Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1784
•4 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1784
File number(s): MLG 1304 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 4 August 2021 Catchwords: MIGRATION – Temporary Business Entry (Class UC) (subclass 457) visa – judicial review of decision of Administrative Appeals Tribunal – where first applicant applied for subclass 457 visa upon nomination and sponsorship by building company – where second and third applicants are joined as accompanying secondary applicants – where second applicant (husband) is sole director of sponsor company – where no information nomination for position of bricklayer had been approved – where Tribunal not satisfied criterion to grant visa was met – where Tribunal affirmed decision refusing sponsor’s application – whether application advanced a competent ground of review – whether applicant had standing to seek review – whether relief should be denied in application on the ground of futility – applicable principles – application refused Legislation: Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 474, 478 476
Migration Regulations1994 (Cth), cl 457.223
Cases cited: Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1785 Number of paragraphs: 28 Date of hearing: 29 July 2021 Place: Melbourne Counsel for the Applicant: Mr C. Oldham Solicitor for the Respondent: Sparke Helmore Solicitor-advocate for the Respondent Mr A. Cunynghame ORDERS
MLG 1304 of 2017 BETWEEN: SUKHWINDER KAUR
First Applicant
JASKARAN SINGH
Second Applicant
MASTER SUKHNOOR SINGH MANDAIR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The amended application dated 5 July 2021 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $5,000.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By amended application dated 5 July 2021, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 June 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Temporary Business Entry (Class UC) (subclass 457) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
These reasons for judgment should be read together with the reasons in MLG 1305/2017 in which judicial review is sought by Attractive Cleaning (Aus) Pty Ltd (Attractive Cleaning) which was the first applicant’s sponsor for the nominated occupation of bricklayer: Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1785. As appears from those reasons, the application for judicial review by Attractive Cleaning has been dismissed, including in circumstances where the sole director of Attractive Cleaning was the second applicant in this proceeding and who is the husband of the first applicant who was nominated for the occupation of bricklayer.
The application must be refused. In summary, the Tribunal was obliged to affirm the delegate’s decision in circumstances where there was not in place an approved nomination for the position the subject of the application. In this proceeding, the applicant accepted the success of her application was derivative of and depended upon the success of her sponsor’s application. That application has been dismissed. No competent ground of review has been advanced by the applicant in this proceeding. Had error been demonstrated in the decision or process of the Tribunal, relief would be refused on the ground of futility in circumstances where the relevant class of visa has been revoked. The criteria for the visa cannot now be met.
Background
The first applicant, Ms Kaur, a female Indian citizen aged 33 years, applied for the visa as the subject of a nomination made by her sponsor, Attractive Cleaning, a building company which trades as J S Homes and whose sole director, Mr J Singh, an Indian citizen aged 33 years, is the second applicant and husband of the first applicant. The second applicant and the parties’ child, aged 10 years, were joined as accompanying secondary applicants.
On 8 March 2015, the first applicant (applicant) applied for the visa.
On 23 March 2015, the then Department of Immigration and Border Protection (Department) transmitted a request to the applicants to enable assessment and consideration of the visa application. On 20 April 2015 and 27 May 2015, the Department invited the applicants to comment on information received by the Department indicating that her employer did not have an approved nomination for the applicant’s nominated position.
On 20 June and again on 13 September 2015, the applicant was nominated by Attractive Cleaning for the position of bricklayer, which nomination applications were refused on
12 August and 28 October 2015 respectively. The applicant sought a merits review by the Tribunal of those decisions and the Tribunal conducted a hearing on 11 May 2017 at which the applicant did not, but Mr Singh did, appear and give evidence.
At the relevant time, a criterion to be met for the grant of the subject visa was contained in cl 457.223(4)(a) of Sch 2 of the Migration Regulations 1994 (Regulations), which reads:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
It may be noted that on 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complimentary Reforms) Regulations 2018 which removed subclass 457 from the class of skills visas. In the result, with effect from the operative date of that amending regulation it has no longer been open to an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder.
On 28 October 2015, the Minister made a decision to refuse to grant the visa. The decisional record of the Minister’s delegate found the applicant did not meet the requirement in cl 457.223(4)(a) of the Regulations, as the applicant was not the subject of an approved nomination that had not ceased. The secondary applicants were refused a visa as they were not the members of a family unit of a person who held a visa.
On 30 October 2015, the applicants applied for review of the delegate’s decision.
On 4 April 2017, the Tribunal invited Attractive Cleaning to attend a hearing of its application for merits review, scheduled for 11 May 2017, to give evidence and present arguments. The applicants’ lawyers, who were appointed to assist them in the merits review of their visa application, advised the Tribunal that Ms Kaur wished to forgo the hearing, and for that reason, the Tribunal did not take any evidence from her. Only Mr Singh gave evidence.
On 18 May 2017, the Tribunal affirmed two decisions refusing nomination applications made by the applicant’s sponsor for approval of a position of bricklayer being the position relevant for the purposes of the applicant’s visa application, the subject of this proceeding.
