Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 335

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 335

File number(s):	MLG 2425 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	11 May 2022
Catchwords:	MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa – application of clause 187.233 of schedule 2 Migration Regulations 1994 – where the applicant was not subject to an approved nomination – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Regulations 1994, sch 2, cls 187.233, 187.311
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of last submission/s:	11 November 2021
Date of hearing:	11 November 2021
Solicitors for the Applicant:	The Applicant appeared in person
Solicitors for the Respondent:	Ms Richardson of Sparke Helmore Lawyers

ORDERS

MLG 2425 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AMRITPAL KAUR
First Applicant

SATWINDER SINGH
Second Applicant

GURFATEH SINGH
Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	11 MAY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The applicants’ application be dismissed.

3.The applicants pay the first respondent’s costs 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

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 23 October 2017 by which the Tribunal affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection (‘the Minister’), to refuse to grant the applicants a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa (‘subclass 187 visa’).

   BACKGROUND

2. The first and second applicants are Indian citizens who married in India in 2009.  The third applicant is the child of the first and second applicants, born in Australia in 2017.

3. The first applicant arrived in Australia in 2008 on a student visa.  After completing her studies, on 16 September 2016, the first applicant applied for a subclass 187 visa with the assistance of a migration agent.  The second and third applicants also applied for a subclass 187 visa on the basis that they were members of the first applicant’s family unit.

   Subclass 187 visa application

4. The criteria for a subclass 187 visa are set out in Part 187 of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’). Relevantly, clause 187.233 of that Schedule provides:

   (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(12); 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 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 no more than 6 months after the Minister approved the nomination.

5. As is evident from the terms of clause 187.233, an applicant for a subclass 187 visa is required to be subject to an approved nomination.

6. It is not in dispute that on 16 May 2017, the nomination lodged by “Indian Ups Investment Pty Ltd” with respect of the first applicant’s application was refused.  On 17 May 2017, the first applicant and her migration agent were invited by way of email to comment on the refusal, however, no response was received to that invitation.

   Refusal of subclass 187 visa application on 7 July 2017

7. The delegate was consequently not satisfied that the requirements of clause 187.233, specifically, clause 187.233(3), had been met. On 7 July 2017, the delegate therefore refused the application on the basis that the first applicant failed to satisfy the criteria for a grant of a subclass 187 visa under clause 187.233.

8. As a consequence of the first applicant not meeting the requirements of clause 187.233, the delegate also refused to grant a subclass 187 visa to the second and third applicants on the basis that they were not a member of a family unit of a person holding a subclass 187 visa.

   Application to the Tribunal on 11 July 2017

9. The applicants applied to the Tribunal for a review of the delegate’s decision on 11 July 2017.  The Tribunal invited the applicants to attend a hearing on 16 October 2017.  The hearing was later rescheduled to 23 October 2017 at the request of the first applicant, who was attending a family function overseas on the originally scheduled hearing date.

10. On 23 October 2017, the first applicant appeared before the Tribunal, giving evidence on her own behalf, as well as on behalf of the second and third applicants, with the assistance of a Punjabi interpreter.

    Tribunal decision on 23 October 2017

11. On 23 October 2017, the applicants were advised by letter that the Tribunal affirmed the delegate’s decision not to grant the visa.

12. The Tribunal’s decision set out the nature of the application before it and the decision of the delegate which was the subject of the review application.

13. At paragraphs [10] to [12] of its decision record, the Tribunal set out the criteria for a subclass 187 visa under clause 187.233 of the Regulations. At paragraph [13], the Tribunal highlighted that the issue before it was whether the first applicant met the criterion in clause 187.233, namely, whether she was subject to an approved nomination.

14. The Tribunal went on to set out the first applicant’s claims and evidence, noting in particular her evidence given at the hearing before it on 23 October 2017 conceding that the nomination had been refused and that her proposed employer wanted to shut his business.

15. The Tribunal further noted that the first applicant gave evidence that she had begun the ‘Job Ready program’ and that she needed more time to undertake that program.  The Tribunal declined to delay its decision to allow the first applicant time to complete this program and apply for a different visa on the basis that the completion of the program could not materially affect its review in relation to the subclass 187 visa refusal.

16. At paragraphs [15] to [16] of its decision record, the Tribunal concluded that:

    [15]Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.

    [16]Therefore, cl. 187.233 is not met.

17. As the applicant did not meet the primary criteria, the Tribunal went on to find that the second applicant did not satisfy the secondary criteria under clause 187.311, namely, that he was a member of the family unit of a person who holds a subclass 187 visa.

18. For these reasons, the Tribunal determined to affirm the delegate’s decision to refuse to grant a subclass 187 visa to the applicants.

    Application for judicial review filed on 13 November 2017

19. On 13 November 2017, the applicants filed an application for judicial review of the Tribunal’s decision.[1]  That application contains three grounds of review which I will address in detail below.

    [1] Application filed on 13 November 2017.

20. The first and second applicants also filed affidavits in support of the judicial review application.  Relevantly, the substantive aspects of those affidavits were in identical terms and each deponent said:

    1.        I am not satisfied with the decision made by AAT/DIBP on my case.

    2.So that’s the reason I wish to apply in Federal Circuit Court of Australia for the right review of my application.[2]

    [2] Affidavit of Satwinder Singh affirmed and filed on 13 November 2017.

