Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 823
•4 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 823
File number(s): MLG 3116 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 4 September 2024 Catchwords: MIGRATION – temporary work (skilled) (subclass 457) visa – where primary applicant did not have a nomination by a work sponsor that was approved or pending at time of application – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss.140GB, 338, 359A
Migration Regulations 1994 (Cth) cl.457.223, 457.321
Cases cited: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZQVV v Minister for Immigration and Citizenship (2012) 262 FCR 575
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 29 August 2024 Place: Melbourne The Applicants: Appearing in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 3116 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BALJINDER KAUR
First Applicant
JOGINDER SINGH KAILE
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The application for judicial review filed on 18 October 2018 is dismissed.
3.The Applicants pay the First Respondent’s costs fixed in the amount of $3,650.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
The primary applicant is a citizen of India who sought a temporary work visa for the nominated skilled occupation of chef and named her spouse as secondary applicant.
The applicants now seek judicial review of a tribunal decision that it lacked jurisdiction.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
On 31 May 2017, Mrs Kaur applied for a temporary work (skilled) (subclass 457) visa (the visa) and included Mr Kaile as her dependant and secondary applicant (together, the Applicants). Zen Group Aust Pty Ltd was listed as sponsoring employer.
On 27 June 2018, the Department of Home Affairs wrote to Mrs Kaur and advised that her visa application could not be approved because Zen Group Aust Pty Ltd did not have an approved nomination for her at that time. By that correspondence, the Department also advised Mrs Kaur:
·That her visa application could not be linked to a new nomination application;
·To contact her proposed employer regarding why they did not have an approved nomination; and
·Of alternative options available including an invitation to comment on the adverse information within 28 days.
The Department’s file reflected that no comment was received in response to that 27 June 2018 letter.
On 22 August 2018, a delegate of the First Respondent refused to grant the visa application because the delegate was not satisfied that Mrs Kaur was subject of an approved nomination and therefore did not satisfy the essential criteria at cl.457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). In turn, Mr Kaile did not meet the criterion at cl.457.321 of the Regulations.
On 5 September 2018, the applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 19 September 2018, a representative on behalf of the Registrar of the Tribunal wrote to Mrs Kaur and advised that they had formed the view that the application for review was not valid because, at the time the application was lodged, the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (Act) that was approved or pending. By that correspondence, Mrs Kaur was invited to comment on whether a valid application had been made and was requested to do so, in writing, by 3 October 2018. That correspondence also explained that the application would then be referred (along with any comments made) to a Tribunal Member to make a decision on the application.
On 2 October 2018, Mrs Kaur wrote to the Tribunal in response, in which she said:
To
AAT
Case number: 1825884
Dear Member,
Thank you for your email. I Baljinder Kaur, lodged a 457 visa application on the 31 May 2018. I lodged my application as a chef where my prospective employer was Zen Group Aust Pty Ltd. Unfortunately, due to sponsor not providing further documentation and changes to 457 programme which were announced, my nomination was refused on the 27th of June 2018. This let to my visa application to be refused in turn as on the 22 August 2018. I was eligible for the visa under the programme and had all qualification for the position. I lodged my review application within the 21 days of refusal of my visa and hence valid. I believe I have review rights based on my visa application, which was lodged validly whilst I was in Australia. I wish to have my application to be heard before the member to put forward my case. I kindly request the member to consider my application and consider merits of my application.
Hoping for a positive response and please do not hesitate to contact me if you have any questions or queries.
Please find below reference TRF and file numbers for applications lodged with the department of Home affairs.
(sic.)
(visa, online lodgement and nomination references omitted)
On 8 October 2018, the Tribunal decided that it did not have jurisdiction in the matter. By its decision record, the Tribunal gave brief reasons for its decision which were sent to Mrs Kaur on 9 October 2018.
APPLICATION BEFORE THE COURT
On 18 October 2018, the present application for judicial review of the Tribunal’s decision was filed by way of an originating application form and accompanying affidavit. The originating application contained 9 grounds of review in the following terms:
1. To revoke and not to refuse my application for the grant of a Temporary Work (Skilled) (subclass 457) visa on the basis that I have been nominated for the position of Chef 351311 by my sponsor ZEN GROUP AUST PTY LTD.
2. Similar cases overturned in MTAT 080683, 0806874 [2010] MRTA 1436 (18 June 2010).
3. Similar cases overturned in MTAT - 150300 [2015] MRTA 857 (12 June 2015).
4. MRTA overturned/aside in 1411575 [2015] MRTA 801 (9 June 2015). MRTA overturned/remits in 1310006 [2014] MRTA 1387 (2 June 2014).
5. This statement refers to my Temporary Work (Skilled) (subclass 457) visa which was refused on 22nd August 2018. The grounds for refusal were made under the decision maker under section 65 of the Migration Act 1958, that I, the visa applicant, did not comply with the condition and I am not satisfied that paragraph (a) of subclause 457.223(4) of Schedule 2 of the Migration Regulations is satisfied.
6. I lodged a 457 visa application on the 31st of May 2017. I lodged my application as a chef where my prospective employer was Zen Group Aust Pty Ltd. Unfortunately, due to the sponsor not providing further documentation and changes to the 457 programme which were announced, my nomination was refused on the 27th of June 2018. This led to my visa application being refused in turn on the 22nd of August 2018. I was eligible for the visa under the programme and had all qualifications for the position. I lodged my review application within the 21 days of refusal of my visa and hence valid. I believe I have review rights based on my visa application, which was lodged whilst I was in Australia. I request my application to be heard before the member to put forward my case. I ask the member to consider my application and consider the merits of my application.
