Kaur v Minister for Immigration and Border Protection
[2014] FCA 520
•22 May 2014
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2014] FCA 520
Citation: Kaur v Minister for Immigration and Border Protection [2014] FCA 520 Appeal from: Kaur & Anor v Minister for Immigration & Anor [2014] FCCA 528 Parties: RAJBIR KAUR, MANJOT SINGH and KEERATVIR SINGH SRA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: QUD 83 of 2014 Judge: COLLIER J Date of judgment: 22 May 2014 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – applications for Employer Nomination (Residence) (Class BW) visas – cll 856.213 and 856.221 Migration Regulations 1994 (Cth) - first appellant employed as hairdresser – Migration Review Tribunal affirmed decision of delegate of Minister to refuse application – employer hairdresser business nominated in application ceased to operate – first appellant subsequently employed by different hairdresser business – Tribunal of view nomination with new employer could not be considered – nominated appointment must be approved and in force – application to Federal Circuit Court of Australia dismissed – whether error made in decision of Tribunal or primary judge – no error made Legislation: Migration Regulations 1994 (Cth) reg 5.19, cll 856.213, 856.221, 856.222 and 856.321 Cases cited: Li Tian v Minister for Immigration and Citizenship [2009] FCA 1405 cited Date of hearing: 19 May 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Appellants: Ms Kaur appeared on behalf of the Appellants with the assistance of an interpreter Solicitor for the Respondents: Ms L Kelly of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 83 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RAJBIR KAUR
First AppellantMANJOT SINGH
Second AppellantKEERATVIR SINGH SRA
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
22 MAY 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs to be assessed if not otherwise agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 83 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RAJBIR KAUR
First AppellantMANJOT SINGH
Second AppellantKEERATVIR SINGH SRA
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
22 MAY 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The appellants are citizens of India. They lodged applications for Employer Nomination (Residence) (Class BW) visas on 23 June 2011, on the basis of Ms Kaur's employment as a hairdresser by Hot Az Pty Ltd ("Hot Az"). On 14 May 2013 the Migration Review Tribunal ("Tribunal") affirmed the decision of the delegate of the Minister not to grant the applicants the relevant visas. This decision was affirmed by the Federal Circuit Court on 13 February 2014. The appellants now appeal from the decision below.
The application before the Tribunal was for review of the decision of the department to refuse the visa nomination of Ms Kaur by Hot Az. At the hearing before the Tribunal however Ms Kaur produced a letter from Hot Az stating that Hot Az had ceased business in 2012 due to family commitments and the inability of the applicant to work full time because her visa had been refused. Ms Kaur told the Tribunal that she had also worked for a second salon, Sylvia's, in 2011 and 2012, and that Sylvia's wished to nominate her and have her work for them full time. The Tribunal informed Ms Kaur that the visa nomination was by Hot Az, and the Tribunal could not consider any new nomination with a possible new employer.
Visas
The type of visa under consideration by the Tribunal is granted when an applicant meets the requirements of cll 856.213 and 856.221 of Sch 2, Subclass 868, of the Migration Regulations 1994 (Cth) in force at that time. These clauses provide as follows:
856.21 Criteria to be satisfied at time of application
…856.213 Each of the following is satisfied:
(a)the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
(b) either:
(i) both of the following are met:
(A)an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant's skills as suitable;
(B)unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or
(ii)the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph; or
(iii) the applicant:
(A)holds a Subclass 418, 421, 422, 428, 444, 457 or 461 visa; and
(B)has worked full-time in the occupation to which the appointment relates in Australia, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 2 years immediately before making the application; and
(C)has worked full-time for the employer mentioned in paragraph (a)…
(c) either
(i)in the case of an applicant mentioned in subparagraph 1114A (2)(a)(iii) or (iv) of Schedule 1 - the applicant:
(A)is less than 45 at the time of the application for a Skilled (Residence)(Class VB) visa or a Skilled (Migrant)(Class VE) visa; and
(B) has competent English; and
(C)has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification; or
(ii)in any other case - unless exceptional circumstances apply, the applicant:
(A) is less than 45; and
(B) has vocational English.
…856.22 Criteria to be satisfied at time of decision
846.221 The appointment mentioned in paragraph 856.213 (a):
(a) has been approved; and
(b) has not been withdrawn; and
(c) continues to satisfy the criteria for approval; and
(d) is still available to the applicant.
