Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 876
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 876
File number(s): MLG 2565 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 30 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – show cause hearing - whether the Tribunal failed to adopt principles of natural justice – whether there was a failure to consider documents submitted – no arguable case – application dismissed Legislation: Migration Regulations 1994 (Cth) reg 5.19, cl 187.233 of Schedule 2
Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Number of paragraphs: 24 Date of hearing: 17 March 2021 Place: Heard in Melbourne, delivered in Dandenong Advocate for the Applicants: The First and Second Applicant in person Solicitor for the Applicants: None Solicitor Advocate for the Respondents: Ms O’Grady Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2565 of 2020 BETWEEN: LOVEPREET KAUR
First Applicant
CHETAN KANDA
Second Applicant
MYRA KANDA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The Application filed on 17 July 2020 be dismissed.
2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $3,737.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 6 July 2020. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Primary Applicant (‘Applicant’), and the second and third named Applicants, (collectively, ‘Applicants’) the Regional Employer Nomination (Permanent) (Class RN) visas (‘visa’).
For the reasons that follow, I dismiss the application for review.
BACKGROUND
The Applicant is an Indian national. The Applicant arrived in Australia in 2009 as the holder of a student visa.
The Applicant applied for the visa on 11 May 2017. She sought the visa to work in the nominated position of Graphic Pre-press Trades Worker (‘Position’). Print a Portal Pty Ltd is identified as the nominating business (‘Company’).
Separately, also on 11 May 2017, the Company made an application to the Department. The Company applied to nominate the Position under regulation 5.19 of the Migration Regulations 1994 (‘Regulations’). The application by the Company was refused by a delegate of the Minister on 21 July 2017.
On 21 July 2017, the Department wrote to the Applicant. The Department advised the Applicant that the nomination by the Company in respect of the Position had been refused. In the letter, the Department advised the Applicant there was no possibility of her application being approved and invited her to withdraw the application. The Department also advised the Applicant that if the Application was not withdrawn, it would be refused.
On 5 September 2017, the delegate refused to grant the Applicant the visa.
On 20 September 2017, the Applicants applied to the Tribunal for review of the delegate’s decision.
On 25 February 2020, the Tribunal determined the application brought by the Company for review of the delegate’s decision with respect to the Position. The Tribunal relevantly affirmed the decision of a delegate not to approve the nomination of the Position that had been sought by the Company.
On 4 March 2020, the Tribunal wrote to the Applicants. The Applicants were invited to respond to information that the Department considered would be the reason, or part of the reason, to affirm the decision under review. The information given to the Applicants was that the application for approval of the Position made by the Company had been refused by the Tribunal.
On 7 April 2020, the Applicant sent a written submission to the Tribunal.
The Applicant appeared before the Tribunal on 23 June 2020.
On 6 July 2020, the Tribunal affirmed the decision not to grant the Applicants the visa.
The Applicant filed an application for review (‘Application’) and affidavit in support in this Court on 17 July 2020. Orders were subsequently made by Registrar Carlton for the filing of materials and listing the matter for a show cause hearing. The Minister filed submissions in accordance with those orders. The Applicant did not file any further material or submissions.
It is necessary to record one further matter. As I have noted, the separate nomination submitted by the Company was refused by the Department and that decision was affirmed by the Tribunal. The Company is operated by Mr Chetan Kanda. He is the spouse of the Applicant (Court Book 3). The Company also sought a review of the decision of the Tribunal in this Court. The Company’s application was listed before me for a hearing as to ‘competency’ of that application. Both the present matter, and the hearing of the Company’s application and whether it was competent, were listed before me and heard together.
THE APPLICATION
There are six grounds of review in the Application. These are as follows.
1.That the second respondent erred in law by not adopting principles of natural justice whereby the second respondent’s same learned member heard both merits reviews, first in relation to the associated Nomination application refusal and another in relation to refusal of Regional Employer Nomination Visa application;
2.That the second respondent whilst hearing the first matter proposed that if nominee may prove continuous employment with the nominating business, the second respondent will consider the nominated position as genuine. The second respondent failed to consider the documentation pertaining to two years employment and affirmed the original decision without evaluating the relevant information, the information which if would have taken into consideration would have resulted into setting aside the decisions of the first respondent;
3.That the second respondent committed jurisdictional error by not weighing the vital information provided at the time of hearing of associated merits review for nomination. The second respondent made its own impugned decision of merits review in relation to refusal of nomination application as basis to affirm the present merits review.
4.That the second respondent did error of law by wrongfully applying the terms and conditions of the employment even before the actual commencement of full-time employment which was subjected to approval of the visa application as per the employment agreement.
