Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 24
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 24
File number(s): MLG 649 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 January 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 – Regional Employer Nomination (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 363, 476
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 187.233, 187.311
Cases cited: Agar v Hyde (2000) 201 CLR 552
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Bechara v Bates [2021] FCAFC 34
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 18 November 2022 Date of hearing: 18 November 2022 Place: Melbourne Solicitor for the Applicants: The Applicants appeared in person Solicitor for the First Respondent: Mr A Gardner of Minter Ellison
Table of Corrections 31 January 2023 In the orders, the name of the second applicant has been amended to reflect the correct name of ‘Sahib Singh’. ORDERS
MLG 649 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHARANJIT KAUR
First Applicant
SAHIB SINGH
Second Applicant
PAAVANJOT SANDHU (and another named in the Schedule)
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:
24 January 2023
THE COURT ORDERS THAT:
1.The applicants’ application for review of a Registrar’s decision filed on 12 October 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 decision made by Registrar Van der Westhuizen on 4 October 2022.
The application before the Registrar was an application by the first respondent for summary dismissal of the applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 8 March 2022.
Relevantly, by his decision, Registrar Van der Westhuizen made orders:
(a)summarily dismissing the applicant’s application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’); and
(b)for the first and second applicants to pay the first respondent’s costs of the proceeding fixed in the sum of $3,930.
The third and fourth applicants in this proceeding are the children of the first and second applicants. By his orders of 4 October 2022, Registrar Van der Westhuizen also made orders appointing the first applicant as the litigation guardian of the third and fourth applicants. At the hearing before me, the first applicant appeared on behalf of herself and each of the other applicants. In an exchange with me, she confirmed that she did not object to orders being made that the first and second applicants be appointed litigation guardians for the third and fourth applicants. Nor was any objection taken by the applicants to orders made to amend the name of the first respondent to reflect his current title.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo.
The task of this court therefore is to consider the first respondent’s application for summary dismissal afresh. This approach is consistent with the principles outlined by the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34.
Background
The applicants are citizens of India.
Application for subclass 187 visa on 31 January 2017
On or about 31 January 2017, an application for a Regional Employer Nomination (Class RN) (subclass 187) visa (‘subclass 187 visa’) was made, listing the first applicant as the ‘primary applicant’ and the second to fourth applicants as ‘migrating family members’.[1] This application was made in the Direct Entry stream on the basis of the first applicant’s employment with The Trustee for the AMJK Unit Trust (‘the sponsor’) in the nominated occupation of ‘Pastry Cook’.[2]
[1] Court book at page 25 and following; Court book at page 129.
[2] Court book at page 34.
Refusal of nomination on 17 August 2018
On 17 August 2018, the first applicant was advised by letter by the Department of Home Affairs (‘the Department’) that the nomination submitted to the Department by the sponsor had been refused, and that this meant that her application for the subclass 187 visa could not be approved.[3] By this letter, the Department further advised the first applicant that in these circumstances, she had the option of withdrawing her application and that if she did not respond within 28 days and she did not withdraw her application, then her application would be refused.
[3] Court book at page 142.
Refusal of subclass 187 visa application on 13 November 2018
The applicants did not respond to this invitation and on 13 November 2018, the first applicant was notified by letter that her application for a subclass 187 visa had been refused by reason of her failure to satisfy the provisions of the Migration Regulations 1994 (‘the Regulations’).[4] By this letter, the Department also indicated that the applications of the second to fourth applicants had been refused, again due to their failure to satisfy the Regulations.
[4] Court book at page 147.
Attached to the Department’s letter of 13 November 2018 is a copy of the delegate’s decision record, which contains the delegate’s reasons for the decision to refuse the applicants’ application for a subclass 187 visa.[5] The delegate set out the terms of clause 187.233 of Schedule 2 of the Migration Regulations, which relevantly provides:
[5] Court book at pages 155 to 160.
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(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.
The delegate found that as the sponsor’s nomination was refused by the Department on 16 August 2018, the primary applicant did not meet the criteria in clause 187.233(3). As the secondary applicants were not a member of a family unit of a person who holds a subclass 187 visa, the secondary applicants did not meet the requirements of clause 187.311. On this basis, the delegate refused the applicants’ application for a subclass 187 visa.[6]
[6] Court book at pages 147 to 160.
