Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 875
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 875
File number(s): MLG 2669 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 30 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal - subclass 457 (Temporary Work (Skilled)) visa - cancellation of visa – whether refusal of adjournment until after Applicant’s pending sponsorship nomination – whether the Tribunal disregarded section 48 of the Migration Act 1958 – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 48, 48(1)(b)(ii), 140GB, 116(1)(b), 363(1)(b)
Migration Regulations 1994 (Cth) rr 2.72, 2.73
457.223(4)(a), Part 457 of Schedule 2
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) items 79 and 80 of Schedule 1
Cases cited: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868
Number of paragraphs: 38 Date of last submission/s: 25 March 2021 Date of hearing: 18 March 2021 Place: Heard in Melbourne, delivered in Dandenong Counsel for the Applicants: Mr Young Solicitor for the Applicants: Shamser Thapa & Associates Counsel for the Respondents: Ms Mills Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 2669 of 2016 BETWEEN: INDERJIT KAUR
First Applicant
HARWINDER SINGH
Second Applicant
JAGROOP SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The Application filed on 8 December 2016 be dismissed.
2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 16 November 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the primary Applicant’s (‘Applicant’) subclass 457 (Temporary Work (Skilled)) visa (‘visa’). The second named applicant is the Applicant’s spouse, and the third named applicant is the Applicant’s son.
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is an Indian national. The Applicant and the second named applicant arrived in Australia in 2008 as the holders of student visas.
In October 2014, the Applicant was sponsored and nominated by Sumit Enterprises Pty Ltd (‘the sponsor’). She was granted the visa.
The Department of Immigration and Border Protection (‘Department’) was subsequently notified by the sponsor that the Applicant’s employment with it had ended on 18 September 2015.
The Applicant submitted to the Tribunal that in December 2015, Dhillons Green Olive Pty Ltd lodged a nomination application in respect of the Applicant. This business was subsequently acquired by the Applicant’s husband who lodged a new sponsorship nomination application for the Applicant. That application was refused in June 2016.
On 16 February 2016, the Department wrote to the Applicant giving notice of intention to consider cancellation of the visa under section 116(1)(b) of the Migration Act 1958 (‘Act’), due to a breach of condition 8107 of the visa (Court Book 19). It was alleged in the letter that the Applicant breached condition 8107 by her cessation of employment with the sponsor for a period exceeding 90 consecutive days.
On 15 June 2016, a Delegate of the Minister (‘Delegate’) cancelled the Applicant’s visa, pursuant to section 116 of the Act.
On 19 June 2016, the Applicant applied to the Tribunal for review of the Delegate's decision. A pre-hearing submission was made on 31 October 2016 by the Applicant’s legal representative.
On or around October 2016, Bawa Sahib Pty Ltd (‘BW’) applied to the Department for approval of a nomination in respect of the Applicant (‘BW Application’).
On 8 November 2016, the Applicants attended a Hearing before the Tribunal. Post hearing submissions were made on 15 November 2016. Among other things, the Applicant asked the Tribunal to delay making a decision pending the outcome of the BW Application.
The Tribunal declined to delay making decision and on 16 November 2016, the Tribunal affirmed the decision to cancel the visa.
The Applicant filed the application for review (‘Application’) and an affidavit in support in this Court on 8 December 2016.
On 10 July 2017, the Department refused to grant the BW Application.
Both parties filed written submissions and written supplementary submissions in the lead up to the hearing before me, and the Minister filed a Court Book. The Court also accepted into evidence the affidavit of Jolanta Kowalewska dated 23 February 2021 (Exhibit M1). Finally, the Court raised a matter with the parties after the conclusion of the hearing, and the Court received responses from both of the parties, which have been taken into account.
THE APPLICATION
The Application contains four grounds of review. Ground 4 was not pressed during the hearing. Further, Grounds 1 and 2 were argued together.
I now turn to deal with each of the grounds and the submissions of the parties.
Grounds 1 and 2
Grounds 1 and 2 of the Application are as follows:
1.The Second Respondent made jurisdictional error by failing to correctly consider the application of the principles expressed in Minister for Immigration and Citizenship v Li [2013] HCA 18, in relation to the exercise of the power and discretion under s363(1) (b) of the Act to adjourn review of the decision.
2.Further or in the alternative to ground 1 above, the Second Respondent at paragraph [52] applied a rule or policy without regard to the circumstances of the case and without any finding or evidence that the Applicant was “continuing to seek nomination from different business”.
The above grounds of review effectively take issue with the Tribunal’s decision to refuse an adjournment sought by the Applicant. The Applicant was not working in a position that had been approved by the Department at the time of the Tribunal hearing. An application had, however, been lodged with the Department by BW in respect of the Applicant in the weeks preceding the Tribunal hearing. The Applicant submitted to the Tribunal that the matter should be held open ‘until a decision on the review applicant’s pending nomination application has been made by the Department’. The Applicant further submitted that she was ‘not asking the Tribunal to continuously hold the application open so that if this nomination fails they can lodge another, rather she is asking that the Tribunal delay making a decision until the outcome of the pending nomination is known’. The Applicant submitted that the approval of the new nomination while not the only factor, was a ‘critical factor’ to her application and that the ‘amount of time requested to await a decision on the nomination application, as evidenced above, is not a protracted, inordinate or unreasonable amount of time’.
