Kaur v Minister for Immigration and Border Protection
[2016] FCA 84
•11 February 2016
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2016] FCA 84
Appeal from: Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 2138 File number: SAD 333 of 2015 Judge: PERRY J Date of judgment: 11 February 2016 Date of addendum: 16 February 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a Migration Review Tribunal decision – where Minister had not approved the employer’s nomination application – appeal dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Date of hearing: 11 February 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the First, Second and Third Appellants: The appellants appeared in person Counsel for the First Respondent: Mr P D’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ADDENDUM TO REASONS FOR JUDGMENT
On 15 February 2016, after judgment had been delivered with ex temporare reasons given, the Court Support Manager of the South Australian Federal Court Registry alerted my chambers to an email that had been sent by the first appellant on 8 February 2016 (three days before the hearing). That email read in part:
…I have hearing on 11/02/2015 at 10:15 am but unfortunately I couldn’t find any lawyer who can represent me so I would highly appreciate u if u can give me some extension so I can find a lawyer who can look after my case.
(Errors in original.)
Due to an oversight, that email was not read by the Registry until 15 February 2016. This oversight was unfortunate and means that my finding at [24] of my reasons that “[n]o application had been filed or foreshadowed” was incorrect.
Ultimately, however, nothing turns on this oversight as I would not have allowed the application for an adjournment in any event. The application was still late, the appellant had already had sufficient time in which to locate a lawyer (the notice of appeal having been filed on 18 September 2015), there was nothing to indicate that by adjourning the hearing the first appellant would be able to locate legal representation, and, as I found at [24], the appeal had no prospects of success.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Addendum to the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 16 February 2016
ORDERS
SAD 333 of 2015 BETWEEN: HARPREET KAUR
First Appellant
SUKHJINDER SINGH
Second Appellant
SAMARDEEP SING MAAN
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
11 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Costs are to be agreed or, in the absence of agreement, assessed.
3.If assessed, the amount of costs awarded is not to exceed the sum of $6439.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)PERRY J:
1. INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal, which is now known as the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant Regional Employer Nomination (Permanent) (Class RN) visas to the appellants under s 65 of the Migration Act 1958 (Cth) (the Act).
The appellants are Indian nationals. The first appellant was the primary applicant for the visa made on 18 July 2013. The second and third appellants are the first appellant’s husband and son (a minor) respectively, whose visa outcome relied on the outcome of the first appellant’s application.
For the reasons set out below, the Tribunal’s findings were such that the appellants could not on any view have satisfied the criteria for the grant of the visas. As such, even if there was error in the decision of the Tribunal, it was within the Tribunal’s jurisdiction. The appeal must therefore be dismissed.
2. BACKGROUND
2.1 The application for a visa and delegate’s decision
Under s 31(3) of the Act, the regulations may prescribe criteria for a visa or visa of a specified class. Pursuant to that provision, reg 2.03 of the Migration Regulations 1994 (Cth)(the Regulations) provided that the prescribed criteria for the grant to a person of a visa of a particular class are “(a) the primary criteria set out in a relevant part of Schedule 2; or (b) if a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria.”
At the time of the visa application, Class RN visas contained one subclass, Subclass 187 (Regional Sponsored Migration Scheme), the criteria for which were set out in Part 187 of Schedule 2 to the Regulations. The first appellant having elected to apply for the ‘Direct Entry’ stream, cl 187.233 in Schedule 2 to the Regulations required the following primary criteria to be met before the visa could be granted:
(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 been subsequently 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.
(emphasis added)
The nominated position for the purposes of reg 5.19 was “Project Administrator”. The employer, Old Swanport Investments, had lodged an application for a permanent appointment on 18 July 2013.
On 24 January 2014, the employer’s nomination application was refused by the Minister’s delegate. On the same date, an officer of the Department of Immigration and Border Protection sent a letter by email to the first appellant inviting her to comment on the refusal of her employer’s nomination application. None of the appellants responded to that invitation.
On 24 February 2014, a delegate of the Minister refused to grant the appellants the visas on the basis that, since the position to which the visa application related had not been approved by the Minister, the first appellant’s visa application did not satisfy the criterion in cl 187.233(3) of the Regulations. As the first appellant had not satisfied the primary criteria for the visa class, the delegate found that second and third appellants, as members of the first appellant’s family unit, were therefore also unable to satisfy the criteria for that visa class.
2.2 The decision of the Tribunal
On 13 March 2014, the appellants applied for review by the Tribunal. On 28 May 2014, the appellants were invited to appear before the Tribunal to give evidence and present arguments relating to their application. The hearing date was listed as 3 July 2014.
On 16 June 2014, the representative of the first appellant sent a facsimile to the Tribunal, requesting a postponement of the hearing from July 2014 to after September 2014. The reason for the request for postponement was that the first appellant was, at that time, still in India as her bridging visa had expired and she did “not have in hand right now [the] Australian visa to come back”.
On the same date, a registry officer of the Tribunal responded to the representative, advising that “[t]he presiding member has considered the request and declined” and that the hearing remained scheduled for 3 July 2014. The email further noted that “[t]he Tribunal considers there are insufficient grounds to grant the adjournment request” and that if there was no appearance by the appellant, “it may proceed to determine the matter on that basis” pursuant to s 426A of the Act.
At the hearing on 3 July 2014, the appellants were represented in relation to the review by their registered migration agent. The first appellant did not appear. The second appellant was present at the hearing but elected not to give evidence to the Tribunal.