7. An application was made to the Tribunal on 5th September 2018 for review of the Temporary Work Subclass 457 visa. But the Tribunal has found that it has no jurisdiction in respect of my application.
8. I am applying for natural justice, so that I get fair justice and revoke my visa application or give an opportunity to apply for another visa.
7. There following few reasons for me applying under Natural justice
1. Nomination Refusal: Firstly my c se shouldn't have been refused if my nomination was to be approved. My nomination from ZEN GROUP AUST PTY LTD was refused on the bases that's not satisfied that paragraph (a) of subclause 457.223(4) of Schedule 2 of the Migration Regulations is satisfied.
My employer has informed that he had submitted all the documents and thus satisfied the Nomination and for my visa applicant criteria or a subclass 457 visa:
. Paragraph 457.223(4)(a); and
. Paragraph 457.223(4)(d); and
. Paragraph 457.223(4)(e) of Schedule 2 to the Regulations.
However, my visa was refused on the bases that my nomination was not an approved.
2. Length of time for processing and new rules:
On 31st May 2017 I the visa applicant lodged the present application for a Temporary Business Entry(Class UC), Subclass 457 - Business (Long stay) visa. In my subclass 457 visa application I had submitted a valid visa application for 457 subclass with all necessary documents.
But, it took more than 1 year for processing my 457 visa, which is not normal.
According to the immigration website it as mentioned that normal processing times for this types of visa were 4 months to 6 months. During this period resulted in few changes in 457 nomination and visa applications. Namely, 457 subclass to 482 subclass and also so regulations in the immigration act.
(sic.)
Various procedural orders were made.
At final hearing on 29 August 2024, the applicants were unrepresented and the First Respondent was represented by a solicitor advocate. There were materials before the Court, as follows:
(a)The parties relied on the court book filed on 17 July 2020 and supplementary court book filed on 22 August 2024;
(b)The applicants relied on the originating application of 18 October 2018, the affidavit sworn on the same date that accompanied the original application, and a document titled “Letter” and dated 8 August 2024 (which was not filed in accordance with the Court’s rules, but nonetheless was received in these proceedings without objection) and oral submissions made at hearing; and
(c)The First Respondent relied on its amended response filed on 21 March 2019, an outline of submissions filed on 22 August 2024 and oral submissions made at hearing.
CONSIDERATION
The real question before this Court is whether the Tribunal correctly found that it lacked jurisdiction. That question is one of jurisdictional fact for determination by the Court: SZQVV v Minister for Immigration and Citizenship (2012) 262 FCR 575 at [55].
It is convenient to address this question before engaging with the applicants’ grounds as expressed in the originating application and subsequent “letter”.
Did the Tribunal lack jurisdiction?
Yes. I accept the First Respondent’s submission that the Tribunal lacked jurisdiction in the matter.
The legislation precluded the Tribunal from reviewing the delegate’s decision unless it met the definition of “Part 5 reviewable decision”. By section 338(2) of the Act, and other than 2 exceptions which do not presently apply, a decision is a Part 5 – reviewable decision if:
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non - citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non - citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non - citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non - citizen is identified in an approved nomination that has not ceased under the regulations--the non - citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
Mrs Kaur accepted that, at the time of her review application to the Tribunal, she did not satisfy any of the alternate criteria.
The statute requires there to exist that certain state of affairs (one of the alternate criteria be met) at the time the review application was made. Accordingly, it would be futile to remit the matter as no useful result could ensue in the context of any reconsideration: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56].
I empathise with Mrs Kaur’s position to the extent that she sought to say that there may have been other avenues available for her to secure an alternate nomination and gain a skilled 457 visa. However, in the present case, the Tribunal lacked jurisdiction to determine the application that was before it and had no discretion to entertain alternate nominations.
Could the grounds otherwise succeed?
For completeness, I turn to address the grounds of the application as they were understood to be expressed.
The First Respondent fairly characterised the 9 grounds of the application for judicial review in the following terms:
·By ground 1, the applicants ask the Court not to refuse their application for the visa;
·By grounds 2, 3 and 4, the applicants refer to other cases before the Tribunal;
·By grounds 5, 6 and 7, the applicants narrate the events leading up to the Tribunal’s decision;
·By grounds 8 and 9, the applicants allege the Tribunal failed to afford them natural justice.
The Applicants’ additional “letter” or submission essentially reiterated and did not add to the substance of the originating application. Together, those grounds could not succeed for the reasons explained below.
The Applicants’ grounds of review at 1, 5, 6 and 7 do not particularise and were incapable of demonstrating jurisdictional error.
The cases cited at grounds 2, 3 and 4 were not analogous to the Applicants’ circumstances and do not raise issues relevant to or point to a finding of jurisdictional error in the present case.
To the extent that the Applicants’ complaints at grounds 8 and 9 was directed at the delegate’s decision to refuse (not approve) the proposed employer’s nomination, that decision is not subject of this application nor within jurisdiction of this Court to review. As it did not have a valid Part 5 reviewable decision before it, the Tribunal was not bound to adopt the procedure at s.359A or other procedures applicable to review of decisions under Part 5. In any event, the Tribunal did place the Applicants on notice of the jurisdictional difficulty and invited their comment. On the face of the Tribunal’s reasons, the comments provided in response were taken into account. That the applicants may have said more or wished for a hearing is not to the point in circumstances where there is nothing they could have said that would properly have changed the outcome.
RESOLUTION
For the above reasons, the application must be dismissed. There will be an order for costs as sought, in the amount of $3,650, being less than the scale amount in Schedule 2 of the Regulations.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 4 September 2024
0
3
2