Application for review at Tribunal on 30 November 2018
On 30 November 2018, the applicants applied to the Tribunal for a review of the delegate’s decision.[7] The applicants were invited to attend a hearing before the Tribunal by telephone scheduled for 8 March 2018.[8]
[7] Court book at pages 161 to 169.
[8] Court book at page 180.
By letter dated 9 February 2022, the applicants were also invited to comment or respond to information which the Tribunal considered may be a reason or part of the reason for affirming the delegate’s decision under review.[9] Relevantly, the 9 February 2022 letter invited comment on the following:
The application for approval of the nominated position made by The Trustee for the AMJK Unit Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but they have now withdrawn that application for review. This means that the nominator’s application for the nominated position has not been approved.[10]
[9] Court book at pages 198 to 200.
[10] Court book at page 199.
The applicants were invited to provide a written comment or response by 23 February 2022. By email dated 22 February 2022, the first applicant sought an extension of time within which to provide a written response.[11] An extension was granted to 8 March 2022.[12]
[11] Court book at page 201.
[12] Court book at page 207.
By email dated 4 March 2022, the first applicant sought an adjournment of the hearing scheduled for 8 March 2022.[13] By letter dated 7 March 2022, that request was refused on the basis of the available information.[14]
[13] Court book at page 216.
[14] Court book at page 219.
The hearing proceeded by telephone on 8 March 2022 and on 9 March 2022, the Tribunal advised the applicants that the decision under review would be affirmed.[15]
[15] Court book at page 231.
Tribunal decision
The Tribunal’s reasons for its decision are set out at pages 235 to 239 of the court book.
After setting out the background, at paragraph [9], the Tribunal noted that the issue in the review application related to the subject of an approved nomination. The Tribunal noted at paragraphs [10] to [11] that clause 187.233 of the Regulations requires that the position to which the application relates must be the subject of an application for approval of a nomination in the Direct Entry Stream. Relevantly, clause 187.233 requires that the person who will employ the applicant is the person who made the nomination and the nomination has been approved and has not been subsequently withdrawn.
At paragraph [13], the Tribunal records that at the hearing, it provided information to the applicant about the status of the nomination made by The Trustee for the AMJK Unit Trust, in particular that it had been refused by the delegate, a review was lodged and the Tribunal determined it lacked jurisdiction as the employer had withdrawn the application for review.
At paragraph [15], the Tribunal records that it explained that in the absence of evidence that the position to which the application relates is the subject of an approved nomination, it was inclined to affirm the delegate’s decision. The Tribunal invited the applicant to respond to that proposition and at paragraph [16], the decision record notes that the applicant said ‘she did not have any submissions to make except to say that her nominating employer did not explain why he had withdrawn the nomination’.[16]
[16] Court book at page 237.
At paragraph [19], the Tribunal concluded that clause 187.233 was not satisfied and consequently, at paragraph [20], noted that the decision under review must be affirmed in relation to the primary applicant. Similarly, at paragraph [21], the Tribunal notes that as the primary applicant did not satisfied clause 187.233, the secondary applicants did not meet the requirements of clause 187.311 of the Regulations.
At paragraph [22], the Tribunal therefore affirmed the decision under review to not grant the applicants a subclass 187 visa.
Proceedings in this court
On 30 March 2022, the applicant filed an application seeking judicial review of the Tribunal’s decision.[17] In that application, the applicants sought orders quashing the Tribunal’s decision.
[17] Initiating Application filed on 30 March 2022.
In the response filed in these proceedings, the first respondent sought an order that the application be dismissed under rule 13.13 of the Rules on the basis that it has no reasonable prospects of success.[18]
[18] Response filed on 30 May 2022.
By order made on 20 June 2022, the summary dismissal application was listed for a hearing on a date to be fixed and orders were made for the parties to file submissions, a court book and any further evidence and any amended application properly particularising the application.[19] Ultimately, the summary dismissal application was heard and granted by Registrar Van der Westhuizen on 4 October 2022.
[19] Orders of Registrar Van der Westhuizen dated 20 June 2022.
As stated, the application before the court is an application for a review of the Registrar’s decision. That review is to be conducted as a hearing de novo.
In the proceedings before me, the Minister relied upon the written submissions filed on 20 September 2022. The applicants did not file an amended application, nor did they file any written submissions.
As stated, when the matter came on before me, the first applicant appeared for herself and for the other applicants. She was assisted by an interpreter, although at times, she made submissions on her own behalf in English and responded to questions directly on her own behalf also in English.
