Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 45
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 45
File number(s): MLG 1419 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 2 February 2023 Catchwords: MIGRATION LAW – applicant’s application for review of Registrar’s decision – hearing de novo of respondent’s application for summary dismissal – decision of Administrative Appeals Tribunal – Employer Nomination (Subclass 186) visa – application of clause 186.233 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 – where the Tribunal does not have discretion to waive requirements of clause 186.233 on compassionate or compelling grounds – finding that no reasonable prospects of success and remittal to the Tribunal would be futile – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 143
Migration Act 1958 (Cth), ss 379G, 395A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 13.13, 21.04
Migration Regulations 1994 (Cth) sch 2, cl 186.233
Cases cited: Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 24 January 2023 Date of hearing: 24 January 2023 Place: Melbourne Solicitor for the Applicants: The Applicants appeared in person Solicitor for the First Respondent: Ms B Ruscoe of Mills Oakley ORDERS
MLG 1419 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMARJEET KAUR
First Applicant
GURNAM SINGH
Second Applicant
ROHAN 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:
2 February 2023
THE COURT ORDERS THAT:
1.The applicants’ application for review of a Registrar’s decision filed on 20 December 2022 be dismissed.
2.The first and second applicants pay the first respondent’s costs of this application fixed in the sum of $650.00.
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:
Before the court is an application for a review of a decision made by Registrar Van der Westhuizen on 19 December 2022.
The Registrar determined an application by the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’), 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:
(a)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);
(b)the name of the first respondent be amended to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’; and
(c)the first and second applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,930.
The order for costs was made against the first and second applicants in circumstances where the third applicant is their child.
Rule 21.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’) provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Consequently, the issue before this court is whether the first respondent’s application for summary dismissal ought to be granted.
Background
The factual issues in this matter are not in dispute.
The first applicant is a citizen of India.[1] The second applicant is her husband, and as indicated, the third applicant is their child.[2]
[1] Court book at page 1.
[2] Court book at pages 3 and 5.
Application for subclass 186 visa on 20 July 2016
On 20 July 2016, the applicant applied for an Employer Nomination (Subclass 186) visa (‘subclass 186 visa’) under the Temporary Residence Transition stream.[3] The visa application was made with the assistance of registered migration agent.[4] The visa application was based on the first applicant’s employment with Satzas Pty Ltd (‘the sponsor’).[5]
[3] Court book at pages 1 to 16.
[4] Court book at pages 17 to 19.
[5] Court book at page 11.
On 25 July 2019, the nomination lodged by the sponsor was refused by a delegate of the Minister.[6]
[6] Court book at page 112.
Refusal of subclass 186 visa application
Subsequently, on 29 August 2019, a delegate of the Minister refused the applicant’s application for a subclass 186 visa on the basis that the first applicant was not the subject of an approved nomination and therefore did not meet the requirements of clause 186.223 of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
Relevantly, clause 186.233 of the Regulations requires that the following criteria to be met before a subclass 186 visa will be granted:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(10); and
(b)in relation to which the declaration mentioned in paragraph 1114B(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 made the nomination.
(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 person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(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.
In this instance, the applicants’ application for a subclass 186 visa was refused on the basis that clause 186.233(3) was not satisfied, namely, that the Minister had not approved the nomination.
Application for review to Tribunal on 17 September 2019
The applicants sought a review of the delegate’s decision by application to the Tribunal filed on 17 September 2019.[7]
[7] Court book at pages 116 to 118.
Subsequently, on 17 February 2022, the Tribunal invited the applicants to comment on or respond to the following information by 3 March 2022:
On 13 August 2019, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of SATZAS PTY LTD. On 5 October 2021, the Tribunal affirmed the Department’s decision to refuse the nomination. Consequently, the decision made by the Department of Home Affairs on 25 July 2019, to refuse the nomination, stands.[8]
[8] Court book at page 137.
The Tribunal’s letter of 17 February 2022 went on to explain the relevance of this information to the applicant’s visa application. In particular, the letter referred to the fact that the requirements of clause 186.223(2) of Schedule 2 of the Regulations requires that the Minister has approved the nomination, namely the nomination referred to in clause 186.223(1).