21. The first applicant represented herself at the hearing before me with the assistance of an interpreter.  The second and third applicants were not present, with the first applicant again appearing on their behalf.

22. The first applicant confirmed that notwithstanding orders made by Judge Wilson (as he then was) on 27 July 2018,[3] permitting the applicants to file an amended application with proper particulars, any affidavits upon which they wished to rely and written submissions, the applicants had not filed any further material in support of their application.

    [3] Orders of Judge Wilson dated 27 July 2018.

23. At the commencement of the hearing before me, and after explaining the role of this court on a judicial review application and turning to the specific grounds of review in her application, I invited the applicant to explain why she believed the Tribunal’s decision was affected by jurisdictional error.

24. Without in any way being critical of the first applicant, who was representing herself, not surprisingly, her submissions did not specifically address the three grounds of review in her application.  Rather, in response, she said that after her nomination was refused, her employer did not agree to apply to the Tribunal for review of the nomination refusal.  She further indicated that since the Tribunal decision on 13 November 2017, she has found another nominator and filed a separate application for a subclass 187 visa, which has been pending for the past two and a half years.

25. I will turn now to consider each of the grounds of review raised by the applicants in their application for review.

    GROUNDS OF REVIEW

    Grounds 1 and 2

26. Grounds 1 and 2 are set out as follows:

    1.I am the applicant, the second and third applicants are my partner and son.

    2.I and my family came to Australia in 2008 as the holder of student visa. After completing my studies, I applied for 187 visa.

27. As submitted by the first respondent, these grounds provide an outline of the applicants’ background and do not identify any alleged error in the Tribunal’s decision that may properly constitute a ground of review.

28. Grounds 1 and 2 therefore do not disclose any jurisdictional error in the Tribunal’s decision.

    Ground 3

29. Ground 3 is set out as follows:

    3.The Tribunal erred in misconstruing and interpreting clause 187.233.

30. The particulars then relevantly state:

    a.Tribunal erred by not assessing and considering the ability of first applicant to meet the primary criteria for the subclass 187 visa.

    b.Tribunal erred in not considering the circumstances at the time of application as the nominator was also stressed about the refusal of application and refused to lodge the file again.

    c.The tribunal failed to independently assess whether the primary applicant satisfies cl. 187.233.

    d.The applicants request to postpone the hearing was denied arbitrarily and without any basis in law and fact.

    e.Tribunal member refused and failed to consider that the applicant in view of her health condition was in no condition to give evidence and should have adjourned the hearing to another date.

31. Particulars (a) and (c) are interrelated insofar as they assert that the Tribunal failed to properly consider the ability of the first applicant to meet the primary criteria in clause 187.233 for a subclass 187 visa. As outlined above, the evidence before the Tribunal indicated that the nomination application had not been approved by a delegate of the Minister and, importantly, her employer did not seek review of the delegate’s decision. This was accepted by the first applicant at the Tribunal hearing, as well as at the hearing before me. In failing to have an approved nomination at the time of the delegate’s decision, it is apparent that having regard to the primary criteria for a subclass 187 visa in clause 187.233(3), the only decision available to the Tribunal in the circumstances was to affirm the decision under review.

32. Particular (b) appears to suggest that the Tribunal failed to take into account a relevant consideration, namely, that the nominator was stressed. This is not a matter that was relevant for the purposes of determining whether the applicant met the primary criteria for a subclass 187 visa. Once the Tribunal determined that the first applicant was not subject to an approved nomination for the purposes of clause 187.233(3), it was not required to go on to further consider the applicants’, or nominator’s, circumstances at the time of the application for the visa or application for review. Particular (b) does not disclose any jurisdictional error.

33. As to particulars (d) and (e), the applicants essentially contend that the Tribunal denied the applicants procedural fairness by refusing to adjourn the hearing due to the first applicant’s ‘health condition’.  In their particulars, the applicants state that the Tribunal refused this request despite the first applicant providing ‘medical certificates’ as evidence of her being ‘in no condition to give evidence’ at the hearing.

34. There is no basis for this assertion.  The first applicant did not in her oral submissions address this ground at all.  Nor is there any evidence in the court book or the supplementary court book which would suggest that she sought an adjournment on medical grounds and that such a request was refused.

35. Moreover, what is clear from the evidence is that the first applicant did request an adjournment of the hearing before the Tribunal, initially scheduled for 16 October 2017, on the basis that she was out of the country.  Ultimately, the Tribunal granted that adjournment and the hearing proceeded on her return on 23 October 2017.  The applicant did not raise her medical condition at either the Tribunal hearing or at the hearing before me.  On the contrary, the Tribunal’s decision record indicates that at the hearing, the first applicant gave evidence that the second applicant ‘was aware of the hearing but was happy for her [the first applicant] to give evidence on behalf of the [second and third] applicants’.[4]

    [4] AAT decision record dated 23 October 2017 at paragraph [8].

36. For each of these reasons, ground 3 is not made out.

    CONCLUSION

37. For each of these reasons, the applicants’ application should be dismissed with costs.  I therefore make the orders set out at the commencement of these written reasons.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       11 May 2022