In summary, the applicant submitted that she only became aware shortly before the March 2022 hearing that the nomination had been withdrawn. It was in these circumstances that she says that she requested additional time to prepare for the hearing. The first applicant submitted that if she had been given additional time, there may have been something that could have been done. For example, she said that one possibility may have been for the nominator to make a fresh nomination.
In addition, the applicant submitted that she and her family have no other option for a visa to remain in Australia other than to pursue this matter. Indeed, she said that the only other option available to her was to go offshore and apply again for a visa. The first applicant indicated that in circumstances where she has done everything that she can to obtain a visa whilst in Australia, she has no faith that she will be able to obtain a visa from offshore.
Summary dismissal principles
As stated, the Minister seeks a dismissal of the applicant’s application under rule 13.13 of the Rules, which relevantly states:
The Court may order that a proceeding be … dismissed … 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 …
It is submitted for the Minister that the applicant’s application for judicial review has no reasonable prospects of success in circumstances where the primary applicant was not the subject of an approved nomination by an employer.[20]
[20] Minister’s Outline of Submissions filed on 20 September 2022 at paragraph [4].
It is well recognised that the power to summarily dismiss an application must be exercised cautiously as it brings an applicant’s right to have their claim judicially determined to an end at an early stage. As noted by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552 at paragraph [57]:
… The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[21]
[21] See, also, Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46] and Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].
Grounds of review
I will now turn to consider the grounds raised by the applicants.
Under the heading ‘Grounds of application’, the applicants set out the background to this matter and summarises the Tribunal decision at paragraphs [1] to [14]. Those paragraphs do not raise any information or claims which could properly be considered as raising grounds of review.
The applicants then go on to say:
15.The grounds of the application for my case to be re-considered by Federal Circuit Court as we were not provided enough time to provide more evidence.
16.The department failed to consider the other relevant matter in support of our case and previous immigration history and compliance with the visa condition was not considered.
17.I believe that we were not provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that we do not meet the criteria Regional Employer Nomination (Permanent) (Class RN) visas. However, we did mention these points in my Hearing statement and we also provided all the relevant and necessary evidence in the hearing.
18.Tribunal misconstrued condition 187.233 that the requirements set by the subclass 187 visa were not met by me. The clauses were wrongly assessed. My genuine intentions to apply Regional Employer Nomination (Permanent) Class RN) visas were denied by the tribunal.
19.My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
20.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia.
Grounds 1 to 14
As stated, grounds 1 to 14 recite the history of the matter and do not identify any alleged jurisdictional error.
Grounds 15 and 17
Grounds 15 and 17 each raise alleged jurisdictional error in the Tribunal’s refusal to adjourn the March 2022 hearing when requested to do so by the applicants.
The Minister concedes that the applicants only became aware that the sponsor had withdrawn the sponsorship application in February 2022, some four weeks prior to the Tribunal hearing.
Section 363(1)(b) of the Migration Act 1958 (Cth) permits the Tribunal to adjourn a review from time to time. This power is discretionary and must be exercised reasonably. In this case, the Tribunal considered the request for an adjournment but declined to adjourn the hearing.
Relevantly, at paragraph [6] of the Tribunal’s decision record, it sets out its reasoning in relation to the adjournment request. Relevantly, it formed the view that an adjournment was not necessary in circumstances where the issue for consideration was a ‘single-issue matter regarding whether the applicant is the subject of an approved nomination’.[22] Moreover, the Tribunal noted that the applicant had been on notice that the nomination had not been approved since November 2018 and therefore has had significant time to prepare.
[22] Court book at page 236.
In addition, the refusal to adjourn was qualified. In the letter to the applicant dated 7 March 2022, the Tribunal said:
If there is anything specific that you require more time to obtain, then you should provide more specific information for consideration. However, in the absence of that the hearing will proceed as scheduled tomorrow 8 March 2022.[23]
[23] Court book at page 219.
The applicant did not provide any further request for time to provide more specific information and the hearing proceeded the following day.
Having regard to the issue that the Tribunal had to determine, namely whether the applicant was the subject of an approved nomination and that the applicant had been on notice since November 2018 that the employer nomination had not been approved, there was a clear and intelligible basis for the refusal to agree to the adjournment request.
In those circumstances, grounds 15 and 17 have no reasonable prospects of success.
Ground 16
By ground 16, the applicant takes issue with the way in which the Department dealt with the application. The court does not have jurisdiction to review any decision made by the Department in this instance.[24] Therefore, to that extent, ground 16 has no reasonable prospects of success.
