Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 223
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 223
File number(s): SYG 428 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 22 March 2023 Catchwords: MIGRATION LAW – applicants’ application for review of a Registrar’s decision – hearing de novo of respondent’s application for summary dismissal – subclass 187 visa – application of clause 187.233 of schedule 2 Migration Regulations 1994 – where the applicant was not subject to an approved nomination – where Tribunal made the only decision available in the circumstances – finding that no reasonable prospects of success and remittal to the Tribunal would be futile – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 359A, 424, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 13.13, 21.04
Migration Regulations 1994, cls 187.212, 187.223, 187.233, 187.311
Cases cited: Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 Division: Division 2 General Federal Law Number of paragraphs: 74 Date of last submission/s: 25 January 2023 Date of hearing: 25 January 2023 Place: Melbourne Solicitor for the Applicants: The Applicants appeared in person Solicitor for the First Respondent: Ms S Roberts of Mills Oakley ORDERS
SYG 428 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BHAVNEET KAUR
First Applicant
HARDEEP SINGH
Second Applicant
MANRAJ SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The applicants’ application for review of a registrar’s decision filed on 28 December 2022 be dismissed.
2.The first and second applicants pay the first respondent’s costs of this application in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for review of a Registrar’s decision made on 19 December 2022.
By this decision, the Registrar determined an application by the first respondent for the summary dismissal of the applicant’s application for judicial review. On 19 December 2022, the following orders were made by Registrar van der Westhuizen:
1.The proceeding be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
3.The first and second applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,930.
A review of a decision of a Registrar must proceed by way of a hearing de novo.[1] Consequently, the issue before this court is whether the first respondent’s application for summary dismissal ought be granted.
[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 21.04.
BACKGROUND
The factual issues in this matter are not in dispute.
The first applicant is a citizen of India.[2] The second applicant is her husband and the third applicant is the child of the first and second applicants.[3]
[2] Court book at page 2.
[3] Court book at pages 3, 4 and 66.
Subclass 187 application made on 15 June 2017
On 15 June 2017, the first applicant applied for a subclass 187 visa in the Direct Entry stream.[4] This application was based on her employment with A&P Investors Pty Ltd (‘the sponsor’),[5] in the nominated position of ‘Café or Restaurant Manager’.[6]
[4] Court book at pages 1 to 13.
[5] Court book at page 58.
[6] Court book at page 6.
On 15 October 2018, the then Department of Home Affairs (‘the Department’) wrote to the first applicant inviting her to comment on the fact that the nomination submitted by the sponsor listing her as their nominee had been refused.
In that letter, the Department, after advising the applicant of the sponsor’s refusal said:
… This means that your visa application cannot be approved.
You have the option of withdrawing your application …
…
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused, the department will notify you if you are eligible for merits review…[7]
[7] Court book at page 58.
On 26 October 2018, the first and second applicants notified the Department of the birth of their child, the third applicant.[8] The applicants did not otherwise respond to the Department’s letter of 15 October 2018.
[8] Court book at page 66.
Refusal of subclass 187 visa application on 26 November 2018
On 26 November 2018, the applicants were notified of the refusal of their visa application.[9]
[9] Court book at pages 77 to 79.
The delegate’s decision record is at pages 83 to 89 of the court book. The visa was refused on the basis that the primary applicant did not satisfy the requirements of clause 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as she was not the subject of an approved nomination.
As the primary applicant did not meet the requirements of clause 187.233, the delegate went on to find that the second and third applicants also did not meet the requirements of clause 187.311 as they were not a family member of a person who holds a subclass 187 visa.
Application for review at Tribunal on 6 December 2018
On 6 December 2018, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the delegate’s decision.[10]
[10] Court book at pages 90 to 92.
On 14 February 2022, the applicants were invited to attend a telephone hearing before the Tribunal, which was scheduled to occur on 17 March 2022.[11]
[11] Court book at page 101.
The following day, on 15 February 2022, the Tribunal wrote to the applicants pursuant to section 359A of the Migration Act 1958 (Cth) (‘the Act’) and invited them to comment on adverse information, namely the decision of the Tribunal made 31 August 2021 affirming the decision not to approve the sponsor’s nomination in relation to the applicant’s position (‘section 359A letter’).[12]
[12] Court book at page 114 and following.
In the section 359A letter, the Tribunal set out the particular information which could provide a basis for affirming the delegate’s decision and then said:
The above information is relevant because cl 187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved.