5.That the second respondent did error of law by affirming the refusal decision of the first respondent and by not considering the business financials, Business Activity Statements as unverifiable documents whereas the documents are duly lodged with ATO and are verifiable.
6.The second respondent based its decision on the cl. 187.233 of Migration Regulations 1994 as not met, whereas the decision to refuse and affirm refusal of nomination is in itself infected by legal error.
Consideration of these grounds must begin with a review of the Tribunal’s decision. The decision of the Tribunal is of short compass. In summary, the Tribunal:
(a)identified that the delegate had refused to grant the visa because the Applicant did not meet clause 187.233(3) of Schedule 2 to the Regulations because there was not an approved nomination in place: at paragraph [5];
(b)noted that the Tribunal had separately affirmed the decision of the Department to refuse approval of the nomination submitted by the Company: at paragraph [6];
(c)noted that it put the information above to the Applicant in writing and received a response from her: at paragraphs [7]-[8];
(d)considered that the written submission received from the Applicant appeared to be a request to reconsider the decision the delegate made refusing the nomination submitted by the Company. The Tribunal noted that the matter was no longer before the Tribunal and the submissions were misconceived: at paragraph [9];
(e)identified that the primary issue before the Tribunal was whether the Applicant could satisfy clause 187.233 of Schedule 2 to the Regulations: at paragraphs [12]-[13];
(f)found that there was not an approved nomination for the visa application and therefore that the application could not succeed because the requirements of clause 187.233 were not met: at paragraphs [15]-[16].
It is important to note briefly the content of the relevant regulation. Regulation 187.233 relevantly provided as follows:
(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 the 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 nominations 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.
Grounds 2 – 5 of the Grounds of Review take issue with the Tribunal’s decision to affirm the decision of the delegate not to approve the nomination submitted by the Company. For example, Ground 2 of the Application asserts a failure by the Tribunal to consider information pertaining to employment history. Under Ground 3, it is contended that vital information was not properly weighed. Under Ground 4, is contended that the Tribunal wrongfully applied the terms and conditions of employment before the actual employment commenced. Under Ground 5, it is contended that there was a failure to consider financial documentation described as ‘unverifiable’. None of these matters are relevant to the issues before me in the present matter. All of them go to the decision by the Tribunal in respect of the Company’s application to approve the nomination of the Position. The Applicants in the present matter do not have standing to challenge the separate decision of the Tribunal in relation to the Company’s application to approve the Position. Only the Company has standing to challenge the earlier decision of the Tribunal in relation to the approval of the Position. Accordingly, these grounds do not raise an arguable claim for relief in the present matter.
Under Ground 1, the Applicant claims that she was denied natural justice because the same Tribunal member heard and determined both the present matter, and the Company’s application in respect of the Position. In oral submissions before me, she also asserted bias by the Tribunal member. I understood the submission in relation to bias to arise principally from the fact that the same Tribunal member heard and determined both the Applicant’s application, and also the Company’s application in respect of the Position.
I am unable to discern any principle of general application which produces the result that in all cases, a member of a tribunal who hears two separate but related matters contravenes the natural justice requirements. The Applicant did not point to any authority for the proposition. Further, the Applicant did not identify any specific conduct of the Tribunal member in question which was said to result in the natural justice requirements being contravened. There is certainly no requirement that a tribunal member come to a review without knowledge of the case from material filed, or preliminary views about an issue: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507. Furthermore, a review of the decisions in each of the matters does not disclose, for example, that findings as to credit were made which might give rise to some prejudice or prejudgement by the Tribunal member in question. For these reasons, in my view, Ground 1 does not give rise to an arguable case in relation to breach of natural justice or bias.
Under Ground 6, the Applicant contends that the decision of the Tribunal is infected with error because the decision by the Tribunal in relation to the Company’s application to approve the Position was itself infected by error. There are two matters to note about this. First, I have considered the Company’s application in this Court and have separately determined that the Tribunal did not make an error in respect of it. Second, the Applicants in this matter, as I have noted previously, do not have standing to challenge the decision of the Tribunal in relation to the application by the Company in respect of the Position. For these reasons, Ground 6 of the Application does not give rise to an arguable case.
There is one further matter to note. Even if I have committed error in the reasons above, I would not remit the matter to the Tribunal. Clause 187.233(3) of Schedule 2 of the Regulations requires an applicant to have an approved nomination at the time of the decision. That criteria can only be satisfied by approval of the original nomination. It cannot be satisfied or assessed against a new nomination application subsequently lodged by an employer: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82]-[90].
CONCLUSION
For all of the above reasons, the Application fails to raise an arguable case. I dismiss the Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001. The Minister seeks scale costs of $3,737. I will make an order for costs as sought.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 30 April 2021
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