Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 958
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 958
File number(s): MLG 2759 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) visa – whether applicants denied procedural fairness – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 359A, 476
Migration Regulations 1994 (Cth) cl 186.233
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 10 November 2022 Date of hearing: 10 November 2022 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person. Counsel for the Applicants: Ms Bosnjak appeared on behalf of the First Respondent. ORDERS
MLG 2759 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KAUR
First Applicant
MANPRIT SINGH
Second Applicant
EKAMJOT KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 November 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application be dismissed.
3.The First Applicant to pay the First Respondent’s costs fixed in the sum of $5000.00.
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
JUDGE HUMPHREYS
Introduction
The first applicant applied for an Employer Nomination (permanent) (Class EN) visa (“Employer Nomination”) on 15 November 2015. The second and third applicants were joined as secondary applicants to the visa application as part of the first applicant’s family unit. On 18 January 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Employer Nomination visas.
On 31 January 2017, the applicants applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. The Tribunal affirmed the decision of the delegate not to grant the applicants’ Employer Nomination visa on 20 August 2018.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
The administrative appeals tribunal decision
Paragraphs 1 to 13 provide the procedural history of the applicants’ visa applications.
At paragraph 8, the Tribunal notes that it wrote to the applicants on 27 June 2018, pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) inviting them to comment on or respond to information which the Tribunal considered would be the reason or part of the reason for it affirming the delegate’s decision. That information included the information received which indicated that the nominating entity has had its ABN cancelled and that the company has been de-registered, which the Tribunal explained is relevant to the requirement in cl 186.223(4) of the Migration Regulations 1994 (Cth) (“the Regulations”), which requires that the nominated position is still available to the applicant. The Tribunal noted that if it relied on the information, it may conclude that the position for which she was nominated by CS Universal PTY LTD is no longer available to her and that in the circumstances, she would not meet the requirements of cl 186.233 of the Regulations, and the decision under review may be affirmed.
At paragraph 9, the Tribunal records that the invitations was sent to an authorised representative of the applicants at the last address provided, in connection with the review. The Tribunal advised that if the comments were not provided by 11 July 2018, that the Tribunal may make a decision on the review, without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence.
At paragraph 10, the Tribunal noted that the review applicant has not provided the comments within the prescribed timeframe, and that no extension was granted.
The review applicant contacted the Tribunal on 26 July 2018, to enquire about the progress of the application for review. An officer of the Tribunal informed the review applicant that a letter was sent to her on 27 June 2018, inviting the applicants to comment. A case note records that the applicant informed the Tribunal officer that she did not receive the letter. The Tribunal requested that the applicants update their contact information and confirmed the applicants email address.
On 31 July 2018, the Tribunal wrote to the applicants to advise that although they had lost their right to a hearing, that the Tribunal had decided to delay making its decision on the review and that the applicants had until 3 August 2018 to provide any information that they wanted the Tribunal to consider.
At paragraphs 15 and onwards, the Tribunal considers the applicants claims and evidence.
At paragraph 18, the Tribunal found that the relevant nominated position was not available to the applicant and therefore, the applicant does not meet cl 186.223(4) of the Regulations. As cl 186.233(4) of the Regulations is not satisfied, the applicant does not meet cl 186.223 of the Regulations as a whole.
At paragraph 19, the Tribunal considered that, given it found that the first applicant did not satisfy the primary criteria for the grant of a Subclass 186 visa, the second and third applicants applications should not have been reconsidered as they were not members of a family unit of a person who had satisfied the primary criteria for the grant of the visa.
At paragraph 21, the Tribunal affirmed the delegate’s decision not to grant the applicants Employer Nomination.
Grounds of judicial review
In the applicants’ Initiating Application filed with the Court on 13 September 2018, the following is stated as the grounds of judicial review:
1. That we applied for a 186 visa with Sandeep Kaur listed as the primary applicant and Manprit Singh and Ekamjot Kaur (minor under 18) listed as the secondary applicants. This application was lodged on 15th November 2015.