The request for an adjournment was refused. At paragraph [52] of its reasons, the Tribunal stated, among other things:
I find that it is uncertain if and when the applicant will become the subject of an approved business nomination. If the tribunal were obliged to await the decision on nomination application relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek nomination from different businesses, even though such applications may be continuously refused.
The Applicant submitted that the decision by the Tribunal to refuse the adjournment was a failure by it to exercise reasonably its powers under section 363(1)(b) of the Act. The Applicant submitted that the approach taken by the Tribunal was inconsistent with what was articulated by the High Court of Australia in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (‘Li’). The Applicant in particular pointed to paragraphs of the reasons of Hayne, Kiefel and Bell JJ at [63] and [81]-[83] in support of the submission.
The Applicant was critical of paragraph [52] of the reasons of the Tribunal. It was submitted that the reasoning contained within that paragraph did not pay any or sufficient regard to the circumstances of the Applicant and in particular, her submission in relation to the pending nomination by BW. Instead, it was submitted, that the Tribunal was only concerned with quickness and efficiency and the potential for other applicants to effectively remain in the immigration system by continuing to seek nominations from different businesses.
In order to assess the Applicant’s submissions, it is necessary to review the manner in which the Tribunal approached the decision it ultimately reached not to adjourn the matter to await the outcome of the pending nomination by BW. The following is apparent from a review of the Tribunal’s reasons:
(a)at paragraph [4] of the reasons, the Tribunal set out the background to the matter, including that the Applicant ceased employment on 18 September 2015;
(b)at paragraph [7] of the reasons, the Tribunal acknowledged the nomination application made by BW on 26 October 2016;
(c)at paragraph [7] of the reasons, the Tribunal recorded that the Applicant’s representative conceded grounds for cancellation of the visa exist, and that the Applicant was continuing to seek out another sponsor;
(d)at paragraph [24] of the reasons, the Tribunal recorded it was satisfied that the Applicant had breached a condition of her visa;
(e)at paragraph [27] of the reasons, the Tribunal recorded that it had ‘considered whether to adjourn making [a] decision in this case until the department makes [a] decision on the business nomination application lodged by her new sponsoring employer, Bawa Sahib Pty Ltd’. The Tribunal goes on to record that it had ‘considered whether, in the circumstances of this case, [the Applicant] had a fair opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated her a position within the business. I considered the evidence before me, consequences for the applicant and her family if I do not adjourn making my decision until the department makes a decision on [the] nomination application lodged on 26 October 2016 and decided not to adjourn making [a] decision in this review application’;
(f)at paragraph [34] of the reasons, the Tribunal recorded, in some detail, the submissions of the Applicant to have the matter adjourned pending the outcome the BW Application (as noted above); and
(g)at paragraph [35] of the reasons, the Tribunal noted it was satisfied that the ground for cancellation was made out and that it must proceed to consider whether the visa should be cancelled having regard to all relevant circumstances.
From paragraphs [48]-[58], the Tribunal gave close consideration to the request for an adjournment. In particular:
(a)at paragraph [48], the Tribunal recorded that it has considered the Applicant’s request to adjourn making a decision until there is an outcome from the BW Application and also records that it considered whether ‘in the circumstances of this case, the review applicant had a fair opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated her a position within the business’;
(b)at paragraph [49], the Tribunal states that it had regard to the decisions in Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ;
(c)at paragraph [50], the Tribunal records that it has ‘considered the history of the proceedings, whether the adjournment of [the] decision would be reasonable, having regard to the statutory direction that the Tribunal conduct its review in a manner which is “fair, just, economical, informal and quick” and the reasons that have been put forward by the applicant for the adjournment’;
(d)at paragraph [51], the Tribunal notes that there have been two earlier nominations which have either been refused or withdrawn and goes on to state that there is ‘no evidence before me to indicate whether the new prospective employer was approved as a standard business sponsor. I note that the applicant stated in her evidence that she commenced employment at Mahal Green Olive Restaurant in August 2016 and jet (sic), the new nomination application was not lodged with the Department until two weeks before the hearing’;
(e)at paragraph [52], as noted above, the Tribunal finds that ‘it is uncertain if and when the applicant will become the subject of an approved business nomination’;
(f)at paragraph [54], the Tribunal records that ‘it has been more than 12 months since the applicant ceased her employment with the company that was an approved standard business sponsor’;
(g)at paragraph [55], the Tribunal records that it is ‘satisfied that the applicant was given reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor’; and
(h)at paragraph [56], the Tribunal records that the Applicant may be required to depart Australia if the decision is affirmed and that there is nothing to prevent her from re-applying for a 457 visa once she finds a new employer who is approved.
