.  asking itself the wrong question or took into account an irrelevant consideration, namely whether the visa applicant was in Australia to take the position at the time of the hearing before the Second Respondent.

    b.  failing to ask the right question, namely whether the employer continued to make the position available to the visa applicant.”

The legal framework

1. The first applicant or one of her family must satisfy the conditions attached to the grant of the visa, which are specified in Clause 187.233 of Schedule 2 the Migration Regulations 1994. At relevant times, the regulation reads as follows:

   “(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

   (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 was the nominator in the application for approval.

   (3)    The Minister has approved the nomination.

   (4)    The nomination has not subsequently been withdrawn.

   (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.”

2. Regulation sub-regulation 5.19(4)(h)(ii) is set out in the reasons for judgment relating to the Old Swanport Investments matter.  Essentially, pursuant to this sub-regulation, the Minister must be satisfied that there is a genuine need for the relevant position, in regional Australia, to be filled by the nominator concerned and there is no resident Australian citizen or permanent resident, with appropriate skills, to fill that position. 

The decision of the MRT

1. For reasons which are not clear to me, the MRT handed down its decision in Ms Kaur and her family’s case some two days after the decision was made in the Old Swanport Investments case, although the two cases had been heard together and the outcome of the former had obvious implications for the outcome of the latter.

2. The Tribunal, in the family case identified the primary issue in the matter as follows:

   “The main issue in the present case is whether the applicant meets the visa requirements at the time of decision, including that the appointment in the business of the employer for which the applicant has been nominated, has been approved and is not withdrawn, and the position is still available to the applicant.”[2]

   [2] See Case Book (family application) at page 79 [9]

3. Under the heading “Nomination of a position” the Tribunal identified that the position to which the application relates must be the subject of an application for approval of a nominated position pursuant to either a direct nomination in regional Australia or the Regional Sponsored Migration Scheme.  Thereafter the Tribunal identified that the following matters need also to be satisfied:

   ·The person who will employ the applicant was the nominator in the application for approval;

   ·The nomination has been approved and has not been subsequently withdrawn;

   ·The position is still available to the applicant;

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

4. The Tribunal further identified that:

   “On 14 July 2014 the Tribunal affirmed the decision under review in the related MRT case number 1402373 to refuse the nomination.”[3]

   [3] Ibid at page 80 [14]

5. This was the decision in which the MRT determined that it would confirm the decision of the Minister’s delegate not to approve Old Swanport Investment’s nomination of Ms Kaur to the position in question.  Necessarily, the failure of the nomination was fatal to Ms Kaur’s visa application. 

6. It is clear from the reasons of the Tribunal that it did not explicitly indicate this.  Rather a large proportion of the decision deals with issues relating to the whether the position remained available to the applicant.  In this respect the Tribunal concluded as follows:

   “The Tribunal notes that Mrs Harpreet Kaur, has been employed in the nominated position for a little over 12 months throughout the processing of the application but at the time of the hearing was away overseas attending to the health needs of her mother in India.  There is no evidence before the Tribunal that, as at the date of the hearing of this matter, or at the time of decision, Mrs Kaur is available to take up the nominated position of Program or Project Administrator with the applicant.  The migration agent representative reported to the Tribunal, at the hearing that Mrs Kaur returned to India in May of 2014 and does not have any substantive visa to allow her to return to Australia and therefore she remains overseas.” [4]

   [4] Ibid at page 80 [13]

7. Mr Albert, counsel for the applicant, contends that in this formulation the Tribunal has fallen into jurisdiction error by asking itself the wrong question in respect of the applicant’s satisfaction or otherwise of the condition attached to the visa for which she has applied.[5]

   [5] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow & Hayne JJ

8. Rather than asking itself whether the position, in itself, still remained available to Ms Kaur, the Tribunal has focussed on an irrelevant consideration, namely whether Ms Kaur herself was available to take up the position.

9. However, in my view, this was only one of several conditions which the applicant was required to satisfy.  The major consideration, for the Tribunal, was the approval of her nomination, which it was noted had not been granted.  In this context, the question of the whereabouts of the applicant was irrelevant, her nomination to the position, to which she aspired, not having been approved.

10. The Tribunal explicitly noted that the applicant’s nomination had not been approved and that the satisfaction of this criterion was essential.  In this context, in my view, the following comments of the Full Court of the Federal Court in NABE v  Minister for Immigration & Multicultural & Indigenous Affairs (No 2) are apposite:

    “Every case must be considered according to its own circumstances.  Errors of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.’ ”[6]

    [6]  NABE v  Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] 144 FCR 1 at 20 [63]

11. In this particular case, the finding that the failure to approve the applicant’s nomination, by Old Swanport Investments, was not legally erroneous, rendered otiose any subsequent inquiry into the status of the applicant to take up the position and was therefore of no consequence to the decision ultimately reached by the Tribunal in the applicant’s case.

12. In all these circumstances, I have come to the conclusion that there is no merit in ground two of the application.  Accordingly, the application should be dismissed and an order for costs made in the sum of three thousand three hundred and twenty-three dollars ($3,323.00), which is one half of the scheduled costs for applications of this kind.

13. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:                  31 August 2015