Note See regulation 5.19 for the criteria for approval of the appointment.Relevantly in relation to criteria to be satisfied at the time of decision, subcl 856.222 provides:
856.222 The Minister is satisfied that the appointment mentioned in paragraph 856.213 (a) will provide the employment referred to in the relevant employer nomination.
Materially, reg 5.19 provided as follows :
5.19 Approval of nominated positions (employer nomination)
(1)An employer may apply to the Minister for approval of a nominated position as an approved appointment.
(1A) Application must be:
(a) made in accordance with approved form 785 or 1054; and
(b) accompanied by the fee prescribed in regulation 5.37.(1B) The Minister may, in writing, approve or reject an application.
(1C) However :(a) the Minister must approve an application if :
(i)the application is made in accordance with subregulation (1A); and
(ii)the nominated position is the subject of an employer nomination that :
(A)if the application was made using form 785 - meets the requirements of subregulation (2); or
(B)if the application was made using form 1054 - meets the requirements of subregulation (4); and
(iii)the employer is not the subject of an action that is described in section 140L of the Act (as in force immediately before 14 September 2009) or section 140M of the Act; and
(b)the Minister must reject an application if any of the requirements in paragraph (a) is not met.
(1D)As soon as practicable after deciding an application, the Minister must give the employer
(a) a copy of the written approval or rejection of the application; and
(b) if the application is rejected:(i)a written statement of the reasons why the application was rejected; and
(ii)a written statement that the decision is an MRT-reviewable decision.
Note …..
(2) An employer nomination meets the requirements of this subregulation if:
(a)the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:
(i) actively and lawfully operating in Australia; and
(ii) operated by that employer; and
(b)the Minister is satisfied that nothing adverse is known to Immigration about the business background of :
(i) the employer; or
(ii)any officer of any of the entities that constitute the employer; or
(iii)any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(c)the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(d)the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of :
(i) the Commonwealth; and
(ii)each State or Territory in which the employer operates the business and has employees of that business; and
(e) the Minister is satisfied:
(i)that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii)if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and
(f) the appointment will :
(i) provide the employee with full-time employment; and
(ii)be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
(g)the employee's working condition will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h) the tasks to be performed in the nominated position :
(i)correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(ii)will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(i)the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette in force for this paragraph at the time at which the application for approval of the nominated position is made.
(4) …
(5) …Decision of the Tribunal
The Tribunal found that cl 856.213 requires that, at the time of application, Ms Kaur be nominated by an employer in respect of an appointment, and cl 856.221 in turn requires that, at the time of decision, the appointment be approved and be still in force. In particular, the Tribunal referred to cl 856.221 (d). The Tribunal found that Ms Kaur had not been employed by the nominating employer, Hot Az, since 2012, that that employment had ceased in 2012, and the position was no longer available to her. It followed that the requirements of cl 856.221 (d) were not satisfied.
Further, the Tribunal was not satisfied that the engagement of the first appellant by Sylvia’s would provide the employment referred to in the employment nomination, namely that of a hairdresser with Hot Az, sand therefore the Tribunal concluded that cl 856.222 was not satisfied.
In any event, there was no evidence that any nomination by Hot Az in respect of Ms Kaur had ever been approved. Accordingly Ms Kaur did not meet the requirements of cl 856.221 (a).
It followed that the other visa applicants before the Tribunal could not meet cl 856.321 as members of the family unit of a person who satisfied the criteria for the grant of a subcl 856 visa.
Proceedings in the Federal Circuit Court
The hearing in the Court below took place on 13 February 2014. The primary Judge below delivered an ex tempore judgment.
Before his Honour the appellants relied on two grounds of review of the decision of the Tribunal, namely :
(1)My application was refused based on the fact that my business nominator has ceased to operate and position was no longer available to me. In making decision Tribunal Member failed to put weight on the fact that my business nominator ceased operating because of lack of availability of staff. The main reason I was being sponsored by the local business was that my skills were needed by business to operate. It is hard to find skilled hairdresser to work full time in local market. Due to my visa refusal I was unable to work full time and business had to shut down due to unavailability of staff. Tribunal failed to put weight on these circumstances which were beyond my control and hence made "jurisdictional error" in its decision.
