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

[2021] FCCA 305

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 305

File number(s):

CAG 14 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

25 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination, (Permanent), (Class RN) visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss 359,

Migration Regulations 1994 (Cth), cl 187.223,

Cases cited:

WZAVW v Minister for Immigration [2016] FCA 760

Number of paragraphs:

30

Date of last submission/s:

17 February 2021

Date of hearing:

17 February 2021

Place:

Parramatta

Solicitor for the Applicants:

The applicants’ appeared in person.

Solicitor for the Respondents:

Ms Crawford appeared on behalf of the first respondent.

ORDERS

CAG 14 of 2020

BETWEEN:

TARNAM KAUR

First Applicant

GULAB BIR SINGH

Second Applicant

PAVLEEN VIRK

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	25 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The First and Second Applicants’ are to jointly and severely pay the First Respondent’s costs, fixed in the amount of $5602.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. On 2 August 2017, the primary applicant applied for a Regional Employer Nomination, (Permanent), (Class RN) visa. The second and third applicants’, are members of the first applicant’s family and rely upon her visa being granted, in order for their visas to be approved.

2. The primary applicant was seeking a visa in the Direct Entry Scheme, to work in the position of Café or Restaurant Manager. The first applicant’s sponsor employer was nominated as Joshi Qld Pty Ltd trading as Devil’s H2O.

3. On 29 January 2019, a delegate of the Minister for Home Affairs (“the delegate”) refused the applicants’ their visas. This decision was based on the fact that the applicants’ sponsor employer nomination had been refused by the Department of Home Affairs (“the Department”) on 29 November 2018. As a result, the primary applicant could not satisfy the requirements of cl 187.223 of the Migration Regulations 1994 (Cth) (“the Regulations”). No application for review of the decision to refuse the first applicant’s employer sponsor nomination was lodged.

4. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 2 March 2020, the Tribunal affirmed the decision of the delegate, to refuse the applicants’ their visas. The decision was on the same basis as the delegate’s, in that the sponsor employer’s nomination had been refused and that decision was not the subject of a current review application.

5. The applicants’ now seek judicial review of the Tribunal decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

6. The Tribunal decision is relatively short. The Tribunal notes that an invitation to comment or respond to information pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) was forwarded to the applicants’ on 18 December 2019, noting that the application by the first applicants’ employer sponsor, Joshi Qld Pty Ltd had been refused and as a result, the first applicant could not satisfy clause 187.223(3) of the Regulations.

7. A response was received, and the applicants’ appeared before the Tribunal on 2 March 2020 to give evidence and present arguments. The applicants’ were represented by a Migration Agent. The Tribunal noted at paragraph 13 of its decision, that the first applicant insisted that she and her husband had paid the sponsor employer in the order of $3000 to lodge the Application for Review. The first and second applicants’ were assured that it had been done and that the sponsor employer was “awaiting a hearing date”. The Tribunal advised the applicants’ that the information contained in the s 369A letter was correct. No Application for Review had been lodged by the sponsor employer.

8. As there was no approved nomination of the first applicant’s sponsor employer, and there was no current application for review by the sponsor employer against the refusal of the nomination, the criterion in cl 187.223(3) of the Regulations, could not met. The Tribunal had no option other than to affirm the delegate’s decision.

   GROUNDS OF JUDICIAL REVIEW

9. The grounds of the application for judicial review are contained within an application lodged with the Court on 25 March 2020. They are as follows verbatim:

   Ground One

   The decision was devoid of plausible justification. I paid my employer the fee for the review in the Administrative Appeals Tribunal for the Regional Employer Nomination application, he told me that he lodged the application. Instead the employer took the money and did not lodge any application for review at the Tribunal. I can provide evidence of my payment if required.

   Ground Two

   It is a Jurisdictional Error because the some of the relevant facts are not considered by the decision-maker. I lodged the review for the Regional Employer Nominated visa application on time and did not have an idea that the employer would not lodge a review for the Regional Employer Nomination application because I even paid for the nomination application charge to the employer. I always tried to follow up with the employer to check if he had lodged the application and send me the acknowledgement, he would always tell me he is going to send me shortly but he did not. I realised he cheated when I appeared for my hearing at the AAT Tribune.

   Ground Three

   Failure to procedural fairness, I was not given a chance nor my clarification was considered. I can provide the confirmation of the money ($3000) paid to the employer (Joshi Pty Ltd) if required and also I request to please investigate about this, so that my case can get fair judgement.

   Ground Four

   My case was misinterpreted by law because even though I possessed the skills and educational qualification my nomination was refused and Since I was in India when the case officer from the Department of Home affairs invited to comment on my visa application I was not aware of it.

   THE APPLICANTS’ SUBMISSIONS

10. The applicants’ appeared before the Court unrepresented. The hearing was conducted by video conference. The first applicant spoke on behalf of all the applicants’ being members of her family. The first applicant was assisted by an Interpreter. At the commencement of the hearing, the Court confirmed that the applicants’ had a copy of the relevant Court Books, that the first respondent’s submissions had been provided to them and that they understood them. The first applicant confirmed that she also had access to a pen and paper to make notes, should she wish to.