If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.[13]
[13] Court book at page 114.
The Tribunal then set out the timeframe for a response to be provided and what the applicant could do if she required more time. The Tribunal also said:
An invitation to attend a scheduled hearing was sent to you on 14 February 2022. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.[14]
[14] Court book at page 115.
On 28 February 2022, the first applicant responded to the section 359A letter by email simply stating:
Dear Officer
Kindly make the decision as per the information provided at the time of Lodgement.
Best Regards … [15]
[15] Court book at page 116.
In those circumstances, on 7 March 2022, the Tribunal proceeded to make its decision without further information from the applicant.[16]
[16] Court book at page 119.
TRIBUNAL DECISION
The Tribunal’s decision record of 4 March 2022 is set out at pages 121 to 124 of the court book.
At paragraphs [1] to [4] of the decision record, the Tribunal set out the background to the application and the required criteria for a subclass 187 visa.
At paragraphs [5] to [6], the Tribunal referred to the delegate’s reasons for refusing to grant the visa, namely that the sponsor’s nomination had been refused by a delegate of the then Minister for Home Affairs (‘the Minister’) on 15 October 2018.
At paragraph [10], the Tribunal noted that the issue in this matter is whether the applicant meets the requirements of clause 187.233 of Schedule 2 to the Regulations. Relevantly, clause 187.233, as it applied at the relevant time, provided:
(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:
…
(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.
(4A) Either:
(a)there is no adverse information known to Immigration about the employer who made the nomination or a person associated with the employer; or
(b)it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with the employer.
(5) The position is still available to the applicant.
(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.
At paragraphs [11] and [12], the Tribunal discusses the relevant criteria for the grant of the subclass 187 visa.
At paragraphs [13] to [17] the Tribunal sets out the invitations issued to the applicant, initially to attend a hearing and then to respond to adverse information. At paragraph [18], the Tribunal refers to the applicant’s response to the section 359A letter and at paragraph [19] goes on to state that in those circumstances, the Tribunal has resolved the matter on the papers.
At paragraphs [20] to [24], the Tribunal sets out its reasoning in the matter. In essence, it found that as the sponsor’s nomination was not approved, the primary applicant did not meet the criteria in clause 187.233(3). As such, the second and third applicants also did not meet the requirements of clause 187.311.
In those circumstances, at paragraph [25], the Tribunal affirmed the delegate’s decision not to grant the applicants the visas.
PROCEEDINGS IN THIS COURT
On 18 March 2022, the applicants filed an application in this court seeking judicial review of the Tribunal’s decision.
By its response filed on 31 March 2022, the first respondent:
(a)indicated that the applicants had failed to properly invoke the court’s jurisdiction under section 476(1) of the Act;
(b)seeks an order for the appointment of a litigation guardian in relation to the third applicant; and
(c)seeks orders for the dismissal of the applicants’ application under rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’) on the basis the application has no reasonable prospects of success.
Orders were made on 17 June 2022 for the matter to be listed for the hearing of the summary dismissal application on a date to be advised. Procedural orders were also made, including orders permitting the applicant to file any amended application with proper particulars, written submissions and additional evidence upon which they seek to rely. No further documents were filed by the applicants pursuant to these orders.
By orders made by Registrar van der Westhuizen on 29 November 2022, the second applicant was appointed litigation guardian for the third applicant. An order was also made adjourning the first respondent’s application for summary dismissal to 19 December 2022.
As stated, on 19 December 2022, Registrar van der Westhuizen heard and determined the first respondent’s summary dismissal application. He ordered that the applicant’s application be dismissed pursuant to rule 13.13(1) of the Rules, and that the first and second applicants pay the first respondent’s costs in a fixed amount.
By this present application, filed on 28 December 2022, the applicants seek a review of these orders. It was conceded for the Minister at the hearing before me that the application was filed within time.
At the hearing before me in relation to this application, the applicants appeared on their own behalf and were assisted by an interpreter in the Urdu and English languages. The applicants indicated that they speak and understand English and indeed made submissions to the court in English. The interpreter interpreted the submissions made by the Minister for the applicants.
SUMMARY DISMISSAL PRINCIPLES
Rule 13.13(a) of the Rules relevantly provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has not reasonable prospect of successfully prosecuting the proceeding or claim …
As stated, a review of a decision of a Registrar is to be conducted as a hearing de novo. Consequently, it falls to this court to determine the first respondent’s summary dismissal application afresh.