On 16 July 2014, the Tribunal affirmed the decision not to grant the appellants the visas. As to the first appellant’s request for a postponement of the hearing, the Tribunal noted that it had refused to adjourn the hearing “as the grounds set out were considered not sufficient to justify adjournment of the hearing. Pursuant to s 426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it”.
The Tribunal observed that the main issue in the present case was whether the first appellant met the visa requirements at the time of decision, being those in cl 187.233 of Part 187 of Schedule 2 to the Migration Regulations, “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”. However the Tribunal found that there was no evidence before it that, as at the date of the hearing or decision, the first appellant was available to take up the nominated position. In this regard the Tribunal had noted that the first appellant, while in the nominated position for a little over 12 months throughout the processing of the application, was away overseas attending to the health needs of her mother in India at the time of the hearing. The migration agent representative also reported to the Tribunal at the hearing that the first appellant had returned to India in May 2014 and had no substantive visa to allow her to return and therefore remained overseas. In addition, the Tribunal noted that on 14 July 2014 it affirmed the decision under review in the related case to refuse the employer’s nomination.
After noting that the delegate had refused the appellants’ visa applications because the appointment nomination to which the appellants’ visa application related had not been approved, the Tribunal observed that it was for the appellants to provide “as much detail as is necessary to enable the examiner to establish the relevant facts” and it was “not required to make the applicant’s case for him or her”. The Tribunal concluded at [22] and [23] of its reasons:
In the aforementioned circumstances, where written notices had been sent inviting the applicants to give evidence and present arguments on the basis that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, the Tribunal has no further evidence to find that the applicant now satisfies the requirements of cl 187.233.
The Tribunal finds, in the absence of further evidence, that the applicant does not satisfy the above visa requirements at the time of decision.
Having found that the first appellant’s visa could not be granted, the Tribunal concluded that the second and third appellant’s visas could also not be granted.
2.3 The decision of the Federal Circuit Court
On 8 August 2014, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 2 March 2015, the appellants filed an amended application for judicial review which was in substantially the same terms as a parallel application for judicial review filed by the first appellant’s employer and heard at the same time by the primary judge. Broadly speaking, the grounds of review were that the Tribunal fell into jurisdictional error by asking itself the wrong question, failing to ask itself the correct question, taking into account irrelevant considerations, and acting unreasonably in refusing to adjourn the hearing.
Both matters were heard together by the primary judge. At the hearing in the Court below, the appellants were represented by counsel.
The appellants contended that the Tribunal asked itself the wrong question in considering whether the first appellant was available to take up the position. However, the Federal Circuit Court found at [24] and [26] that:
… 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.
…
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 enquiry 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.
Accordingly the Federal Circuit Court dismissed the application, finding that it lacked any merit.
3. CONSIDERATION
On the appeal, the appellants seek an order that the Federal Circuit Court decision be “reconsider[ed] and quashed” and for this Court to “advise Department of Immigration to reconsider my RSMS 187 application”. The ground of appeal relied on by the appellants was stated in the notice of appeal as follows:
I hereby request court to accept my appeal application against court decision because the major factors were not considered in my case and there is an error in dismissing my previous application. Because the court has not given due consideration to the jurisdictional error in AAT decision where the decision was made by taking into account irrelevant consideration about the nominated position which could be filled locally by Australian citizen or permanent resident. AAT itself asked wrong question and the court does not considered the factor in detail. The nominated position was still available for me to join after the grant of visa however my whereabouts at the time of hearing with AAT were taken and considered wrong which in turn affected the outcome of my case. Going to India during that time was under unforeseen circumstances. My mother got seriously sick and I had to go in emergency. I was providing care to my sick mother but my bridging visa to travel got expired and I had no valid visa to return to Australia. I request the court to consider those factors as well as which were beyond my control and totally the call of time and life factors.
(All errors in original.)
In effect, the appellants contend that the Tribunal’s finding that there was no evidence that the first appellant was available to take up the position was wrong. With respect, however, even if that were the case, it would be an error within jurisdiction which did not therefore render the Tribunal’s decision invalid. This is because it was sufficient for the Tribunal to find, as it did, that the employer’s nomination had not been approved by the Minister and that the application for review of that decision in the Tribunal had been unsuccessful. As a result, the first appellant could not on any view satisfy the requirement in cl 187.233(3) in Schedule 2 to the Regulations that “[t]he Minister has approved the nomination.” That requirement was a primary criterion which the first appellant had to meet in order for the visa to be granted.
4. THE APPLICATION FOR AN ADJOURNMENT
Finally, at the hearing of the appeal, the appellant sought an adjournment in order to find a lawyer. That application was opposed by the Minister on the ground of the lateness of the application and on the ground that there would be no point in allowing the adjournment because the appeal could not possibly succeed.
Even though it was not in dispute that the first appellant had been in India for at least part of the period since the Tribunal’s hearing, I did not consider that it was appropriate in all of the circumstances to allow the adjournment. No application had been filed or foreshadowed before the hearing of the appeal. Furthermore, for the reasons set out above, I consider that the appeal had no prospects of success. In this regard, it was not in dispute that no appeal had been lodged against the decision of the Federal Circuit Court dismissing the challenge to the Tribunal’s decision not to approve the employer’s nomination, and that the time within which to appeal the Federal Circuit Court decision as of right had expired.
5. CONCLUSION
For the reasons set out above, the appeal must be dismissed. I will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 11 February 2016
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