On 25 May 2017, the Tribunal wrote to the applicants (via their representative) under s 359A of the Act. The Tribunal invited the applicant to comment on information regarding the Tribunal’s decision made on 18 May 2017 affirming the decisions to refuse the employer’s nomination applications. The Tribunal indicated that the information was relevant because it appeared the applicant did not meet the criteria for the visa under cl 457.223(4)(a) of Sch 2 to the Regulations. The applicants did not provide any response within the prescribed period.
Tribunal’s decision
On 13 June 2017, the Tribunal made a decision affirming the decision to refuse the application. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons) a copy of which were provided the applicants.
The Tribunal found the applicant had not provided any comments to the s 359A letter within the prescribed period and, no extension having been granted, the Tribunal found the applicant was not entitled to appear before the Tribunal: Act, ss 359C, s 360(3). The Tribunal decided to proceed to decision without taking any further steps: Reasons, [7]. The Tribunal considered that the issue on review was whether the applicant met the requirements of cl 457.223(4)(a).
In summary, the Tribunal found there was no information before it that a nomination for the applicant’s position had been approved and thus was not satisfied a criterion for the grant of the visa had been met. For that reason also, a criterion for the grant of the secondary visa requirements was also not met. The Tribunal considered the claims at [11]–[16]:
Requirement for an approved nomination
11. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
12. The visa application by Mrs Kaur (and the secondary applicants) was made on 8 March 2015, the visa application was refused on 30 October 2015 as Mrs Kaur was not the subject of an approved nomination as required by cl.457.223(4)(a). In the delegate’s decision record (a copy of which was provided to the Tribunal) the delegate noted that the nomination application by Attractive Cleaning (Aus) Pty Ltd ( the employer) was not approved as at 27 May 2015 and a further nomination application by the employer was finalised on 28 August 2015 – and the employer did not have an approved nomination.
13. On 18 May 2017 the Tribunal affirmed two decisions to refuse nomination applications made by Attractive Cleaning (Aus) Pty Ltd for approval for a position of Bricklayer relevant to Mrs Kaur. Under s359A the Tribunal invited the applicants to comment on this information, however the Tribunal received no response.
14. As at the date of this decision, there is no information before the Tribunal that a nomination of an occupation in relation to the primary visa applicant (Mrs Kaur) has been approved under s140GB of the Act. Therefore the Tribunal is not satisfied that the requirement in cl.457.223(4)(a) is met.
15. In relation to the secondary visa applicants, as the primary visa applicant does not meet the primary criteria the Tribunal cannot be satisfied that the secondary visa applicants meet the secondary visa requirement in cl.457.321. Therefore the decision in respect of the secondary visa applicants must also be affirmed.
16. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicants would be able to satisfy the specific criteria for those streams.
For those reasons, the Tribunal affirmed the decision to refuse the application.
Procedural History
On 20 June 2017, the applicants filed an application for judicial review of the Tribunal’s decision and an affidavit affirmed by Mr Singh to which was exhibited a copy of two sets of Reasons being the Reasons for the decision made on 13 June 2017 affirming the decision to refuse the applicant’s visa application and the Reasons for the decisions made on 18 May 2017 affirming decisions not to approve its nominations.
On 26 July 2017, the Minister provided a response opposing the application and seeking an order that the application be dismissed for want of jurisdictional error.
On 20 February 2018, a registrar of the Court made an order for the matter to be listed for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions.
On 5 July 2021, the applicants filed an amended application together with submissions by which the original grounds of review were abandoned and substituted with one ground of review.
On 9 July 2021, the Minister filed a submission which was responsive to the matters in the application.
Judicial review
The principles applicable to judicial review are addressed in Attractive Cleaning (Aus) Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1785 and should be read with these reasons.
Consideration
Applicant’s sole amended ground for review reads:
The Second Respondent fell into error by relying on a decision not to approve the Applicant’s nomination in circumstances where such decision was affected by jurisdictional error.
The applicant frames her application for judicial review in terms which recognise that its success or failure turns upon whether it has been demonstrated that the decision made refusing her sponsor’s application is affected by jurisdictional error. The application for judicial review made by Attractive Cleaning was heard at the same time and together with this application.
For the reasons given in proceeding MLG 1305 of 2017, the application for judicial review made by Attractive Cleaning has been refused.
Otherwise, I accept the submissions made by Mr Cunynghame, solicitor-advocate for the Minister that: the application does not advance a competent ground of review; the applicant has no standing to seek review of the decision made refusing the nomination applications (Act s 478(a)); irrespective of jurisdictional error in this matter (which there is not), relief would be denied in the present application on the ground of futility (in circumstances where the subject class of visa no longer exists) since the applicant can no longer be sponsored for a cl 457 visa and were the matter to be remitted to the Tribunal it would be obliged to affirm the decision; that is, the applicant would necessarily continue to be unable to satisfy the (non-existent) criterion of cl 457.223(4)(a) of the Regulations.
Conclusion
The application should be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Kelly. Associate:
Dated: 4 August 2021
1
1
0