The principles by which a summary dismissal application are to be determined are well settled.
In Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473, when considering the equivalent provision in the Federal Court of Australia Act1976 (Cth),[17] Perry J relevantly summarised them as follows at paragraph [7]:
(a)the respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of succeeding;
(b)the pleadings disclose no reasonable cause of action and that such deficiency is incurable;
(c)section 31A sets a lower threshold than the previous test for summary dismissal although the power to summarily dismiss must still be exercised cautiously given the early stage at which it is being sought;
(d)an assessment of the prospects of a claim involves ‘the making of value judgements in the absence of a full and complete factual matrix and argument’; and
(e)the determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence, however it requires an assessment of the available material to determine whether there is a real question of law or fact that should be decided at trial.[18]
[17] See Federal Court of Australia Act 1976 (Cth), s 31A.
[18] Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (citations omitted).
It is also well settled that the power to summarily dismissal a proceeding ought be exercised with some caution, given that it brings to an end an applicant’s right to have their dispute judicially determined at a preliminary stage in proceedings.
GROUNDS OF REVIEW
Applying these principles, the question for this court is therefore whether the applicants have reasonable prospects of success in relation to any of the grounds of review raised in their initiating application filed on 18 March 2022.
In the application seeking review of the Registrar’s decision, the applicants have raised a number of other matters. I will address each of these matters in turn.
As the initial grounds of review are repeated in the application for review of the Registrar’s decision, for ease of reference, I will address the matters raised in the latter application.
Grounds 1, 2 ,3, 10 and 11
Grounds 1, 2, 3, 10 and 11 take issue with the reasoning and decisions made by the Registrar. As this is a hearing de novo, it is not necessary or appropriate for this court to consider those matters.
Ground 4
Ground 4 asserts that the Tribunal did not consider whether the first applicant met the requirements of clause 187.212 of Schedule 2 to the Regulations.
This was a criterion that the applicant had to meet in addition to the criterion in clause 187.233(3). Therefore, the Tribunal was not required to consider whether the first applicant met clause 187.212 if she did not meet clause 187.233(3). Moreover, compliance with clause 187.212 of the Regulations could not remedy the first applicant’s non-compliance with the criteria set out in clause 187.223(3).
This ground therefore has no reasonable prospects of success.
Ground 5
Ground 5 claims that the Tribunal failed to have regard to the fact that the first applicant continued to work. This is not relevant to the consideration of whether or not the criteria in clause 187.233(3) was met. It is therefore not clear what this is a reference to, but in any event, the applicant did not make any claims relating to her continuation of her work. Indeed, when provided with the opportunity to provide further information to the Tribunal, other than that lodged with the initial application, the applicants did not do so.
In any event, even if the applicant did continue to work for the sponsor, this could not cure the defect caused by the absence of an approved nomination as required by clause 187.233(3). This ‘ground’ therefore has no reasonable prospects of success.
Ground 6
Ground 6 effectively restates ground 1 in the applicants’ initiating application. It states:
6.The Administrative Appeals Tribunal did not apply criteria for a Subclass 187 to refuse to grant the visa applicant a RSMS Subclass 187 visa under the Migration Act 1958 (the Act) and made legal error.
The Tribunal correctly identified the criteria in clause 187.233 as the criteria which needed to be satisfied to grant the applicants a visa. At paragraphs [10] to [12] of the decision record, the Tribunal correctly identified that the first applicant needed to be the subject of an approved nomination for the visa to be granted.
In reviewing the delegate’s decision, the Tribunal had no power to grant the visa if the criteria in clause 187.233 were not met. Given that the sponsor nomination had been refused, the Tribunal had no other option but to refuse the applicant’s visa application on review.
Ground 6 therefore has no reasonable prospects of success.
Ground 7
Ground 7 repeats ground 2 in the applicant’s initiating application. It provides that the Tribunal ‘did not consider the material provided and error made by the delegate of the Minister’.
It was submitted for the Minister that without further particulars identifying the alleged error, this ground has no reasonable prospects of success. There is much force to this submission. But even if one were to consider this ground at its highest as a claim that the Tribunal failed to have regard to relevant material before it, it has no reasonable prospects of success on the basis that in the absence of an approved nomination, the requirements of clause 187.233(3) were not and could not be met.