11. Notwithstanding Court orders, no written submissions were filed on behalf of the applicants’. A letter dated 23 March 2020 was attached to an Affidavit sworn on 24 March 2020. The Court noted its contents. That letter outlined the same information that had been provided to the Tribunal. In addition, the first applicant noted that she had always been a genuine student, completed her course and abided by all the visa conditions from the time she entered Australia. Because the first applicant paid the fee to employer, she stated that she was assured that he had done the review application in respect of the employer nomination.

12. The first applicant asked the Court in her letter, to grant her a Regional Employer Nomination visa or, if this cannot be granted, a suitable alternative is expected to be provided by the Federal Circuit Court that would let the applicants’ live and work in Australia.

13. The Court carefully explained its role in undertaking judicial review and that this role was different to that of the Tribunal, which undertook merits review. Unless there was a jurisdictional error in the Tribunal decision, the Court would have no option other than to dismiss the application. If a jurisdictional error was apparent on the Tribunal decision, all the Court could do, would be to remit the matter back to the Tribunal for further consideration.

14. The Court carefully explained the issue in relation to the requirement for the first applicant to meet all of the requirements of the relevant legislation in order for her visa to be granted. This included the requirement that there be an approved employer nomination. This was not present in the current situation.

15. The first applicant reiterated that she had paid $3000 to her sponsor employer and had been assured that an Application for a Review had been lodged with the Tribunal. The first applicant said that she had done everything that was required of her. The second applicant, her spouse, asked that they be allowed the opportunity to stay in Australia and raise their child who had been born here.

16. Following the first respondent’s oral submissions, the first applicant was invited to address the Court further, in reply to the first respondent’s oral submissions. The first applicant stated that she had nothing further to say.

    THE FIRST RESPONDENT’S SUBMISSIONS

17. The first respondent submitted that the applicants’ grounds of judicial review are misconceived. The Tribunal was required to apply the relevant criteria for the grant of the visa. The applicants’ accepted in their own grounds, that they did not have an approved employer sponsor nomination in place and that no review application was made, in relation to the refused sponsor nomination application.

18. That being the case, there was no discretion for the Tribunal to grant the first applicant the visa she sought. It was also submitted that there was no failure of procedural fairness. The Tribunal put the first applicant clearly on notice of the relevant difficulties she faced and took additional steps to verify the fact that no review application had been made in relation to the refused employer sponsor nomination application following the hearing.

19. None of the grounds of judicial review can be made out.

    CONSIDERATION.

20. This is an unfortunate situation where it appears that the first applicant has been the victim of a fraud perpetrated by the company purporting to act as her employer sponsor nominator. Whilst the Court can have some sympathy, if the allegations put forward by the first applicant are correct, this does not change the situation in respect of her visa application and those of her family.

21. Without an approved employer sponsor nomination, the first applicant does not meet the requirements of clause 187.223 (3) of the Regulations. In these circumstances, the Tribunal had no option other than to affirm the decision of the delegate.

22. In terms of the grounds of judicial review set out above, ground one does not reveal any jurisdictional error. The decision of the Tribunal was the only decision that was open to it, given the particular factual circumstances as they apply to this case. Whilst the Court has no reason to disbelieve the first applicant that she paid for a review to be lodged by her nominated employer sponsor, and that application was not made, the result is that the first applicant does not meet the legislative requirements and the visa had to be refused.

23. Ground two also reveals no jurisdictional error. All relevant facts were considered by the Tribunal. No particulars have also been provided as to which facts were not considered. This alone is sufficient to dismiss the application: see WZAVW v Minister for Immigration [2016] FCA 760 at [35].

24. Ground three is misconceived. Even if the first applicant had provided written evidence supporting the fact that she paid her employer the sum of $3000 to lodge an application for review of the employer nomination, this would not have made any difference. Further, it is not a matter for the Tribunal to undertake any investigations. It appears that the first applicant has been the subject of a fraud by her purported employer and this is a matter that should be reported to the relevant authorities including, the Police.

25. Ground four is similarly misconceived. As the first applicant did not have an approved sponsor employer nomination, she could not meet the requirements of clause 187.223 of the Regulations. The fact that the first applicant may have met all other requirements in terms of her skills and educational qualifications, is an irrelevant issue.  Grounds three and four revealed no jurisdictional error.

26. None of the pleaded grounds of judicial review reveal any error.

27. As the first applicant cannot meet the requirements for the visa sought, the Tribunal had no alternative other than to affirm the delegate’s decision. As the family members of the first applicant were dependent upon her visa being approved, if it cannot be, then their applications must also fail.

28. As the applicant was unrepresented, The Court carefully reviewed the Tribunal decision. No unarticulated jurisdictional error was apparent on the decision record.

29. Given the circumstances outlined by the first applicant, in that she has been the victim of fraud, the Court urges the appropriate authorities to extend to the first applicant, any discretion that might be available in relation to any other visa that she and her family might be entitled to, including the opportunity to lodge a further application onshore.

    CONCLUSION

30. Accordingly, the application is dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       25 February 2021