[24] Migration Act 1958 (Cth) s 476.
For completeness, I further note that to the extent that the applicant seeks to challenge the Tribunal’s decision on the basis that it failed to have regard to the applicants’ migration history and prior compliance with visa conditions, there is no evidence that those matters were before the Tribunal. Moreover, those matters are not relevant to a determination of whether the primary applicant meets the requirements of clause 187.233.
Ground 18
By ground 18, the applicant contends that the Tribunal misconstrued clause 187.233. It is not clear from her application, or indeed from the submissions made before the court, how it is said that the Tribunal misconstrued that provision. For the following reasons, I find that the Tribunal did not misconstrue clause 187.233.
That clause was the subject of consideration in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (‘Singh’). Relevantly, in that case it was submitted that properly construed, clause 187.233 contemplated that more than one nomination could be lodged in respect of the same position for the same applicant during the visa application process. This submission was rejected by the Court in Singh.[25]
[25] See Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82] per Mortimer J, with whom Bromberg and JJ agreed.
Relevantly, after setting out the terms of clause 187.233, Mortimer J said at paragraph [85]:
85.The only limit, the appellant contended, was that ‘the nomination’ would have to be for the same position and the same employer. Otherwise, there was no limit on how many times an employer could nominate a position and employee during the currency of the visa application. Inherent in the appellant’s argument appeared to be the contention that circumstances could change so that a formerly unsuccessful nomination for the same position and the same employee might later be approved by the Minister. Since reg 5.19 mandates approval in certain circumstances, it is not inconceivable that a previously unsuccessful nomination could, with various changes of circumstances, eventually be one which the Minister was required to approve. However that hypothesis does not assist the appellant in the construction of cl 187.233.
…
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 is in fact made, and about which the 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 a visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates … that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. … On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the ‘time of decision’ criterion can operate on merits review … This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
Applying this reasoning to the current circumstances, there is no basis on which it can be said that the Tribunal misconstrued clause 187.233, nor did it misapply it to the facts before it. The evidence is that the applicant was nominated by The Trustee for the AMJK Unit Trust for the position of pastry cook. In order to meet the criterion in clause 187.233, the nomination needed to be approved by the Minister. In this case, the Minister did not approve the nomination. The nominator sought a review of the Minister’s decision, but before the Tribunal could consider that application, the nominator withdrew. Consequently, the nomination was not an approved nomination for the purposes of clause 187.233.
For these reasons, ground 18 has no reasonable prospects of success.
Ground 19
By ground 19, the applicant takes issue with the brevity of the Tribunal’s reasons. The issue before the Tribunal was confined. The reasons addressed the relevant matters and explained the reasoning of the Tribunal. Ground 19 therefore has no reasonable prospects of success.
Ground 20
Ground 20 alleges that substantial justice was not done. It does not provide any particulars and on that basis alone would have no reasonable prosects of success.
Moreover, to the extent that this relates to the failure to grant an extension as sought, for the reasons articulated earlier, this ground has no reasonable prospects of success.
Futility
Ultimately, it is submitted for the Minister that even if there were reasonable prospects of success on the basis of one or more of the grounds of review raised in this application, the application ought nonetheless be dismissed on the basis that it would be futile to refer it back to the Tribunal as the Tribunal would be required to make the same decision in any event.[26]
[26] Minister’s Outline of Submissions filed on 20 September 2022 at paragraph [40].
I agree with this submission. The first respondent relies upon an affidavit of Ms Alexandra O’Grady affirmed on 15 September 2022.[27] Annexed to that affidavit at ACO1 is the Department records about the associated nomination. This record indicates that that the sponsor has not sought judicial review of the Tribunal decision that it had no jurisdiction on the basis of their withdrawal. In those circumstances, that decision could not be overturned. In that case, even if this matter were remitted, the Tribunal would have to make the same decision that it has in this case.
[27] Affidavit of Ms Alexandra O’Grady affirmed on 15 September 2022 and filed on 20 September 2022.
Therefore, in the circumstances of this matter, the applicant could not possibly meet the requirements of clause 187.233, even if the matter were remitted to the Tribunal.
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 sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Dated: 24 January 2023
SCHEDULE OF PARTIES
MLG 649 of 2022 Applicants
Fourth Applicant:
NIMRAT SANDHU
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4
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