The only evidence that could have cured this defect was an approved nomination. There was no approved nomination before the Tribunal. Moreover, the Tribunal gave the applicants an opportunity to put further material addressing this crucial issue before it and the applicants chose not to do so.
Further, to the extent that this ground takes issue with the manner in which the Tribunal considered the delegate’s decision, it misconceives the Tribunal’s function on review. The Tribunal conducts a hearing de novo. It considers the material before it afresh to determine whether or not the preconditions for the granting of a visa have been met. It is not the role of the Tribunal to review the delegate’s decision for error.
Finally, for completeness, to the extent that this ground could be understood as raising grounds of review in relation to the delegate’s decision, this court does not have the power to review a decision of the delegate.
Ground 7 therefore also has no reasonable prospects of success.
Grounds 8 and 9
Ground 8 refers to the alleged failure by the delegate of the Minister to consider Ministerial Direction No 69. That Ministerial Direction relates to student visas and has no relevance to the visa which the applicants have applied for in this instance.
Moreover, to the extent that it raises a concern about the delegate’s actions, this court, as previously stated, does not have the power to review the delegate’s decision. This ground has no reasonable prospects of success.
Ground 9 alleges that the Tribunal refers to documents provided by the applicants prior to the hearing, that the Tribunal relied upon these documents, but that the applicant had not referred to these documents during the course of giving evidence at the hearing. This is similar to, although not in identical terms as, ground 4 in the initiating application. Ground 4 in the initiating application refers to a comment by the Tribunal in ‘paragraph 46’ of its decision record. There is no ‘paragraph 46’ of the Tribunal’s decision record, which only contains 25 paragraphs.
Moreover, the substance of the comments attributed to the Tribunal in ground 9 is not reflected in the Tribunal’s decision record. It seems that this paragraph is referencing a Tribunal decision in another matter and is not relevant to this matter.
Consequently, neither ground 8 or 9 have any reasonable prospects of success.
Ground 12
Ground 12 alleges an error by the Tribunal in failing to comply with the natural justice requirements of section 424 of the Act. Section 424 of the Act relates to the Tribunal’s review of Part 7 reviewable decisions regarding protection visa applications. The equivalent provision in relation to Part 5 reviewable decisions, being the type of decision in this matter, is section 359. Both sections 424 and 359 relate to the circumstances and manner in which the Tribunal may seek information that it considers relevant to the matter under review.
As the dispositive issue in this case was whether the applicants were the subject to an approved nomination at the relevant time, the only information that would have been relevant to that issue was the existence of an approved nomination. Section 359 therefore does not apply and there has been no breach of that section.
Consequently, ground 12 does not have any reasonable prospects of success.
Ground 13
By ground 13, the applicants allege that there would be substantial injustice to her and her family if the court does not grant them the relief sought. The applicants also refer to compelling and compassionate grounds that arise in this case and the impact that this situation has had on the first applicant’s mental health.
This ground is not a proper ground of review and has no reasonable prospects of success.
Additional matters raised
At the hearing before me, the first and second applicants were invited to respond to the Minister’s submissions. As stated, they appeared representing themselves and were assisted by an interpreter, but in making their submissions, they spoke on their own behalf in English and, respectfully, were able to make coherent submissions.
The first and second applicants submitted that in progressing their visa applications, they provided all information requested of them, they did everything that was required, as did the sponsor, but for some reason which they do not understand, their visa application was refused. They further stated that they feel that the Tribunal decision refusing the nomination and the Tribunal decision refusing their visa was wrong. From their perspective, they met all of the relevant requirements and ought to have been granted the visa.
Whilst the applicant’s concerns are understandable, they do not give rise to any arguable jurisdictional error. For the reasons set out above, the applicants did not meet the criteria for the visa. The refusal of the sponsor’s nomination and the affirmation of that decision was fatal to the applicants’ visa application. They did not meet the requirements of clause 187.233(3), and as such, their application for judicial review has no reasonable prospects of success.
FUTILITY
In addition, as submitted by the Minister, it would also be futile for this matter to be remitted to the Tribunal. The absence of an approved nomination would mean that the Tribunal, even if the matter were remitted, would not be able to come to any different view.
CONCLUSION
For each of these reasons, the orders made by the Registrar summarily dismissing the applicants’ application remain appropriate.
I therefore dismiss the application for a review of the Registrar’s decision and order that the first and second applicants pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 22 March 2023
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