(2) Cl.856.213 requires that, at the time of application. The first named applicant be nominated by an employer in respect of an appointment. Clause 856.221 in turn requires that, at the time of decision, the appointment be approved and still in force. In particular cl.856.221(d) requires that the appointment be still available to the applicant. Cl.856.221(d) does not state that appointment which should be still available to the applicant has to be from the same employer which was mentioned at the time of visa applicant. Cl.856.221(d) is constructed in such a way that applicant should be sponsored by an nominator which is approved and at the time of decision nomination is still to applicant. I am working for new business which is ready to sponsor me. Tribunal failed to interpret cl.856.221(d) hence made an "Jurisdictional error" in its decision.
In summary, his Honour found :
·The first complaint of the appellants was that the Tribunal failed to take into account a relevant consideration, namely the fact that the business nominator had ceased operating owing to a lack of availability of staff. However his Honour noted that such a consideration was not provided for in the legislation. When regard is had to the relevant criteria, it is plain that the question for the Tribunal was simply whether the appointment was still available, and on the evidence the answer was plainly in the negative.
·The second complaint concerned a claim by the appellants that the Tribunal had misconstrued cl 856.221, namely that cl 856.221 (d) does not state that the appointment which should still be available to the visa applicant is to be from the same employer mentioned at the time of the visa application. His Honour rejected this claim and continued :
[7]… It is plain by reference to the terms of clause 856.213(a) that at the time of application the applicant has been "nominated by an employer" for "an appointment in the business of that employer." As such, the nomination by an employer for an appointment in their business is a requirement to be strictly satisfied at the time of application.
[8]As the Tribunal concluded in its reasons, while the applicant may have had the prospect of new employment, the new employer was not the relevant nominated employer referred to in the application. Therefore, while that employer may well have been in a position to offer the first applicant employment, that was not (sic) the employer proffered at the time of application, and the prospect of that employment was not open for consideration. There was no error in the construction of the clause by the Tribunal and this ground must also fail.
Accordingly the application was dismissed with costs.
Appeal
The appellants filed an application for extension of time and leave to appeal on 4 March 2014. As the respondents noted in their submissions, as at 4 March 2014 there was no need for the appellants to seek an extension of time in which to lodge an appeal, and no need to seek leave to appeal. It is appropriate for me to treat the grounds of the application as grounds of appeal from the decision below.
The appellants raise four grounds, namely :
1.Federal Circuit Court found no jurisdictional error in decision of MRT. I had applied the application to federal court which clearly stated that circumstances beyond the control of applicant and sponsor should be considered. Also the fact that Regional Business would benefit from employment which in turn is in interest of Australia was also overlooked by tribunal and Federal Circuit Court.
2.My application was refused by DIBP based on the fact that my business nominator has ceased to operate and position was no longer available to me. In making decision Tribunal Member failed to put weight on the fact that my business nominator ceased operating because of lack of availability of staff. The main reason I was being sponsored by the local business was that my skills were needed by business to operate. It is hard to find skilled hairdresser to work full time in local market. Due to my visa refusal I was unable to work fulltime and business had to shut down due to unavailability of staff. Tribunal failed to put weight on these circumstances which were beyond my control and hence made "jurisdictional error" in its decision.
3.Cl 856.213 requires that, at the time of application. The first named applicant be nominated by an employer in respect of an appointment. Clause 856.221 in turn requires that, at the time of decision, the appointment be approved and still in force. In particular cl. 856.221 (d) requires that the appointment be still available to the applicant. Cl 856.221 (d) does not state that appointment which should be still available to the applicant has to be from the same employer which was mentioned at the time of visa applicant. Cl. 856.221 (d) is constructed in such a way that applicant should be sponsored by a nominator which is approved and at the time of decision nomination is still to applicant. I am working for new business which is ready to sponsor me. Tribunal failed to interpret cl. 856.221 (d) hence made an "Jurisdictional error" in its decision.
4.Federal Circuit Court failed to establish the Jurisdictional error done by tribunal in its decision. I was not informed by court or anyone that I need to apply review in 14 days so was not aware of it. I do not even have money to hire a lawyer that I would have had some knowledge.
[Errors in original]
It is unnecessary for me to consider the fourth ground of appeal as it assumes (incorrectly) that the appellants were out of time in bringing their appeal.