The Tribunal further states that if it relies on this information, it will make a finding that there is no approved nomination in respect of which the first applicant is the nominee and that the Tribunal may then conclude that the requirements of clause 186.223 were not met. The Tribunal also identified the relevance of this information to the secondary applicants.
On 22 February 2022, the applicants provided by email a new nomination application that had been lodged by a new sponsor, Ridgewater Projects Pty Ltd.[9] The applicants attached a letter from the Department dated 19 January 2022, confirming receipt of the nomination application.
[9] Court book at pages 139 to 142.
In response to the Tribunal’s letter of 17 February 2022, the first applicant then provided written submissions on 3 March 2022 in which she said:
I have been working for Satzas Pty Ltd from 2013 to 2019. He shut down the company. I understand that it might lead the application in a wrong direction. However, it was not our fault that the employer ceased his company. …
…
… I sincerely want the decision to be in our favour as we were not at any fault in the application. I have truly presented all correct information from my end and worked very hard every day.[10]
[10] Court book at pages 143 to 144.
The first applicant also attached various documents, including bank statements, tax statements and the like, which supported her evidence about her employment with Satzas Pty Ltd.[11]
[11] Court book at pages 145 to 252.
On 9 March 2022, the applicants were invited to attend a hearing before the Tribunal.[12] The hearing took place on 30 March 2022 and the applicants appeared with the assistance of an interpreter in the Punjabi and English languages.[13]
[12] Court book at pages 261 to 265.
[13] Court book at page 287.
Tribunal decision on 2 June 2022
On 2 June 2022, the Tribunal notified the applicants that it had decided to affirm the decision under review with the effect that the application for a subclass 186 visa had been refused.[14]
[14] Court book at page 285.
Tribunal decision
The Tribunal’s decision record is attached at pages 286 to 289 of the court book.
At paragraph [3] of the Tribunal’s decision record, the Tribunal referred to the criteria for the grant of a subclass 186 visa and noted that the primary criteria must be satisfied by at least one applicant and that the other members of the same family unit must satisfy the secondary criteria.
At paragraph [5], the Tribunal noted that:
5.The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, because there was no approved nomination.
At paragraphs [10] to [22], the Tribunal set out the procedural history of the matter and its considerations of the applicant’s claims and ultimately decided to affirm the decision under review not to grant the applicants a subclass 186 visa.
The dispositive issue before the Tribunal was whether the primary applicant was the subject of an approved nomination at the relevant time, being at the time of its decision. The Tribunal noted that it did not have a discretion to waive the requirements of clause 186.223 and that the criteria in that clause did not contain any discretionary factors, such as compassionate and/or compelling grounds.[15]
[15] Tribunal decision record dated 2 June 2022 at paragraph [15].
On that basis, the Tribunal concluded that:
18.On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 20 July 2016, the applicant was the subject of a nomination application by Satzas Pty Ltd, for the position of Painting Trades Worker. The Tribunal further finds that the nomination application lodged by Satzas Pty Ltd was refused by the Department on 25 July 2019, and although Satzas Pty Ltd sought review of the refused nomination, on 5 October 2021 the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination.
19.As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl 186.223(2) is not met. It follows that cl 186.223 is not met.
…
21.The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second and third-named applicants do not satisfy the secondary criteria for the visa. Consequently, the second and third-named applicants do not satisfy cl 186.311 and the decision under review must be affirmed in respect of them.
Proceedings in this court
It is these findings which are the subject of the applicant’s application to this court.
In the applicant’s initiating application filed on 23 June 2022, under the heading ‘Grounds of application’, the applicants say:
I, as main applicant (with my husband … and son … as the dependent applicants) applied for Employer Nomination (Permanent) (Class EN) visa on 20 July 2016. The department of immigration refused our visa application on 29 August 2019. On 1 June 2022 Administrative Appeals Tribunal affirmed the decision. Decision of Administrative Appeals Tribunal made on 1 June 2022 in our case number 1926114 is affected by jurisdictional errors. Grounds of our application are as below:
1.The department of immigration refused our visa application on 29 August 2019. This refusal was premature as my employer’s application seeking review of decision of department of immigration to refuse its nomination was pending. The Tribunal took no note of this or disregarded this important fact. My employer’s nomination was refused by the department of immigration on 25 July 2019. My employer applied for review of this decision. The review was not finalised until 5 October 2021. My employer was stuck overseas because of Covid and hence could not properly deal with his review application, which resulted in the Tribunal affirming the refusal of nomination.