In my view, when the Tribunal’s reasons are looked at as a whole, they disclose an intelligible justification for its decision not to adjourn the proceedings. Contrary to the Applicant’s submission, the Tribunal was plainly aware of the BW Application and considered whether the proceeding should be adjourned in order to await the outcome of that application. The Tribunal ultimately took the view that it ought not do so in circumstances where the grounds for cancellation of the visa were made out, there had been multiple attempts to find a new sponsor without success, and there was no evidence before it as to whether BW was an approved business sponsor.
While the Applicant submitted that the key finding and reasons of the Tribunal not to adjourn the matter is to be found in paragraph [52] of the reasons, I do not accept that submission. Paragraph [52] of the reasons is one part of the Tribunal’s reasons as to why it decided not to adjourn the proceeding. In paragraph [52], the Tribunal does two things. First, it makes a finding that it is uncertain when the Applicant will become the subject of an approved business nomination. Second, it sets out the other considerations that the Tribunal has taken into account, not related to the circumstances of the case before it, in deciding not to adjourn the matter. Significantly however, paragraph [52] is just one part of the chain of reasoning of the Tribunal as to why it has decided not to adjourn the matter.
The key conclusion reached by the Tribunal to proceed to deal with the matter is to be found in paragraph [58] of the reasons. The conclusion set out in paragraph [58] is reached only after the Tribunal actively considered the range of matters to which I have referred in paragraphs [48]-[58] of its reasons. Those matters include the matters set out paragraph [52] of the reasons, as well as the other matters that relate to the circumstances of the Applicant’s case.
For all of the above reasons, I dismiss Grounds 1 and 2 of the Grounds of Review. The Tribunal did not fail to consider the application of the principles expressed in Li, nor apply a rule or policy without regard to the circumstances of the case. The Tribunal exercised reasonably its powers under section 363(1)(b) of the Act. In my view, the Tribunal’s decision was open to it.
Ground 3
The third ground of review in the Application is:
The Second Respondent made jurisdictional error at paragraph [81] by stating that the Applicant was not prevented from applying for another 457 visa without considering the effect of section 48 of the Migration Act 1958 (the "Act").
The Applicant under this ground of review takes issue with paragraph [81] of the Tribunal’s reasons. That paragraph is as follows:
In any event, the applicant is not prevented from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
In written submissions, the Applicant contended that the finding above completely overlooks the effect of section 48(1)(b)(ii) of the Act.
By the time of the hearing, the Applicant accepted that there was some force in the Minister’s submissions that the Tribunal considered section 48 of the Act. The Applicant contended, however, that while she accepted that section 48 had been considered by the Tribunal, there was not any rational basis put for why the Applicant would not suffer hardship. In short, the Applicant submitted that while the Tribunal had identified hardship as an issue, it needed to weigh that hardship given the consequences which flowed for the Applicant. This was not done and therefore jurisdictional error arises.
The submissions of the Applicant need to be considered in light of the Tribunal’s reasons as a whole. A review of the reasons of the Tribunal discloses that the Tribunal dealt with the issue raised by section 48 of the Act and hardship the Applicant may suffer in paragraphs [56] and [83] of its reasons, in addition to what is contained in paragraph [81] its reasons. In particular:
(a)At paragraph [56] of its reasons, the Tribunal noted that ‘the applicant may be required to depart Australia. There is nothing to prevent the applicant from re-applying for [a] 457 visa once she finds the new employer who is approved as a standard business sponsor’. The Tribunal further noted in paragraph [56] that the Applicant had given evidence that ‘she done [sic] this before when she departed Australia in 2014 in order to lodge an off shore application for a subclass 457 visa’;
(b)at paragraph [83], the Tribunal stated that it ‘is mindful that Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst on short’.
When these paragraphs are considered, two matters become apparent. First, the Tribunal plainly had regard to section 48 of the Act. Second, the Tribunal, in my view, did engage with the consequences for the Applicant of a decision to cancel the visa and weighed them. The Tribunal had a rational basis for its views.
For all of the above reasons, I dismiss Ground 3 of the grounds of review.
OTHER MATTERS
While it is not strictly necessary for me to do so, there is one other matter to raise.
Even if the Tribunal made an error, it would, in my view, be futile to remit the matter to the Tribunal. The subclass 457 visa has been abolished. It is conceptually possible, if the matter were to be remitted, for the Tribunal to assess the Applicant against the criteria in Part 457 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’). However, any attempt to do so would be futile because the Applicant cannot be the subject of a nomination of an occupation approved under section 140GB of the Act (see regulation 457.223(4)(a), section 140GB of the Act, regulations 2.72 and 2.73 of the Regulations as well as items 79 and 80 of Schedule 1 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (‘Amending Regulations’), and item 6704(6) of Schedule 1 to the Amending Regulations. I note that this position has been accepted in this Court in other proceedings: Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868. The consequence is that the Applicant is unable to satisfy subclause 458.223(4)(a) of Schedule 2 to the Regulations .
CONCLUSION
The Application must be dismissed. The Minister seeks scale costs of $7,467. I will make an order for costs as sought.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 30 April 2021
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