In considering the other grounds of appeal, it is immediately apparent that the circumstances of the appellants are unfortunate. It appears that the first appellant is a skilled hairdresser, who has had numerous offers of employment. Unfortunately, not only was her nominating employer, Hot Az, unable to retain her services and has closed its business, but it appears that the visa nomination by Hot Az was never approved in the first place. On the construction of the relevant regulations by the Tribunal these matters clearly became insuperable obstacles for the appellants, and I am unable to identify errors in the reasoning of the Tribunal, or his Honour below in reviewing the Tribunal's decision.
A similar case to that currently before me was considered by this Court in Li Tian v Minister for Immigration and Citizenship [2009] FCA 1405. Relevantly Lander J said as follows :
23.The appellant contended that she satisfied the criteria because she would be employed by Revetec Holdings Limited which had acquired the business of Revetec Limited and she would therefore be employed in the same business for which approval was given under reg 5.19.
24.Regulation 856.222 requires the Minister to be satisfied that the appointment in paragraph 856.213 (a) will provide the employment referred to in the relevant employer nomination. The employment referred to in the relevant employer nomination was with Revetec Limited. The appellant's contention that she will be employed in the same business which had been approved by the Minister and therefore satisfies reg 856.222 cannot be accepted.
25.Regulation 5.19 provides for a procedure to approve a nominated position as an approved appointment. The only person who can apply for that approval is the employer and the application is for a position with that employer. The criteria that must be satisfied by the employer include criteria that are personal to the employer. The employer must be able to satisfy the Minister that the position requires an employee who is highly skilled. The Minister must be satisfied that no Australian citizen or permanent resident can be found to fill the position. The employer must satisfy the Minister that adequate provision is made for training existing employees.
26.In my opinion, reg 5.19 contemplates a process whereby the Minister in exercising the power in reg 5.19 approves a nominated position for the employer who makes the application. The approved appointment is not at large. It is for a nominated position with the employer who made the application under the regulation.
27.As soon as Revetec Limited either ceased to carry on its business or ceased to exist it was not capable of providing any appointment to the appellant. The Minister in those circumstances could not have been satisfied that Revetec Limited, which had secured the appointment, could provide the employment referred to in the relevant employer nomination. The appellant could not satisfy the criteria in reg 856.222.
28.The relevant employer nomination was made by Revetec Limited and the position for which it sought approval was with it. The appellant could only rely upon Revetec Holdings Limited in support of her application for a Subclass 856 visa if Revetec Holdings Limited had first been approved as an approved appointment under reg 5.19.
29.If the appellant's construction were right, it would render the process in reg 5.19 pointless if the person seeking the visa intended to work for some other employer other than the employer who was seeking approval of a nominated position as an approved appointment.
30.In my opinion, the Federal Magistrate was right to conclude as she did, that the decision of the Tribunal was not infected with error.
The reasoning of his Honour in Li Tian is equally applicable in the circumstances before me. In particular, it is clear that :
·The nominating employer for the first appellant's visa in this case was Hot Az. The nomination was rejected by the department, and the application before the Tribunal was to review the decision to reject that nomination.
·Read together, subreg 5.19 (2) and cl 856.213 clearly require identification of a particular employer by reference to attributes of that employer, including the specific business of that employer. Regulation 5.19 (2) refers, for example, to the business background of the employer, the record of compliance of the employer with the immigration laws of Australia, the record of compliance of the employer with workplace relations laws, the training provided by the employer for employees, and the provision of employment by the employer to the employee for at least 3 years. As Lander J observed in Li Tian, the criteria which must be satisfied by the employer include criteria which are personal to the employer.
There is no provision in the regulations contemplating a situation where the visa application continues notwithstanding a change of employment by the visa applicant.
Clause 856.222 clearly comprehends the continuation of the employment relationship in place at the time of the visa nomination under cl 856.213 and pursuant to reg 5.19. Indeed when cl 856.213 refers to the appointment mentioned in cl 856.213 (a) being "still available to the applicant", it clearly means the original employment relationship at the time of the visa application.
It follows that while the termination of her employment by Hot Az was outside the control of the first appellant, the legislation does not contemplate any review of a rejected visa nomination by the Tribunal comprehending the continuation of the nomination by a new employer.
No errors were made in the decision of the Tribunal or the primary judge, and the appeal should be dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 22 May 2014
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