2. Our 186 visa application was refused on 18th January 2017 by a delegate of the minister for immigration under s.65 of the Migration Act.
3. We applied for review of this decision by Administrative Appeals Tribunal (AAT) and the Tribunal made same decision and they affirmed the decision of the department. They affirmed the decision not to grant our 186 visas on the 20th August 2018.
4. We believe that both the AAT and Department of Home Affairs did not consider the facts, reasons and evidence we provided to support our application.
5. The unfair decision of the department and AAT will have a huge negative impact on our family's life and we would like Federal Circuit Court to consider this when looking at our case.
6. We think AAT has made jurisdictional error in making decision for our application and we would like the Federal Circuit Court to review this.
7. We would like the Court to find this jurisdictional error so that our application will be returned to the AAT for further reassessment.
8. After this we would like to be given fair chance to apply for another valid visa in Australia. We will follow all conditions and rules for this visa and respect all the laws of Australia like we have the whole time we stayed here.
9. We can provide the court any information they need to help us in this situation and we thank the court for taking time to consider our application.
The applicants’ submissions
The first applicant appeared before the Court on behalf of herself, husband and child. She was unrepresented. The first applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant that the respondent’s written submissions had served upon her and she understood them. The Court also ensured that the first applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the first applicant in support of her case.
The first applicant told the Court that after all the paperwork had been put in for her visas, the Company she worked for told her she needed to find another job.. Her migration agent told her all relevant documents had been submitted to the Tribunal and she did not need to attend the Tribunal hearing. This sort of allegation is not unfamiliar to the Court. Indeed, there appears to be evidence pointing to the systemic exploitation of those seeking employer support visas by unscrupulous employers and migration agents. That however does not change the invidious situation the first applicant finds herself and her family in.
CONSIDERATION
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it
The difficulty in this case is that the first applicant lacks an essential criteria for the grant of the visa sought. In order to be granted a Regional Employer Nomination visa, the applicant must have an approved employer nomination in order to satisfy cl 187.233 of the Regulations. It is common ground that the first applicant lacks such a nomination. In these circumstances, the Tribunal had no option other than to affirm the decision under review. Even if jurisdictional error exists (which is denied by the first respondent) it would be futile to remit the matter back to the Tribunal for further consideration as it would be required to make the same decision.
The first respondent submitted that the Court should not exercise its discretion in remitting the matter as it would be futile: (see; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609). The applicants’ claim cannot be cured by the lodging on a new nomination application: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82]-[90]). As there is no evidence that the nominator had sought judicial review of the nomination refusal, the applicant cannot satisfy cl 187.233 of Schedule 2 to the Regulations. The Court agrees with this submission.
In terms of the grounds of judicial review, it was submitted that grounds one, two, three, eight and nine simply contain statements of fact and are not grounds of judicial review. The Court agrees with this submission. They have no merit.
Ground four is an un-particularised assertion that the Department and the AAT did not consider the facts, reasons and evidence supplied to support the application. First, pursuant to
s 476 of the Migration Act 1958 (“the Act”) the Court has no jurisdiction to review the decision of the first respondent and or the delegate. The Court accepts this submission.
Second, precisely what facts, reasons and evidence is not particularised. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Third, the first respondent submits that on a fair reading of the Tribunal decision record, the Tribunal considered the material provided in support of the application for review, noting that the respondents did not reply to the s 359A letter. The Court agrees with this submission. Ground four has no merit.
Ground five is simply a complaint of the effect that decision of the Tribunal will have a ‘huge negative impact on the family’s life”. The applicants ask the Court to consider this when undertaking judicial review. Again, this is not a proper ground of judicial review. If anything it asks the Court to undertake impermissible merits review: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54]). Ground five has no merit.
Ground six is again an un-particularised assertion of jurisdictional error. For the same reasons as ground four set out above, it fails simply by reason of the lack of particulars and has no merit.
As the applicants are unrepresented the Court has perused the Tribunal decision record but is unable to detect any unarticulated jurisdictional error.
conclusion
Accordingly, the application must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 November 2022
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