2.Any decision taken by the department of immigration in relation to my visa application before 5 October 2021, being the date when refusal of my employer’s nomination by the Tribunal was affirmed, was premature.
3.The Tribunal did not take into account the almost six (6) years of my employment with the employer who had sponsored me for my visa, as a painter. I worked with my employer from October 2013 to 2019 until my employer closed his business. The closing of business was out of my control.
4.The Tribunal did not give me time to secure alternate employment in my field and related new nomination, after my previous employer closed its business.
5.The Tribunal did not take into account my work history in Australia since my coming to Australia in July 2009.
6.The delay by the department of immigration in determining my application was a major factor in refusal of my visa. I had applied for the visa in July 2016. Normally my application should have been determined in 6 – 12 months, as was the case with applications for some other people I knew. If my application had been decided in 2017 or even in 2018, I would have received my visa I was then working with my employer as per employer’s nomination. The Tribunal ignored this main factor.
7.I was working for the employer when I made my visa application in July 2016. I continued working in the nominated employment for my employer as per my visa condition with a home of successful outcome in relation to my permanent visa application.
8.The Tribunal failed to take into account or failed to give enough weight to the fact that the refusal of my employer’s nomination relevant to my visa application was completely out of my control.
9.I was denied natural justice and procedural fairness. In addition to the above factors, the Tribunal did not enough weight (sic) to my submission to the Tribunal on 30 March 2022. The Tribunal also did not take into account the hardship on me and my family as a result of decisions of the immigration department and the Tribunal. We have been in Australia since 2009. At that time my son was one and a half years’ old. Now my son is now 14 and a half years’ old. My son will not be able to adjust in India. My husband and I have given Australia our prime years and contributed with our hard work. Refusal of my visa application is devastating for the whole family.
The first respondent seeks the summary dismissal of the applicant’s application pursuant to either section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’) or rule 13.13(a) of the Rules.
Before I turn to consider the principles which apply to a summary dismissal application such as this and the application of those principles to this matter, I note that orders were made on 19 September 2022 permitting the applicants to file and serve any amended application, affidavit evidence and written submissions upon which they sought to rely. They have not taken up that opportunity.
Summary dismissal
Section 143(2) of the FCFCOA Act provides that the court may give judgment for one party against another in relation to the whole or part of any proceeding if:
(a) the first party is defending the proceeding …; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding …
Relevantly, section 143(3) of the FCFCOA Act further provides that:
(3) For the purposes of this section, a defence … need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
In addition, rule 13.13(a) of the Rules provides that the court may dismiss a proceeding if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
As stated, this is a hearing de novo. I must therefore consider the first respondent’s application for summary dismissal afresh.
The principles by which a summary dismissal application are to be determined 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),[16] Perry J relevantly summarised them as follows at [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 judgments 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.[17]
[16] See Federal Court of Australia Act 1976 (Cth), s 31A.
[17] Przybyloswski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (citations omitted).
Applying these principles, the question for this court is therefore whether the applicants have reasonable prospects of success in their application for judicial review of the Tribunal’s decision. As stated above, nine ‘grounds of review’ have been raised.
I will deal with each of these in turn.
Grounds of review
Grounds 1 and 2
Grounds 1 and 2 relate to the decision of the ‘department of immigration’ and allege that it was premature to refuse to grant the applicants’ visa in circumstances where the first applicant’s sponsor had sought a review of the decision to refuse their nomination.
To the extent that these grounds relate to the decision of the delegate, this Court does not have power to review that decision.[18]
[18] Migration Act 1958 (Cth), ss 476(2) and (4).
Furthermore, to the extent that ground 1 relates to the Tribunal’s failure to have regard to the fact that the sponsor’s review application was pending, and that this is in some way a failure to take into account a relevant consideration, that ground also has no reasonable prospects of success. Firstly, by the time that the Tribunal made its decision, the nomination review application itself had been reviewed and affirmed by the Tribunal (differently constituted). But in any event, the dispositive issue before the Tribunal was whether the applicants satisfied the requirements of clause 186.223 at the time of its decision. They did not, and therefore the Tribunal made the only decision reasonably open to it.
In those circumstances, neither ground 1 nor 2 has any reasonable prospects of success.
Grounds 3, 5, 8 and 9
Grounds 3, 5, 8 and 9 similarly assert that the Tribunal failed to take into account various relevant matters, namely:
(a)the primary applicant’s lengthy work history both with her sponsor, and more generally, in Australia;
(b)the fact that the refusal of her sponsor’s nomination and the closing of her sponsor’s business were not within her control;
(c)the hardship on her family that the visa refusal had, in particular, as a consequence of the fact that the applicants had spent over 13 years in Australia, that her son had grown up here and would not be able to adjust to life in India, and that the refusal of the visa application was devastating to her family.
As previously discussed, these matters were not relevant to the Tribunal’s consideration of whether the applicant’s met the requirements of clause 186.233 of the Regulations. As noted by the Tribunal, which acknowledged the distress to the applicants and the hardship they might face as a consequence,[19] the only issue before the Tribunal was whether the requirements of clause 186.233 were met. Those requirements do not contain any discretionary considerations which would have allowed the Tribunal to consider the matters identified by the applicants in grounds 3, 5, 8 and 9. Consequently, these grounds have no reasonable prospects of success.
[19] See Tribunal decision record dated 1 June 2022 at paragraph [22].
Ground 4
Ground 4 alleges that the Tribunal did not give the applicant sufficient time to secure alternative employment and a new sponsor. Again, this ground misconceives the task before the Tribunal. Clause 186.233(3) requires an assessment against the original nomination which accompanied the visa application. It cannot be assessed against a subsequent nomination.
This issue was considered by her Honour Mortimer J (with whom Bromberg and Jagot JJ agreed) in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105. In that case, the court was considering a similar provision in clause 187.233 of the Regulations. Relevantly, at paragraph [88], her Honour said:
88.… In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
…
90.… The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
Applying this reasoning to the present matter, the issue in this case was whether the first applicant had an approved nomination. At the time the Tribunal considered the matter, the employer nomination had been refused and this decision was affirmed by the Tribunal following a separate review application. This deficit could not be remedied by the applicant obtaining alternative employment and an alternative nomination by a different employer.
For each of these reasons, ground 4 also has no reasonable prospect of success.
Grounds 6 and 7
Grounds 6 and 7 relate to the ‘delay’ in the Department’s consideration of the applicant’s visa application and that the Tribunal did not give due consideration to the fact that had her application been considered in 2017 or 2018, it would have been determined in her favour.
This too misconceives the matters that the Tribunal had to have regard to. At no stage had the Minister approved the employer nomination made by the applicant’s sponsor. As such, at no stage did the applicant meet the requirements of clause 186.233 of the Regulations.
These grounds otherwise do not disclose any jurisdictional error on the part of the Tribunal and have no reasonable prospects of success.
Ground 9
Ground 9 also alleges a denial of procedural fairness and natural justice. No particulars are provided in support of this assertion. However, the Tribunal clearly complied with its statutory procedural fairness obligations. The applicant was invited to attend a hearing on 30 March 2022, which they did, and at which they presented evidence and arguments.[20]
[20] See Tribunal decision record dated 1 June 2022 at paragraph [6].
Moreover, by letter dated 17 February 2022, the Tribunal invited the applicants to comment on information, which if accepted, would be adverse to the applicants. This letter complied with the requirements of section 395A of the Act insofar as it:
(a)identified the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review;
(b)it explained the relevance of the said information to the applicants;
(c)it was sent to the applicants in accordance with the requirements of section 379G(1) of the Act; and
(d)it provided the applicants with a prescribed period of time within which to respond.
For each of these reasons, this ground has no reasonable prospects of success.
Futility
For completeness, I note that it was further submitted by the Minister that even if there was a jurisdictional error in the Tribunal’s decision, it would be futile to remit the matter to the Tribunal in circumstances where the Tribunal could not make a different decision. That submission must, respectfully, be accepted.
Conclusion
For each of these reasons, the applicant has no reasonable prospects of success in establishing jurisdictional error on the part of the Tribunal.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 2 February 2023
2
1
0